scholarly journals Controller and Auditor-General v Davison: Three Comments

1996 ◽  
Vol 26 (2) ◽  
pp. 459
Author(s):  
W K Hastings
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Case Note ◽  
Private International Law ◽  
Sovereign Immunity ◽  
Cook Islands ◽  
French Version ◽  
Auditor General

This article is a case note of Controller and Auditor-General v Davison CA 226/95, 16 February 1996. The case involved an application for judicial review of an order by the "Winebox" Commission of Inquiry to the Audit Office and KPMG Peat Marwick to produce documents relating to their functions as Government Auditor of the Cook Islands. The three authors make comments about the case and its impact on private international law, noting in particular the doctrine of sovereign immunity. *NOTE: a French version summary is provided at 476.

The distinctive status of international arbitration agreements in English private international law?

2020 ◽  
Vol 36 (3) ◽  
pp. 419-427
Author(s):  
Myron Phua ◽  
Matthew Chan
Keyword(s):  
International Law ◽  
Case Note ◽  
Private International Law ◽  
International Arbitration ◽  
Previous Approach ◽  
English Court ◽  
Exclusive Jurisdiction ◽  
Arbitration Clause ◽  
Cast Doubt ◽  
Forum Non Conveniens

Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

2021 ◽  
Vol 9 ◽  
pp. 67-86
Author(s):  
Thato M Moloto
Keyword(s):  
International Law ◽  
South African ◽  
Common Law ◽  
Copyright Infringement ◽  
Case Note ◽  
Private International Law ◽  
Cross Border ◽  
Territorial Approach ◽  
Local Courts

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

Appeal Dismissed: English Courts on Foreign Judgments

2018 ◽  
Vol 26 (3) ◽  
pp. 477-480
Author(s):  
Luke Tattersall
Keyword(s):  
International Law ◽  
Fair Trial ◽  
Case Note ◽  
Appellate Court ◽  
Private International Law ◽  
England And Wales ◽  
Court Of Appeal ◽  
Made In

Case note considering a recent Court of Appeal authority regarding a claim brought in England by an Ethiopian party who was displeased with the outcome of litigation in Ethiopia. The Appellants were alleging that they had not received a fair trial in Ethiopia. The Court of Appeal have firmly stated that the English courts will not act as a supranational appellate court to decisions made in other jurisdictions. The case reaffirms the principle of comity within private international law and helps delineate the boundaries regarding cases brought in England and Wales which have no connection with the jurisdiction.

New Zealand Court of Appeal: Judgment in Controller and Auditor–General V. Sir Ronald Dawson

1997 ◽  
Vol 36 (3) ◽  
pp. 721-743
Author(s):  
Michael Bvers
Keyword(s):  
New Zealand ◽  
Judicial Review ◽  
House Of Representatives ◽  
Income Tax ◽  
Cook Islands ◽  
Tax Haven ◽  
Inland Revenue ◽  
Auditor General ◽  
Court Of Appeal

On February 16, 1996 the New Zealand Court of Appeal rendered judgment on three applications for judicial review arising out of what had come to be known in New Zealand as the “Winebox Inquiry”. The Inquiry began as the result of certain documents being tabled (in a winebox) before the New Zealand House of Representatives. It was alleged that the documents implicated several New Zealand companies in the evasion of New Zealand income tax by the use of the Cook Islands as a tax haven, and that the New Zealand Inland Revenue Department and Serious Fraud Office had been incompetent at the least in failing to detect and prevent the abuse.

Diversity and Integration in Private International Law

2019 ◽  
Keyword(s):  
South America ◽  
International Law ◽  
Value Systems ◽  
Private International Law ◽  
Diverse Range ◽  
Cross Border ◽  
Wide Range ◽  
Depth Analysis ◽  
And Shifts ◽  
Substantive Law

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.

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