Some distinctive features of the common law and the response of the Hague Conference

2010 ◽  
pp. 281-284
Keyword(s):  
Common Law ◽  
Distinctive Features ◽  
The Common ◽  
The Hague

scholarly journals DO PRECEDENTS CREATE RULES?

Legal Theory ◽  
2005 ◽  
Vol 11 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Grant Lamond
Keyword(s):  
Decision Making ◽  
Basic Assumption ◽  
Common Law ◽  
Rule Based ◽  
Distinctive Features ◽  
Conventional View ◽  
Adequate Theory ◽  
The Common

The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules—they are better understood as a special type of reason.

Cargo Risks: “Dangerous” Goods

1996 ◽  
Vol 55 (3) ◽  
pp. 601-613 ◽  
Author(s):  
F. D. Rose
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Contractual Obligation ◽  
Dangerous Goods ◽  
Specific Rule ◽  
The Common ◽  
The Hague ◽  
Merchant Shipping

A shipper does not have unlimited freedom as to what he may have transported by sea. Restrictions on the goods which a charterer or cargo-owner may ship are imposed by the common law, the terms of the contract and statute. The statutory sources of control of what are normally referred to as dangerous goods may be divided into three categories: those under the Hague-Visby Rules (principally art. IV(6)); those under the Merchant Shipping Act 1995; and other legal sources. Provision is also made by the Hamburg Rules. Where a prohibition against the shipment of goods is not laid down by an express contractual obligation or specific rule of law, it is likely to be treated as depending on an implied term or collateral warranty.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

scholarly journals The Common Law Choice of Law Rules for Resulting and Constructive Trusts

2005 ◽  
Vol 54 (4) ◽  
pp. 855-883 ◽  
Author(s):  
Adeline Chong
Keyword(s):  
Common Law ◽  
Hague Convention ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Common ◽  
The Hague ◽  
English Law ◽  
The Law ◽  
The Hague Convention ◽  
Rules Set

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

scholarly journals 2018 WA Lee Equity Lecture:

2019 ◽  
Vol 18 (2) ◽  
pp. 137
Author(s):  
David Russell AM RFD QC
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Hague Convention ◽  
Honorary Member ◽  
Teaching Community ◽  
University College ◽  
The Common ◽  
The Hague ◽  
The One ◽  
Fiduciary Liability

May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College. At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee.  So to give this lecture before an audience including Tony Lee, fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections.  It is small consolation that, on this occasion at least, he will not be marking the paper.  In choosing the topic for the paper, I had in mind a paper given by the Hon Dyson Heydon, AC QC, to the first STEP Australia Conference.[2]  Mr Heydon QC observed that: This paper is an edited version of a paper presented at the 2018 WA Lee Equity Lecture delivered on 21 November 2018 at the Banco Court, Supreme Court of Queensland, Brisbane. * AM RFD QC; BA (UQ), LLB (UQ), LLM (UQ). [1] Adopted by Australia and implemented in the Trusts (Hague Convention) Act 1991 (Cth). [2] JD Heydon, ‘Modern Fiduciary Liability: the Sick Man of Equity’ (2014) 20 Trusts & Trustees 1006.

scholarly journals Equitable Compensation for Breach by Fact-Based Fiduciaries: Tentative Thoughts on Clarifying Remedial Goals

1969 ◽  
Vol 37 (1) ◽  
pp. 95
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Punitive Damages ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Common

The Supreme Court of Canada has purported to distinguish the approach to quantifying equitable compensation from that applied to the quantification of damages in common law for breach of contract or tort. In particular, the rules associated with causation and remoteness and the application of evidential presumptions has dominated this discourse. In this comment the author suggests that these distinctions are adding to conceptual muddling of the fiduciary relationship and that it would be better for the court to embrace totally the sophisticated analytical rules of the common law rather than recreate new rules in equity. Further, he argues that the distinctive features of the fiduciary relationship would be better recognized through the application of punitive damages rather than the distortion of compensation principles.

scholarly journals Civil Law and Common Law: Two Different Paths Leading to the Same Goal

2001 ◽  
Vol 32 (3) ◽  
pp. 817 ◽  
Author(s):  
Caslav Pejovic
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Issues ◽  
Distinctive Features ◽  
Theoretical Examination ◽  
Legal Structure ◽  
Procedural Law ◽  
The Common ◽  
Substantive Law

"There are many ways to skin a cat".While there are many legal issues which are dealt with in the same way by the civil law and Common Law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts and terminology. This paper does not deal with theoretical examination of differences between the common law and the civil law, but focuses rather on various distinctive features of civil law and common law, with several illustrations of resulting differences in both substantive law and procedural law. These differences are not examined in detail as they should serve only as illustration of those differences. The paper does not enter into polemic as to which legal system is better and what are the advantages of common law or of civil law. The purpose of this short study is simply to highlight some of the main conceptual differences between common law and civil law systems, and to explore the possibilities of reconciling of some of those differences.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 24 India: Indian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
Member State ◽  
International Law ◽  
Common Law ◽  
Primary Source ◽  
Case Law ◽  
Private International Law ◽  
Rules And Principles ◽  
The Common ◽  
The Hague ◽  
The Republic

This chapter provides comments on the Hague Principles from the perspective of Indian private international law of contract. The Republic of India inherited the English common law, also in the field of private international law. Case law is the primary source of Indian private international law of contract. Rooted in the common law tradition, the courts would certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of private international law. In any event, the Hague Principles were adopted on March 19, 2015, by consensus between all Member States of the Hague Conference on Private International Law, including India, which has been a Member State since March 13, 2008. The chapter then demonstrates that the Hague Principles have real potential to assist in the interpretation, supplementation, and development of Indian private international law of contract.

Part III Jurisdiction, Foreign Judgments and Awards, 16 Recognition and Enforcement of Foreign Judgments—The Traditional Rules

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Family Law ◽  
Common Law ◽  
Hague Convention ◽  
Administration Of Justice ◽  
Recognition And Enforcement ◽  
The Common ◽  
The Hague ◽  
Foreign Judgment ◽  
The Hague Convention

This chapter focuses on the recognition and enforcement of foreign judgments under the traditional rules. It begins with a discussion of the theory underlying recognition and enforcement, followed by an analysis of enforcement under the Brussels/Lugano system and family law. It then considers the principles on which the successful litigant may take advantage of a foreign judgment at common law, along with defences to recognition and enforcement of such judgments. It also examines direct enforcement of foreign judgments by statute such as the Civil Jurisdiction and Judgments Act 1982, Administration of Justice Act 1920, and the Hague Convention on Choice of Court Agreements 2005. Finally, it assesses the inter-relation of the common law rules of recognition and those provided by statute (other than the Civil Jurisdiction and Judgments Act 1982), especially in the fields of jurisdiction and defences, and the jurisdictional provisions of Brussels I Recast.

Sign in / Sign up

Export Citation Format

Share Document