scholarly journals Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

2013 ◽  
Vol 32 (1) ◽  
pp. 67-74
Author(s):  
Katarzyna Bagan-Kurluta
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Case Law ◽  
Functional Method ◽  
Internal Source ◽  
Private International Law ◽  
Uniform Approach ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

The Lex Fori

2019 ◽  
pp. 172-194
Author(s):  
Adrian Briggs
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
English Court ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

Non-Contractual Obligations

2019 ◽  
pp. 244-277
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
Eu Law ◽  
Eu Legislation ◽  
The United Kingdom ◽  
The Law ◽  
Contractual Obligations

This chapter discusses the law on non-contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome II Regulation, Regulation 864/2007, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome II Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome II Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

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.

Contractual Obligations

2019 ◽  
pp. 195-243
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
Eu Law ◽  
Eu Legislation ◽  
The United Kingdom ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I

This chapter discusses the law on contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome I Regulation, Regulation 593/2008, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome I Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome I Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

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.

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.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

Corporations

2019 ◽  
pp. 334-352
Author(s):  
Adrian Briggs
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Private International Law ◽  
The United Kingdom ◽  
Insolvency Regulation ◽  
Principal Effect ◽  
European Regulations ◽  
English Law ◽  
Insolvency Proceedings

This chapter discusses the private international law of insolvency and bankruptcy. Prior to Exit Day, the private international law of insolvency and bankruptcy was covered in part by two European Regulations: the Insolvency Regulation 1346/2000, and the recast Insolvency Regulation 2015/848. According to the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019 No 146, a fragment of Regulation 2015/848 is retained as English law, but otherwise it is not retained as English law. The principal effect of this is that the court will continue to have jurisdiction to open insolvency proceedings when the debtor’s centre of main interests is in the United Kingdom. Otherwise Part 1 of the Schedule to SI 2019 No 146 provides that the recast Insolvency Regulation shall not have effect in the United Kingdom. Consequential amendment is made to secondary legislation. Transitional provisions are made to provide for the continued application of the Regulations after Exit Day in the case of insolvency proceedings opened before Exit Day.

Introduction

2019 ◽  
pp. 1-42
Author(s):  
Adrian Briggs
Keyword(s):  
European Union ◽  
United Kingdom ◽  
International Law ◽  
Legal Framework ◽  
Private International Law ◽  
The European Union ◽  
The United Kingdom ◽  
The Common ◽  
Law And Legislation

This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

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