Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- 1 Introduction
- A Introduction
- B The Common Law Approach to Private International Law
- (1) Territoriality
- (2) Equity operates in personam
- (3) Pragmatism
- (4) The role of statutes in a common law structure
- (5) Judicial development of the common law rules
- (6) Terminology
- (7) The European period of private international law in English courts
- (8) Private international law after cancellation of membership of the European Union
- 2 Tools and Techniques
- A Introduction
- B The Law
- (1) The application of foreign law in English courts
- (b) If foreign law is potentially applicable, it cannot apply unless it is pleaded
- (c) A party relying on an applicable foreign law, and who asserts that its rules differ from those of English law, must prove what is asserted
- (i) The rules of foreign law are to be established by witness evidence
- (ii) Witness expertise in foreign law
- (iii) The meaning of the rules of foreign law when the content is debatable
- (iv) Re-thinking the method of proving the content of the rules of foreign law
- (v) Failing to establish the content of rules of applicable foreign law
- (vi) Failing even to try to adduce evidence of the rules of foreign law relied on
- (d) Foreign law may be applied unless contradicted by English legislation or rules of public policy
- (e) Alternative approaches
- (f) The precise application of foreign law
- (2) The characterization of legal issues to identify the law to apply
- (3) The meaning of law and the principle of renvoi
- (4) The treatment of incidental questions of applicable law
- (5) The nature of common law connecting factors in general
- (6) The personal connecting factors: domicile, residence, and nationality
- (7) The operation of English statutes in the conflict of laws
- (b) Reading an English statute as applicable in spite of the conflict of laws
- (8) The common law principle of comity
- (9) The legacy of the separate history of common law and equity
- (10) Dissatisfaction with the basic approach of the common law rules
- (11) The common law approach to issues of procedure
- (12) The prohibition on enforcement of foreign penal, revenue, and public laws
- (13) The overriding effect of English public policy
- (14) The application of European Law in an English court
- (a) Application of EU law as though the United Kingdom were still a Member State
- (b) The interpretation of retained EU laws
- (c) The general principles of EU law that will apply to retained EU laws
- (d) The interpretation of English law which is derived from rules of EU law but which were not retained as such
- (e) Rulings of the European Court given before and after 31 December 2020
- (f) The Supreme Court and the pre-2021 case law of the European Court
- (g) The Court of Appeal and the pre-2021 case law of the European Court
- (h) The status of questions of EU law before an English court
- 3 Jurisdiction
- A Introduction
- B The Law
- (1) The various meanings of jurisdiction
- (2) Circumstances in which an English court has no jurisdiction to exercise
- (3) Sources of the law which define personal jurisdiction
- (a) Common law jurisdiction: service on a defendant present within the jurisdiction
- (b) International convention given effect in English law
- (c) Legislation allowing service in England on an agent or representative
- (d) Legislation giving court power to authorize service out of the jurisdiction
- (e) Legislation creating jurisdiction and giving claimant the right to serve out of the jurisdiction
- (f) Discretion in relation to the existence and exercise of jurisdiction by service
- (4) Contracts or terms which have jurisdiction as their subject matter
- (a) The common law approach to choice of court agreements
- (i) The law that governs a choice of court agreement
- (ii) The meaning of a choice of court agreement: material scope
- (iii) The meaning of a choice of court agreement: personal scope
- (iv) The meaning of a choice of court agreement: exclusive or otherwise
- (v) The meaning of a choice of court agreement: the nature of interpretation
- (vi) The validity of a choice of court agreement in a contract whose validity is impugned
- (vii) The validity of a choice of court agreement: invalidity of the agreement itself
- (viii) The nature of choice of court agreements in the common law system
- (ix) Consequences of breach of choice of court agreement
- (b) Jurisdiction agreements under the former Brussels/Lugano scheme
- (c) The 2005 Hague Convention on Choice of Court Agreements
- (a) The common law approach to choice of court agreements
- (5) Jurisdiction over defendant present in England (I): jurisdiction by service as of right
- (6) Jurisdiction over defendant present in England (II): disputing the exercise of jurisdiction based on service as of right
- (7) Jurisdiction over defendant not present in England (I): when jurisdiction does not depend on permission to serve defendant out of the jurisdiction
- (a) Claims involving consumers and employees
- (i) The context in which these provisions apply
- (ii) The definition of a consumer for the purposes of these provisions
- (iii) The identification of a contract as a consumer contract
- (iv) Proceedings that relate to a consumer contract
- (v) The applicable rules of jurisdiction
- (vi) The definition of employee for the purposes of these provisions
- (vii) The definition of the contract as one of individual employment
- (viii) Proceedings that relate to a contract of employment
- (ix) The applicable rules of jurisdiction
- (x) The nature of jurisdiction created under Section 15A
- (b) Claims covered by choice of court agreement for the English court
- (i) English choice of court agreements within the 2005 Hague Convention
- (ii) General conditions for the 2005 Convention to apply to the agreement
- (iii) Exclusive choice of court agreements
- (iv) Creation or recording of exclusive choice of court agreement
- (v) Interpretation and validity of exclusive choice of court agreement
- (vi) English choice of court agreements and the Hague Convention: summary
- (vii) English choice of court agreements outside the 2005 Hague Convention
- (c) Other cases in which the court has jurisdiction despite the absence of the defendant
- (a) Claims involving consumers and employees
- (8) Jurisdiction over defendant not present in England (II): when jurisdiction depends on permission to serve defendant out of the jurisdiction: general structure
- (9) Jurisdiction over defendant not present in England (III): when jurisdiction depends on permission to serve defendant out of the jurisdiction: the 38 gateways
- (a) Claims concerning general issues in litigation
- (i) Paragraph (1): claims against English domiciliaries
- (ii) Paragraph (1A): claims arising from English branches or agencies, &c
- (iii) Paragraph (2): injunctions
- (iv) Paragraph (3): necessary or proper parties to the claim
- (v) Paragraph (4): Part 20 claims (necessary or proper party to the defence)
- (vi) Paragraph (4A): necessary or proper further claims
- (vii) Paragraph (5): interim remedies
- (viii) Paragraph (16A): declarations of non-liability
- (ix) Paragraph (18): third-party costs orders
- (x) Paragraph (24): Contempt applications
- (xi) Paragraph (25): Information orders against non-parties
- (b) Claims concerning contracts
- (i) Paragraph (6): a contract
- (ii) Paragraph (6): the link between the contract and England
- (iii) Paragraph (6): the nature of the claim
- (iv) Paragraph (8): claims which deny the contract
- (v) Paragraph (7): claims in respect of a breach of contract
- (vi) Paragraph (8A): aiding and abetting the breaking of contract
- (c) Claims concerning torts, confidence, and misuse of private information
- (i) Paragraph (9): a claim made in tort
- (ii) Paragraph (9): defamation
- (iii) Paragraph (9)(a): damage sustained within the jurisdiction
- (iv) Paragraph (9)(b): an act committed within the jurisdiction
- (v) Paragraph (9): claim governed by law of England and Wales
- (vi) The proper place requirement in the context of claims made in tort
- (vii) Paragraphs (21) to (23): breach of confidence and misuse of private information
- (d) Claims about property, trusts, and estates
- (i) Paragraph (11): claims about property within the jurisdiction
- (ii) Paragraphs (12) to (15A): a trust
- (iii) Paragraph (12): claims in respect of a trust governed by English law
- (iv) Paragraph (12A): trusts with English jurisdiction clauses
- (v) Paragraph (12B): trusts designating England as place of administration
- (vi) Paragraph (12C): trusts created in England
- (vii) Paragraph (12D): declarations that no trust has arisen
- (viii) Paragraph (12E): breach of trust within the jurisdiction
- (ix) Paragraph (15): claim against trustee of constructive or resulting trust
- (x) Paragraph (15A): aiding and abetting a breach of trust
- (xi) Paragraphs (13) and (14): administration, probate, and wills
- (e) Claims about breach of fiduciary duty
- (f) Claims for restitution
- (g) Claims about enforcement of judgments and awards
- (h) Claims arising under various statutes
- (a) Claims concerning general issues in litigation
- (10) Jurisdiction over defendant not present in England (IV): disputing the grant of permission to serve defendant out of the jurisdiction
- (11) Section 16; and jurisdiction within the United Kingdom
- (12) Law reform
- 4 Ancillary Measures
- A Introduction
- B The Law
- (1) Judicial assistance in the service of process outside the territory of the issuing court
- (2) Judicial assistance in the obtaining of evidence for use in a foreign proceeding
- (3) Judicial assistance to the claimant, by ordering the identification and preservation of assets or wealth
- (a) The freezing injunction: general
- (b) Jurisdiction to make the order; service of the document claiming the relief
- (c) The location of the property referred to in the order: English law
- (d) The effect on non-parties, or persons not directly addressed by the order
- (e) Relief where the substantive proceedings are before an overseas court
- (4) Judicial assistance to the defendant, by ordering security for costs
- (5) Judicial hindrance of foreign proceedings: the anti-suit injunction
- (a) General synopsis
- (b) The law
- (i) Personal jurisdiction over the respondent
- (ii) Grounds for relief
- (iii) Injunction to enforce a legal right not to be sued in the foreign proceedings
- (iv) Injunction to restrain commission of an equitable wrong
- (v) Injunction to protect and defend the English court’s jurisdiction
- (vi) Injunctions justified on other or ancillary bases
- Injunction to restrain third party enforcing (derived) rights created by another’s contract.
- Injunctions and others positioned just outside choice of court agreements.
- Injunction to restrain wrongful enforcement of a foreign judgment.
- Injunction to restrain an overseas arbitration.
- Injunctions to restrain excesses of jurisdiction by a foreign court.
- Anti-anti-suit injunctions.
- Interim anti-suit injunctions.
- Developments in France and Germany.
- (6) Judicial hindrance of foreign judgments: contradictory actions
- 5 Foreign Judgments
- A Introduction
- B The Law
- (1) The effect of foreign judgments as a matter of common law: the principle
- (2) Recognition as res judicata at common law: connection to the foreign court
- (a) Personal connection of the losing party to the foreign court
- (b) Personal presence of defendant at the commencement of proceedings
- (c) Agreement ante litem to accept jurisdiction of the court: choice of court agreement
- (d) Agreement to accept jurisdiction of the court after institution of proceedings: agreement by conduct
- (i) Judgments given against the claimant
- (ii) Voluntary appearance to writ by defendant and agreement to the jurisdiction
- (iii) Appearance for the purpose of contesting to jurisdiction
- (iv) Pragmatism: Section 33, submission, agreement, estoppel, and consent
- (v) Submission to jurisdiction of a supervising court
- (e) No other foundation for obligation to abide by a foreign judgment
- (3) Recognition as res judicata at common law: objections to recognition of the judgment
- (a) Objections based on the nature of the judgment or the court
- (b) Objections which do vitiate the obligation to abide by the judgment
- (i) No obligation to abide by judgment contrary to English public policy
- (ii) No obligation to abide by judgment resulting from unfair trial
- (iii) Recognition of judgment barred by European Convention on Human Rights
- (iv) No obligation to abide by judgment obtained by suing in breach of contract
- (v) No obligation to abide by foreign judgment obtained by fraud
- (c) Objections which do not vitiate the obligation to abide by the judgment
- (4) Enforcement at common law: suing for the debt created by the judgment
- (5) Recognition at common law for purposes other than enforcement
- (6) Other common law issues: judgments in rem; reform of the common law
- (7) Judgments registrable for enforcement under the 1920 Act
- (8) Judgments registrable for enforcement under the 1933 Act
- (9) Judgments registrable under the 1982 Act: UK judgments
- (10) Judgments registrable under the 1982 Act: Hague judgments
- (11) Judgments taking effect under Part 6 of SI 2019/479 (Brussels I Regulation and Lugano Convention)
- (12) Judgments taking effect according to particular international conventions
- 6 Contractual Obligations
- A Introduction
- (1) Terminology and the Rome I Regulation
- (2) The relationship between the Regulation and the law applied to cases outside it
- (3) The conflicts rules prior to the Rome Convention and Rome Regulation
- (4) The ‘proper law’ of the contract
- (5) The nature of a term choosing the proper law as severable from the contract
- (6) The Rome Convention
- (7) The Rome I Regulation in outline
- (8) Governing law where or when the Rome I Regulation does not apply
- B The Law
- (1) Applicability of the Rome I Regulation: civil and commercial matters
- (2) Applicability of the Regulation: temporal scope and relationship with earlier versions
- (3) Applicability of the Regulation: contractual obligations
- (a) The meaning of ‘contractual’
- (b) Cross-reference to the revoked Brussels I Regulation
- (c) ‘Contractual’ obligations: the boundary between contract and non-contract
- (d) Contractual obligations affecting non-parties
- (e) Voluntary assumption of liability to another without contract
- (f) Concurrent obligations
- (g) Identification or ascertainability of the counterparty
- (h) Contractual ‘obligations’: the boundary between contract and property
- (4) Applicability of Regulation: matters expressly excluded from the Regulation
- (5) The meaning of ‘law’ and its application in the Rome I Regulation
- (6) Governing law chosen by the parties: Article 3
- (7) Governing law when not chosen by the parties: general rule
- (a) Habitual residence: Article 19
- (b) General approach to governing law in the absence of choice by the parties: Article 4
- (c) Connection to a country in the absence of choice
- (d) Governing law indicated by list of typical contracts
- (e) Governing law where the Article 4(1) list does not indicate a law
- (f) Escape from the indicated law—manifestly closer connection to another country
- (g) Governing law where neither list nor characteristic performance indicates a law
- (8) Governing law for specific contractual obligations: the four leges speciales
- (a) Governing law for contracts of carriage: Article 5
- (b) Governing law for consumer contracts: Article 6
- (i) Article 6(1) contracts: the contracts covered by the special rule in Article 6(1)
- (ii) Article 6(1) contracts: the consumer
- (iii) Article 6(1) contracts: the professional
- (iv) Article 6(1) contracts: excluded contracts
- (v) Article 6(1) contracts: the governing law
- (vi) Contracts which are not within Article 6(1)
- (c) Governing law for contracts of insurance: Article 7
- (d) Governing law for individual contracts of employment: Article 8
- (9) The issues to which the governing law is applied
- (10) Law applicable to disputes concerning formation
- (11) Other issues associated with the contractual obligation
- (12) Displacement of the applicable law
- (a) Provisions of law from the law of country with which the contract is otherwise wholly connected
- (b) Provisions of retained European law when the contract is wholly connected to the United Kingdom and all the Member States:
- (c) Provisions of the ‘otherwise applicable’ law which protect the weaker party
- (d) Overriding mandatory provisions of the lex fori
- (e) Overriding mandatory provisions of the law of the country of performance
- (f) Public policy of the forum
- (13) Law applicable to issues disclaimed by the Rome I Regulation
- (a) Issues falling outside the temporal scope of the Rome I Regulation
- (b) Contractual obligation but not in civil or commercial matters
- (c) Civil or commercial matters falling outside the scope of ‘contractual obligations’
- (i) Status and capacity of natural persons
- (ii) Contractual obligations arising out of family relationships
- (iii) Contractual obligations arising out of matrimonial property regimes, or out of wills and succession
- (iv) Contractual obligations arising under bills of exchange, promissory notes, and negotiable instruments
- (v) Agreements on arbitration and choice of court
- (vi) Questions governed by the law of companies and their internal relationships
- (vii) Whether an agent is able to bind a principal in relation to a third party
- (viii) Whether an organ is able to bind a company or other body, corporate or unincorporated, in relation to a third party
- (ix) The constitution of and internal relationships of trusts
- (x) Obligations arising out of dealings prior to the conclusion of a contract
- (xi) Issues of evidence and procedure
- (14) Law applicable to contracts to which the Rome I Regulation does not apply
- (a) Contracts made after 1 April 1991: Rome Convention
- (i) The scope and effect of the Rome Convention
- (ii) Choice of governing law by the parties: the general rule
- (iii) Governing law in the absence of choice by the parties: the general rule.
- (iv) Particular choice of law rules for specific contractual obligations
- (v) Disputes as to the formation or existence of a contractual obligation
- (vi) The issues to which the governing law is applied
- (vii) Displacement of the applicable law identified by the Rome Convention
- (b) Contracts not in civil or commercial matters, and contracts concluded before 2 April 1991: the common law rules of private international law
- (i) Ascertainment of the proper law
- (ii) Actual intention as to proper law
- (iii) Inferred or implied intention as to proper law
- (iv) Proper law as the law having the closest and most real connection
- (v) Floating choice of law
- (vi) Disputes as to existence of contract
- (vii) Application of the proper law
- (viii) Illegality
- (ix) Capacity
- (x) Performance and breach
- (a) Contracts made after 1 April 1991: Rome Convention
- A Introduction
- 7 Non-Contractual Obligations
- A Introduction
- B The Law
- (1) Applicability of the Rome II Regulation: civil and commercial matters
- (2) Applicability of the Regulation: temporal scope
- (3) Applicability of the Regulation: non-contractual obligations
- (4) Applicability of the Regulation: matters excluded by the Regulation from itself
- (5) The meaning of ‘law’ for the purpose of the Regulation
- (6) Applicable law: general rule for torts if law not chosen by the parties
- (7) Applicable law: leges speciales for torts in specific contexts
- (8) Applicable law: non-contractual obligations that are not torts
- (9) Applicable law: chosen by the parties
- (a) Choosing the applicable law
- (b) Choice of place for resolution of disputes
- (c) Further limitations on agreement on applicable law
- (d) Form of agreement
- (e) Non-contractual obligations for which the law may not be chosen
- (f) De facto choice of the law of the forum
- (g) Choice of law to govern obligations arising from pre-contractual relations
- (h) Deducing a choice of law for non-contractual obligations from the lex contractus
- (10) Issues to which the applicable law will apply
- (11) Issues connected to the non-contractual obligation but not part of it
- (12) Displacement of the applicable law within the Regulation scheme
- (13) Applicable law for issues excluded by the Rome II Regulation
- (a) Issues naturally falling outside the scope of the Rome II Regulation
- (b) Issues excluded from the Regulation by specific mention
- (i) Non-contractual obligations arising out of family relationships
- (ii) Non-contractual obligations arising out of matrimonial property regimes, or out of wills and succession
- (iii) Non-contractual obligations arising under bills of exchange, promissory notes, and negotiable instruments
- (iv) Non-contractual obligations arising out of the law of companies and their internal relationships
- (v) Non-contractual obligations arising out of the relationships internal to a trust
- (vi) Non-contractual obligations arising out of nuclear damage
- (vii) Non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation
- (viii) Issues of evidence and procedure
- (14) Non-contractual obligations when the Rome II Regulation is not applicable
- (a) Tort committed in England before 1 May 1996
- (b) Tort committed outside England before 1 May 1996
- (c) Tort, except defamation, committed (anywhere) after 30 April 1996
- (d) Tort in the nature of defamation committed before 1 January 2014
- (e) Tort in the nature of defamation committed after 31 December 2013
- (f) Unjust enrichment
- 8 Property
- A Introduction
- B The Law
- (1) The nature and divisions of property; the situs of property
- (2) Immovable property
- (3) Tangible movable property
- (4) Intangible property
- (5) Intellectual property and ordinary dealings with intellectual property
- (6) Confiscation or compulsory diversion of property
- (a) Seizure of property within the territory of the state
- (b) The confiscation of property lying outside the territory of the state
- (c) Benevolent seizure
- (d) The seizure of intangibles
- (e) The compulsory discharge of debts by ordering payment to a third party
- (f) The acquisition of assets by appointing a receiver to collect them
- (7) Trusts of property
- (8) Marriage and its effect on property rights
- (a) Property rights after marriage with an express matrimonial property contract
- (b) Property rights after marriage without an express matrimonial property contract
- (c) The alteration of the law which governs the rights of the parties
- (d) The effect of the matrimonial property regime on death or dissolution of marriage
- (9) Dissolution of marriage and its effect on property rights
- (10) Death and its effect on property rights
- 9 Corporations
- A Introduction
- B The Law
- (1) The importance of the lex incorporationis
- (2) Creation and recognition of companies, corporations, and other legal persons
- (3) Looking through or beyond separate corporate personality
- (4) Jurisdiction over, and foreign judgments against, companies and corporations
- (5) Contractual and non-contractual obligations assumed by companies
- (6) Dissolution of corporations
- (7) Amalgamation, succession, and secession of corporations
- (8) Other bodies: partnerships of various kinds
- (9) Companies in financial difficulty: procedures prior to insolvency
- (10) Corporate insolvency
- (a) Jurisdiction based on retained EU Insolvency Regulation
- (b) Jurisdiction based on the provisions of the Insolvency Act 1986
- (c) Law applicable to the issues arising in the winding-up
- (d) Relevance of proceedings before a foreign court: co-ordination and co-operation
- (i) The effect of revoking the Insolvency Regulation
- (ii) UNCITRAL Model Law
- Application of the Model Law.
- Right of access of foreign representatives and creditors to proceedings in English courts.
- Recognition of a foreign insolvency proceeding.
- Effect on English proceedings of recognition of foreign proceedings.
- Other forms of co-operation with foreign courts and foreign representatives.
- English insolvency proceedings commenced after recognition of a foreign main proceeding.
- Asymmetric application.
- (iii) Assistance to foreign insolvencies: statutory powers
- (iv) Assistance using common law powers
- (e) Effect of foreign winding-up order
- 10 Adults
- A Introduction
- B The Law
- (1) Personal status and the law of the domicile
- (2) The validity of marriage
- (a) Structure of the validity of marriage
- (b) Characterization of issues and formulation of the question
- (c) Formal validity of marriage
- (d) Capacity of persons to marry each other
- (i) Dual domicile rule
- (ii) Law of the intended matrimonial home?
- (iii) Issues regarded as matters of capacity
- (iv) The role of the law of the place of celebration
- (v) The (additional) need for capacity under the lex loci
- (vi) Lack of capacity under foreign law; marriages in England
- (vii) Lack of capacity; marriages outside England
- (e) Other issues relating to the essential validity of marriage
- (3) Jurisdiction and applicable law for matrimonial causes
- (4) Financial provision ancillary to divorce or annulment
- (5) The effect in England of matrimonial decrees obtained overseas
- (a) Divorces and annulments obtained in the British Islands
- (b) Overseas divorces and annulments
- (i) Divorce obtained in a single country
- (ii) Divorces obtained by proceedings or not by proceedings
- (iii) Decree obtained by proceedings: recognition
- (iv) Decree obtained by proceedings: refusal of recognition
- (v) Divorce or annulment obtained without proceedings: recognition
- (vi) Divorce or annulment obtained without proceedings: refusal of recognition
- (6) Conflict of laws between marriage and divorce or annulment
- (7) Financial provision after overseas divorce or annulment
- (8) Maintenance
- (9) Personal capacity and incapacity
- (10) Personal bankruptcy
- 11 Children
- (1) The habitual residence of a child
- (2) Jurisdiction to make orders in respect of a child: Family Law Act 1986
- (3) Jurisdiction to make Section 8 orders: the 1996 Hague Convention
- (4) Jurisdiction to make Section 8 orders where the 1996 Hague Convention does not apply
- (5) Jurisdiction to make orders other than Section 8 orders in respect of a child
- (6) Effect of orders made by foreign courts
- (7) Abduction, retention, and summary return of children: the 1980 Hague Convention
- (8) Maintenance and child support: the 2007 Hague Convention
- (9) The relevance of the Brussels II Regulation and the Maintenance Regulation
- (10) Adoption, parentage, and surrogacy
- 12 Arbitration
- A Introduction
- B The Law
- (1) The general structure of the Arbitration Act 1996
- (2) The validity and scope of agreements to arbitrate
- (3) Enforcing the agreement to arbitrate: proceedings before the English court
- (4) Enforcing the agreement to arbitrate: proceedings before foreign court
- (5) The law applied by the tribunal to determine the substance of the dispute
- (6) The arbitral proceedings and the auxiliary participation of English courts
- (7) Enforcing arbitral awards in England: general
- (8) Enforcing foreign arbitral awards
- (9) Foreign judgments concerning arbitration and arbitral awards
- (10) International commercial mediation
- 1 Introduction
- Further Material