scholarly journals Forum Non Conveniens in Australia: A Comparative Analysis

2009 ◽  
Vol 38 (3) ◽  
pp. 207-244 ◽  
Author(s):  
Anthony Gray
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
The Us ◽  
Forum Non Conveniens ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Uk

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications.

Property

2019 ◽  
pp. 278-304
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Common Law ◽  
Foreign Country ◽  
Private International Law ◽  
The United Kingdom ◽  
The Common ◽  
The Law ◽  
The Eu

This chapter discusses English private international law in terms of property. The private international law of property covers immovable and movable property, tangible and intangible property, as well as intellectual and family property. In the United Kingdom, most of the conflicts rules are established by the common law. Although the EU intervened to harmonize private international law in the fields of succession to property and matrimonial property, those Regulations did not extend to the United Kingdom. Where the conflicts rules are found in the common law, a court may be entitled to apply the law selected in its renvoi sense: that is to say, to apply the law (including any conflicts rules) as it would be applied by a judge sitting in the foreign country and hearing the case himself.

Capacity to Create a Trust: The Onshore Problem, and the Offshore Solutions

2002 ◽  
Vol 6 (2) ◽  
pp. 176-198 ◽  
Author(s):  
Paul Matthews
Keyword(s):  
International Law ◽  
Common Law ◽  
Private International Law ◽  
Cayman Islands ◽  
Family Wealth ◽  
The Common ◽  
The Law ◽  
Special Rules ◽  
Personal Law

The Common Law rules of private international law on the capacity of a person to create a trust are peculiarly difficult to ascertain. It is submitted that, despite the claims of other candidates (such as the proper law of the trust, the law of the situs of the trust assets, and even the settlor's nationality), the law of the settlor's domicile should govern capacity of the settlor (i) to make a contract to create a trust, (ii) to transfer ownership of moveable property to the trustee, and (in) to impose the trust obligation on the trustee. Capacity of the settlor to transfer immovables to the trustee is, however, governed by the lex situs. Some offshore trust jurisdictions have enacted special rules relating to capacity to create a trust. Two main models may be distinguished, that of Jersey and that of the Cayman Islands. These rules were mainly designed to deal with a quite different problem, namely that of the settlor whose personal law includes rules on the protection of family wealth, such as so-called “forced heirship”". Whether the offshore rules actually succeed in avoiding the problem is, however, open to doubt in some cases.

Torts in Private International Law: A New Statutory Framework

1996 ◽  
Vol 45 (4) ◽  
pp. 888-902 ◽  
Author(s):  
C. G. J. Morse
Keyword(s):  
International Law ◽  
Common Law ◽  
General Rule ◽  
Private International Law ◽  
Choice Of Law ◽  
Applicable Law ◽  
The Common ◽  
The Law

Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

Choice of Law Methods in the Private International Law of Contract

1981 ◽  
Vol 18 ◽  
pp. 161-200
Author(s):  
Joost Blom
Keyword(s):  
United States ◽  
International Law ◽  
Common Law ◽  
The United States ◽  
Private International Law ◽  
Legal Systems ◽  
Choice Of Law ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

This article examines the choice of law methods developed in four legal systems for problems relating to the substantial or essential validity of contracts. The complicated questions of formation and capacity have had to be left aside. The first two parts of this article discussed the choice of law methods used by courts in France, Germany, and the United States. This concluding part deals with the law in England and the common law jurisdictions in Canada, and also, by way of epilogue, with the recently completed European Communities Convention on the law applicable to contractual obligations. Finally, some general conclusions will be offered about the patterns of law that have emerged in the course of this survey.

Part V Financial Wrongdoing and Private International Law, 15 Knowing Receipt

2017 ◽  
Author(s):  
Douglas Zachary ◽  
Bodnar Andrew
Keyword(s):  
International Law ◽  
Common Law ◽  
Fiduciary Duty ◽  
Private International Law ◽  
Applicable Law ◽  
The Common ◽  
The Law ◽  
Real Scenario ◽  
Financial Wrongdoing

This chapter deals with issues related to knowing receipt. For an equitable claim for knowing receipt to succeed, the claimant must establish the disposal of his money in breach of fiduciary duty and, secondly, the beneficial receipt of that money by the defendant which is traceable as the claimant’s money where, thirdly, the defendant had the requisite degree of knowledge of the breach of fiduciary duty. This claim has been said to be the equitable counterpart of the common law action for money had and received. The chapter then looks at a real scenario of a case of knowing receipt. It also examines the relevant jurisdiction and applicable law, including the law applicable to the issue of liability for knowing receipt.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

1. The historical origins of the trust

2019 ◽  
pp. 1-13
Author(s):  
JE Penner
Keyword(s):  
Common Law ◽  
The Core ◽  
Administrative Power ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Historical Origins

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter traces the historical roots of the trust. The law of trusts is the offspring of a certain English legal creature known as ‘equity’. Equity arose out of the administrative power of the medieval Chancellor, who was at the time the King’s most powerful minister. The nature of equity’s jurisdiction and its ability to provide remedies unavailable at common law, the relationship between equity and the common law and the ‘fusion’ of law and equity, and equity’s creation of the use, and then the trust, are discussed.

The Influence of Swiss Private International Law on the Italian Codification

2002 ◽  
Vol 30 (2) ◽  
pp. 244-255
Author(s):  
Andrea Bonomi
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Information Society ◽  
Comparative Law ◽  
The Other ◽  
The Internet ◽  
Private International Law ◽  
The Subject ◽  
The University

The subject of this contribution is the influence of Swiss Private International Law (PIL) on the Italian codification. This topic could be regarded as rather old-fashioned. One of the terms of the comparison, the Italian statute of private international law, goes back to May 1995 and the other, the Swiss PIL Act, is even older, almost “prehistoric” since it was adopted in 1987 and entered into force on the 1st January 1989, that means in an era which preceded the advent of the Internet and the “Information Society.” Not even the idea of comparing these two pieces of legislation is an entirely new one, since a very accurate comparative analysis of the two codifications has already been done by Mr. Dutoit, professor of PIL and comparative law at the University of Lausanne, in an article of 1997.

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