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Part VI The Law of Property, 35 Administration of Estates »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter examines the legal regime governing the administration of estates. It begins with an overview of the difference between common law and civil law jurisdictions with respect to administration of estates, followed by a discussion of the Hague Convention on Administration of Estates and the EU Succession Regulation. It then considers the jurisdiction of the English courts regarding grants of administration, the rules governing separate wills, the situs of assets, persons to whom grant will be made, consular grant, and title of administrator under an English grant. It also analyses the choice of law governing the administration of estates and the status of administrators appointed by foreign courts before concluding with an assessment of foreign grants, Commonwealth grants, and grants of administration in Scotland and Northern Ireland.

Part VI The Law of Property, 32 The Assignment of Intangible Movables »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter examines the choice of law rules governing the assignment of intangible movables. Intangible movables may be divided into rights of action and rights which are represented by some document or writing that is not only capable of delivery but in the modern commercial world is negotiated as a separate physical entity. A debt, arising from a loan or from an ordinary commercial contract, is an example of the first category. Negotiable instruments and shares are examples of the second category. This chapter first considers debts, and more specifically the situs of a debt, the various theories on the law applicable to assignments of debts, and the modern law governing the assignment of a debt. It then discusses negotiable instruments as well as shares and securities, comparing the traditional approach and the modern system for the holding and transfer of shares and securities.

Bibliography »

From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans

Cheshire, North & Fawcett: Private International Law »

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Part V Family Law, 25 Children »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter examines private international law rules that govern orders concerning children, including orders determining with whom a child shall live or with whom he may have contact. It first considers the rules governing the jurisdiction of the English courts as regards parental responsibility matters, the choice of law rules applied, and the different provisions for the recognition and enforcement of parental responsibility and related orders made elsewhere. In particular, it discusses orders granted in another European Union Member State, except Denmark; orders granted in another Contracting State to the 1996 Hague Protection Convention; and orders granted in Scotland and Northern Ireland. It also analyses the relevant provisions of the Child Abduction and Custody Act 1985 and common law rules before concluding with an overview of other important developments including the 1996 Hague Convention and the Council of Europe Convention on Contact concerning Children.

Part B The Applicable Law, Preliminary Remarks, 17 Choice of law and the internet »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
17.01 The real clash takes place between the global or ubiquitous nature of the internet and the territorial approach that is the founding principle of the intellectual property universe. The internet is by definition borderless, which means that it crosses all national borders, and the intellectual property system would dearly like to put these borders back in relation to any content carried on the internet. We have seen in Chapter 9 that this creates havoc in relation to jurisdiction. Which court will have jurisdiction in those cases that are at least...

Part B The Applicable Law, Preliminary Remarks, 12 Choice of law elements in the intellectual property conventions »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
12.01 Intellectual property rights have been regulated internationally by many Conventions. These Conventions are the obvious places to start the search for choice of law rules. They might contain a harmonized uniform set of rules for the protection of intellectual property rights. It will soon become clear that such a system, that removes the need for choice of law rules, never was a realistic goal for the draftsmen of these Conventions, but maybe the Conventions contain choice of law rules or elements that may facilitate the choice of such rules. When the...

Part B The Applicable Law, Preliminary Remarks, 18 Choice of law reform »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
18.01 In the previous chapter the specific aspects of the internet were addressed in detail. Whilst some of these aspects clearly still need to be addressed by the legislature and the courts, we will not duplicate what was said there in this chapter on reform. Instead we will focus specifically on the absence of a choice made by the parties in contracts in relation to intellectual property, ubiquitous and multi-State cases in relation to infringement (tort), issues of contributory liability, and the radically new topic of security interests in intellectual...

Part II Preliminary Topics, 3 Classification »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter discusses the classification of the cause of action and the classification of a rule of law as they relate to private international law. Classification of the cause of action refers to the allocation of the question raised by the factual situation before the court to its correct legal category, whereas classification of a rule of law is the identification of the department of law under which a particular legal rule falls. After explaining what ‘classification of the cause of action’ and ‘classification of a rule of law’ mean, the chapter considers the basis on which classification is made. In particular, it looks at two cases that illustrate the international spirit in which English judges fulfil the task of classification. It also examines the classification of an English rule and classification of a foreign rule (parental consent to marry, bona vacantia).

Part III Jurisdiction, Foreign Judgments and Awards, 12 The Competence of the English Courts Under—The Traditional Rules »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter explores the competence of the English courts under the traditional rules, and more specifically actions in personam and actions in rem. An action in personam is designed to settle the rights of the parties as between themselves, e.g. an action for damages for breach of contract. In English law the only action in rem is that which lies in an Admiralty court against a particular res, namely a ship or some other res, such as cargo, associated with the ship. This chapter first considers three situations in which English courts are competent under common law rules to try an action in personam before discussing the effect of the Brussels/Lugano system on actions in rem. It also reflects on the implications of the Hague Convention on Choice of Court Agreements 2005 for the competence of the English courts.

Part A Jurisdiction, Preliminary remarks, 9 Complementary torts and other causes of action: Jurisdiction »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
9.01 There are a wide variety of causes of action under English and foreign law which are complementary to the tort of infringement.1 In this chapter, we will be examining these other causes of action: ie passing-off, malicious falsehood, defamation, unfair competition, wider Continental protection in delict, breach of competition rules, and breach of confidence. Most of these causes of action are tortious. Passing-off, which is often used in combination with a trade mark infringement action, is the most obvious example to start with. In many continental legal...

Part B The Applicable Law, Preliminary Remarks, 16 Complementary torts and other causes of action: The applicable law »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
16.01 It has already been seen, in the context of jurisdiction, that English substantive law provides a number of different causes of action which are complementary to infringement. These include the torts of passing-off, malicious falsehood, defamation, and causes of action which are more difficult to classify, namely actions for breach of competition rules and breach of confidence. Some other countries provide wider protection, with causes of action in unfair competition, delict, or anti-trust. These differences in the substantive law, inevitably, raise...

Contents »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

Contents »

From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans

Part IV The Law of Obligations, 19 Contracts »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter examines the applicable law for contracts. Domestic contract law consists of two very different sorts of rules: the traditional rules and the more modern rules. The concept of mandatory rules only deals with the second class of rules. This chapter first considers the nature of the problem of ascertaining the applicable law with respect to contracts and a number of different solutions that have been tried in different countries to address it. It then discusses the history and purpose of the Rome Convention, as well as its relevant provisions and those of the Contracts (Applicable Law) Act 1990. It also analyses the Rome I Regulation, the circumstances under which it applies, and how it deals with special contracts. Finally, it looks at the Rome I Regulation's relationship with other provisions of EU law and international conventions.

Part A Jurisdiction, Preliminary remarks, 3 Contracts in relation to the exploitation of intellectual property rights: Jurisdiction »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
3.01 There are two types of contract in relation to intellectual property. Our analysis is only concerned with contracts for the exploitation of intellectual property rights. It is not concerned with contracts where the intellectual property right is not the central element. For example, this chapter will not deal with the issues arising from a contract between the inventor and a patent agent in which the latter is instructed to file an application for a patent.1 3.02 The owner of an intellectual property right is, obviously, free to exploit the right himself. In...

Part B The Applicable Law, Preliminary Remarks, 14 Contracts in relation to the exploitation of intellectual property rights: The applicable law »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
14.01 In this chapter, we are concerned with contracts in relation to the exploitation of intellectual property rights. These contracts take various forms,1 such as, for example, licences and assignments, on the one hand, and more complex forms, such as distribution contracts and transfer of technology agreements, that involve more than a simple transfer of intellectual property rights, on the other hand. We do not propose, however, to deal separately with each of these types of contract, as they all have in common the fact that they involve a transfer of certain...

Part VI The Law of Property, 33 Corporations »

Paul Torremans
From: Cheshire, North & Fawcett: Private International Law (15th Edition)
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett
This chapter examines the legal system governing corporations in relation to private international law. It begins with a discussion of the domicile of a corporation, which is sometimes used as a connecting factor for corporations in private international law, even if the concept of domicile applies primarily to natural persons. An example of a statute that uses the concept of domicile for corporations is the Income and Corporation Taxes Act 1988. Whereas every natural person gets a domicile of origin upon birth, a corporation's domicile is linked to its incorporation. A corporation is therefore domiciled in the country under whose law it was incorporated. The chapter also considers jurisdictional issues relating to a corporation's residence, status and capacity, internal management, and winding up.

Part A Jurisdiction, Preliminary remarks, 1 Creation and validity of intellectual property rights: jurisdiction »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
1.01 The creation of certain intellectual property rights requires the successful completion of a registration procedure, whilst the creation of other intellectual property rights does not. Once a right is supposedly created, the issue of its validity arises. Were all the criteria met or should the right never have been granted? The creation issue is also closely linked to the scope of the intellectual property right, because the content of the right is determined by the outcome of the creation process. 1.02 After a brief introduction to the relevant substantive...

Part B The Applicable Law, Preliminary Remarks, 13 Creation, scope, and termination of intellectual property rights: The applicable law »

James J. Fawcett FBA, Paul Torremans
From: Intellectual Property and Private International Law (2nd Edition)
James J. Fawcett, Paul Torremans
13.01 The international intellectual property Conventions are mainly and almost exclusively concerned with the creation of the various intellectual property rights, the scope and content of these rights, and their termination. We will now have to consider what effect the private international law related provisions of these Conventions, which we analysed in the previous chapter, have in this area. It needs to be emphasized once more, though, that the choice of law rules in the Conventions are not comprehensive.1 As was outlined in the previous chapter, they do not...