Choice of Law and the Doctrine of Renvoi
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Application of the Theory of Dépeçage to Upstream Oil and Gas Contracts
University of Calgary PRISM: University of Calgary's Digital Repository Graduate Studies The Vault: Electronic Theses and Dissertations 2018-03-29 Application of the Theory of Dépeçage to Upstream Oil and Gas Contracts Karimi, Sahar Karimi, S. (2018). Application of the Theory of Dépeçage to Upstream Oil and Gas Contracts (Unpublished master's thesis). University of Calgary, Calgary. AB. doi:10.11575/PRISM/31771 http://hdl.handle.net/1880/106483 master thesis University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca UNIVERSITY OF CALGARY Application of the Theory of Dépeçage to Upstream Oil and Gas Contracts by Sahar Karimi A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW CALGARY, ALBERTA MARCH, 2018 © Sahar Karimi 2018 Abstract Determination of the applicable law in upstream oil and gas contracts plays an important role with regards to the parties’ rights and liabilities. There are various approaches regarding the choice of applicable law and different theories have been expressed relating to choice-of-law provisions. This research explores one of these theories called Dépeçage in private international law and conflict of law. The theory of Dépeçage is a concept in private international law that refers to the process of cutting a case into individual issues whereby each issue is constrained to a different applicable choice-of-law analysis. -
Conflict Rule and Characterization of Question
Conflict Rule and Characterization of Question JOHN D . FALCONBRIDGE Toronto Further discussion of the problem of characterization may use- fully be coupled with a statement of the analysis adopted by Raape. It being premised that in his view the subject of a conflict rule is a group of legal rules, he emphasizes, as already mention- ed,6} the distinction between delimitation (Abgrenzung) and quali- fication (classification), and says that the latter problem (Ein- reihungsproblem, problème du classement) involves, or is divisible into, three questions, 55 namely, (1) What is the nature of the rules of law specified in a conflict rule? (2) What is the nature of the given (concrete) rule of law? and (3) Is the latter of the same nature as the former? The first is merely a question of the inter- pretation of the conflict rule and is answered in accordance with the lex fori, that is, the law of which the conflict rule forms a part." The second question relates to the juridical nature of the foreign rule of law, its meaning and purpose, and is to be answered by the law of which it is a part. In other words the foreign law qualifies or characterizes its own rule.51 The third question is one of classi- fication (Einreihung), that is, the question is whether the foreign rule, as characterized by the foreign law, is subsumed under the rules of law specified in the conflict rule of the forum, and is to be answered by the lex fori. My own theory of characterization, although expressed in different terms is, it is respectfully submitted, substantially similar in effect to Raape's theory. -
LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen*
FORBIDDING DÉPEÇAGE: LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen* 1. INTRODUCTION The law governing international arbitration has been a field of considerable conceptual controversy. The debate goes back to the 1960's and 1970's, when distinguished scholars such as F .A. Mann, Berthold Goldman, Philippe Fouchard and others argued whether international arbitration should be considered an autonomous system of law, a new lex mercatoria, or whether it ultimately remained subject to the applicable local legal sys- tem. i As is well known, the former view was shared by many * Partner, LALIVE, Geneva. 1 would like to thank David Bonifacio of LALIVE for effective and efficient research assistance. 1. For an overview of this discussion see, e.g., Berthold Goldman, Les conflits de lois dans l'arbitrage international de droit privé, 109 bk. II RECUEIL DES COÙRS 347 (1964) (hereinafter Goldman, Les conflits de lois); Berthold Goldman, Frontières du droit et lex mercatoria, 9 ARCHIVES DE PHILOSOPHIE DU DROIT 177 (1964) (hereinaf- ter Goldman, Frontières du droit et lex mercatoria); PHILIPPE FOUCHARD, L'ARBITRAGE COMMERCIAL INTERNATIONAL 351-457 (1965); F.A. Mann, Lex Facit Arbitrum, in INTERNATIONAL ARBITRATION LIBER AMICORUM FOR MARTIN DOMKE 157 (Pieter Sanders ed., 1967); Pierre Lalive, Problèmes rélatifs à l'arbitrage interna- tional commercial, 120 bk. 1 RECUEIL DES COURS 569, 597-663 (1968); Pieter Sanders, Trends in the Field of International Commercial Arbitration, 145 bk. II RECUEIL DES COURS 205, 238-65 (1976); Pierre Lalive, Les règles de conflit de lois appliquées au fond du litige par l'arbitre international siègeant en Suisse, 145 RECUEIL DES COURS 2 (1976) (hereinafter Lalive, Les règles de conflit de lois appliquées); Harold J. -
109 . IMMOVABLES It the CONFLICT of LAWS 4. the DOCTRINE
109 . IMMOVABLES It THE CONFLICT OF LAWS 4. THE DOCTRINE OF THE RENVOI At this point,,before the discussion passes from the topic of succession on death to that of transfer inter vivos, it seems appropriate to mention the doctrine of the renvoi, which has been invoked most frequently, though not exclusively, in Con- nection with succession. The problem arises from the fact that in a given situation connected with two or. more countries, the laws of those countries may be different not only as regards their. domestic rules,; but 'Also -as regards their conflict rules. If a. court in X, in accordance with a conflict rule' -of the forum, has selected the law of some other country, Y, as . the proper law with regard to a particular juridical question arising from the factual situation, and arrives at the stage of applying the law of Y,2 the court might do any one of three things. Firstly, it might reject or ignore the doctrine of the renvoi and apply simply the domestic rulee3 of the law of Y, without regard to the conflict rules of that law, that is, without regard to any possible reference back (renvoi) from the law of Y to the law of X or forward to the law of a third country, .Z. Secondly, it might adopt a theory of partial renvoi, that is, it might apply the conflict rules of the law, of Y to the extent of accepting a reference back from .the law of Y, and consequently apply the domestic rules of the law of X, without considering what, if any, theory of the renvoi prevails in the law of Y. -
Drafting National Legislation on Conflict of Laws: the Swiss Experience
DRAFTING NATIONAL LEGISLATION ON CONFLICT OF LAWS: THE SWISS EXPERIENCE FRANK VISCHER* I WHY A CODIFICATION OF CONFLICT OF LAWS IN SWITZERLAND? Debate continues whether conflict of laws is a suitable subject for legisla- tion. To codify conflict of laws in comprehensive legislation in the late 20th century may even be regarded as an anachronistic undertaking. David Cavers' preoccupation has been how the pursuit of justice in the individual case and ease and certainty can be combined in prefixed rules.' His careful investigation of old and new experiments with codification, focusing specifically on that point, convinced him that "the persistent reluctance of American conflicts scholars to advocate legislative solutions" was justified. 2 It therefore requires some explanation why the Swiss Government, follow- ing examples in neighboring States, entrusted to a commission the task of presenting to the Parliament draft legislation covering the whole field of con- flict of laws. Although I never hid my skepticism whether for all fields of law a legislative solution is superior to a judicial approach,3 I had the honor of being nominated chairman of this Commission, consisting of all conflicts specialists in Switzerland. But since undertaking this task, and with the de- velopment of the draft which will be published early in 1978, I became more and more convinced of the merits of such a joint effort requiring concentra- tion on each problem until a suitable solution was found. I became aware how much more difficult the task of the legislator is in comparison with that of the scholar reviewing the work afterwards. International issues have increased greatly in the last decades. -
Result-Selectivism in Conflicts Law* Symeon C. Symeonides
WLR46-1_FINAL_SYMEONIDES FIX 12/16/2009 9:38 AM RESULT-SELECTIVISM IN CONFLICTS LAW* SYMEON C. SYMEONIDES** I. INTRODUCTION A. The Classical View: “Conflicts Justice” The classical, traditional view of the law of conflict of laws, going at least as far back as Savigny and Story,1 is grounded on the basic premise that the function of conflicts law is to ensure that each multistate legal dispute is resolved according to the law of the state that has the closest or otherwise most ―appropriate‖ relationship with that dispute. Opinions on defining and especially measuring the ―propriety‖ of such a relationship have differed over the years from one legal system to another and from one subject to the next. Despite such differences, however, all versions of the classical school have remained preoccupied with choosing the proper state to supply the applicable law, rather than directly searching for the proper law, much less the proper result. Indeed, the implicit—if not explicit—assumption of the classical school is that, in the great majority of cases, the law of the proper state is the proper law. But in this context, propriety is defined not in * Copyright 2009 by Symeon C. Symeonides. ** Dean and Alex L. Parks Distinguished Professor of Law, Willamette University College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.) Univ. of Thessaloniki; LL.M., S.J.D. Harvard University. 1. See 8 FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS (1849), translated in WILLIAM GUTHRIE, PRIVATE INTERNATIONAL LAW, A TREATISE ON THE CONFLICT OF LAWS AND THE LIMITS OF THEIR OPERATION IN RESPECT OF PLACE AND TIME (1st ed. -
Stare Decisis
1974] A PROPER LAW OF TORTS 101 A. PROPER LAW OF TORTS IN THE CONFLICT OF LAWS* PETER J. M. LOWN** The subfect examined by this thesis is the conflicts rules which should be applied to determine liability in tort actions, and the question of whether or not a "proper law" approach could be adopted in this particular area. It is submitted, in Section I, that changing circumstances and changing theoretical bases for conflict of laws, are reasons for a fresh look at the area of torts in the conflict of laws. Moreover it is submitted, in Section II, that such a fresh look should be firmly based on funda mental policies of conflict of laws generally, such as the absence of forum-shopping, the convenience of the parties and the achieving of a uniform result whatever the forum of a particular action, The existing rules are examined in the light of their application to the varying circumstances which can arise in tort actions. In addition a critical examination of the existing rules is attempted, in respect of the require ments of identifying the locus delicti, and whether the existing rules relate to choice of law or furisdictional questions. The "prorer law" concept is suggested as a solution to the problems arising from this critica examination, and is buttressed by the operation and use of such a concept in other areas of the law, such as contracts and recognition of foreign divorce decrees. Since the "proper law" approach has been adopted in the United States, it is necessary to examine the experience in those jurisdictions. -
The Dimensions of Public Policy in Private International Law
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UCL Discovery The Dimensions of Public Policy in Private International Law Alex Mills* Accepted version: Published in (2008) 4 Journal of Private International Law 201 1 The problem of public policy in private international law National courts always retain the power to refuse to apply a foreign law or recognise or enforce a foreign judgment on the grounds of inconsistency with public policy. The law which would ordinarily be applicable under choice of law rules may, for example, be denied application where it is “manifestly incompatible with the public policy (‘ordre public’) of the forum”1, and a foreign judgment may be refused recognition on the grounds that, for example, “such recognition is manifestly contrary to public policy in the [state] in which recognition is sought”2. The existence of such a discretion is recognised in common law rules, embodied in statutory codifications of private international law3, including those operating between European states otherwise bound by principles of mutual trust, and is a standard feature of international conventions on private international law4. It has even been suggested that it is a general principle of law which can thus be implied in private international law treaties which are silent on the issue5. The public policy exception is not only ubiquitous6, but also a fundamentally important element of modern private international law. As a ‘safety net’ to choice of law rules and rules governing the recognition and enforcement of foreign judgments, it is a doctrine which crucially defines the outer limits of the ‘tolerance of difference’ implicit in those rules7. -
In Polish: “Prawo Prywatne Mi Ędzynarodowe” ) Is a Legal Discipline Defined by Polish Scholars Either in a Narrow Or a Wider Sense
Mateusz Pilich, Ph.D. CONCISE INTRODUCTION TO POLISH PRIVATE INTERNATIONAL LAW Private international law (in Polish: “prawo prywatne mi ędzynarodowe” ) is a legal discipline defined by Polish scholars either in a narrow or a wider sense. I. Narrowly defined (definition by method) The branch of law responsible for designating the law applicable to certain relationships, cases and situations with a private law dimension (e.g. marriages, contracts, torts/delicts, adoptions and successions) not confined to the competence of just one State (otherwise called ‘international’ or ‘cross-border’ private-law situations). Its only function is designating the law, so it brings, theoretically, no substantive decisions with it, merely pointing at the competent law to remove any potential conflict, whether positive or negative (German: Verweisungsrecht, Kollisionsrecht; English: the law of conflict of laws, conflicts law ); it contains only indirect rules of law ( conflicts rules ). In Poland, the latter are codified (see below). II. Widerly defined (definition by function) The branch of law responsible for regulating any ‘international’ or cross-border private law relationships, whatever the method applied. It contains both the rules of the PIL in the narrow sense (conflicts rules) and the provisions of civil and commercial law (substantive law rules) specifically governing cross-border situations, e.g. contracts for the international sale and transport of goods; international cheques, bills of exchange and promissory notes; and international successions. The latter are usually generated by international legislation such as, for instance, the UN Convention on Contracts for the International Sale of Goods, signed in Vienna on 30 April 1980 (abbreviated as: CISG ); however, local law rules of this type can also exist ( law of aliens). -
THE CHINESE PRACTICE of PRIVATE INTERNATIONAL LAW the Chinese Practice of Private International Law QINGJIANG KONG* and HU MINFEI†
THE CHINESE PRACTICE OF PRIVATE INTERNATIONAL LAW The Chinese Practice of Private International Law QINGJIANG KONG* AND HU MINFEI† CONTENTS I Introduction II Jurisdiction A General Rule of Territorial Jurisdiction B Exceptions to the General Rule of Territorial Jurisdiction 1 Exclusive Jurisdiction 2 Jurisdiction of the People’s Court of the Place in Which the Plaintiff is Domiciled 3 Jurisdiction over Actions Concerning Contractual Disputes or Other Disputes over Property Rights and Interests 4 Jurisdiction over Actions in Tort C Choice of Forum 1 Recognition of Jurisdictional Agreement 2 Construed Jurisdiction D Lis Alibi Pendens E Effect of an Arbitration Agreement on the Jurisdiction of People’s Courts 1 Independence of Arbitration Clause 2 Approach of People’s Courts to Disputes Covered by Arbitration Agreements III Choice of Law A Choice of Law in General 1 Characterisation 2 Renvoi 3 Proof of Foreign Law 4 The Time Factor in Applying Laws 5 Cases Where There is No Provision in Applicable Chinese Law B Contracts 1 Choice of Law for Contracts 2 Applicable Law for Contracts in Cases Where No Law Has Been Chosen C Torts Involving Foreign Elements D Marriage, Family and Succession 1 Marriage 2 Husband-Wife Relationships, Guardianship and Maintenance Relationships 3 Application of Law Concerning Succession IV Recognition and Enforcement of Foreign Judgments and Awards A Recognition and Enforcement of Foreign Judgments B Recognition and Enforcement of Foreign Arbitral Awards * BSc (Nanjing), LLM (East China Institute of Politics and Law), PhD (Wuhan); Associate Professor, Law Faculty, Hangzhou Institute of Commerce. † LLB, LLM (Northwest Institute of Politics and Law); Lecturer, Law Faculty, Hangzhou Institute of Commerce. -
Choice of Law in Complex Litigation
CHOICE OF LAW IN COMPLEX LITIGATION LARRY KRAMER* Nearly all proceduralistsagree that all the claims in a complex case should be de. cided under a single substantive law or, at the very least, under a uniform choice-of- law rule In this paper, ProfessorKramer challenges the assumptions at the foun- dation of that consensus. In so doing, he confronts two myths of late-twentieth century procedure: that the sort of proceduralmaneuvers used to circumvent un- ambiguous Supreme Court precedents precluding federal courts from creating choice-of-law rules are legitimate;and that the unusualnature of complex litigation justifies such measures. ProfessorKramer exposes the fallacies underlying the first premisse then presents historicaland normative arguments against the second. He questions both the principle that the parties in complex litigationare similarly situ- ated with respect to the applicable law and the notion that adjudicatingsuch litiga- don under more than one law is unmanageable. Consensus is increasingly rare in today's legal world. Our profes- sion has grown so big and has such a wide assortment of groups repre- senting diverse interests that advocates are found on more than one side of almost any issue. This is especially true if the stakes are high, as in complex litigation. Few questions about how to handle these gigantic lawsuits are matters of general agreement. Choice of law is even worse, though not necessarily because the stakes are high. Con- flicts scholars just seem to like disagreement, and they have helped to confuse courts and make a mess of choice-of-law analysis. All things considered, then, it's surprising to find even partial consensus on choice of law in complex litigation. -
Conflict of Laws in Florida 1957-1963
University of Miami Law Review Volume 18 Number 2 Article 2 12-1-1963 Conflict of Laws in Florida 1957-1963 S. A. Bayitch Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation S. A. Bayitch, Conflict of Laws in Florida 1957-1963, 18 U. Miami L. Rev. 269 (1963) Available at: https://repository.law.miami.edu/umlr/vol18/iss2/2 This Leading Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. CONFLICT OF LAWS IN FLORIDA 1957-1963 S. A. BAYITCH As stated in a recent opinion, "[t]he field of conflict of laws, the most underdeveloped in our jurisprudence from a practical standpoint, is just now breaking loose from the ritualistic theory of the last century."' It is true, of course, that traditional doctrines only rarely meet demands arising in a rapidly developing society. In this country, the transition of economic, social and political life from the intrastate level to interstate, if not international dimensions, and the vanishing significance of state lines in everyday life have profoundly changed propositions upon which our conflicts law has developed. And even though Florida may not be found among the new avant-garde, the work of her courts and legislatures bear evidence of a solid determination not to lag far behind.2 GENERAL PROBLEMS Florida courts only rarely tackle problems involving general rules of conflicts law.