Introduction Course organiser Professor Gerry Maher Assessment 100% final exam and formative assessment Lectures Friday 1000-1200 Basement Theatre, Adam House Tutorial Monday 1300-1400 Rm 2.14 50 George Square NAME OF THE SUBJECT Private International Law, International Private Law, or Conflict of Laws? International private law TERMINOLOGY Lex causae The law which governs the substantive issue or issues of the dispute Lex loci celebrationis The law of the place where the ceremony of marriage took place Lex loci contractus The law of the place where the contract was made Lex loci delicti The law of the place where the delict was committed Lex loci solitionis The law of the place where a contract is to be performed Lex fori The law of the domestic forum (where the case is being heard) Lex situs The law of the place where the property in question is situated GENERAL ASPECTS Introduction The study of international private law presupposes knowledge of core areas of Scots private law e.g., Family law, property law, succession, insolvency, and obligations Scots international private law consists of those rules of Scots private law which: i: Indicate the jurisdiction of the Scottish courts in cases with foreign elements ii: Specify: i) When these courts must apply rules of other legal systems; and ii) The legal system itself iii: Provide the recognition and enforcement within Scotland to judgements of foreign courts Choice of law rules Examples of choice of law rules: i: Contractual matters are generally governed by the applicable law ii: Delictual matters are governed by the law of the place of the delict (l.loci delicti) iii: The validity of a marriage is governed by the law of the place of the marriage (l.loci celebrationis) iv: Real rights in immoveable property are governed by the law of the property’s place (lex situs) A choice of law has two elements: i: A juridical category

1 of 39 ii: A connecting factor THE STAGES OF AN INTERNATIONAL PRIVATE LAW CASE Jurisdiction The most basic rule of jurisdiction is that a person is to be sued in the country they are domiciled Characterisation The process of deciding into which juridical category a problem falls into Solution i: Luftransportuntemehmen GmbH & Co v Eurocontrol [1976] ECR 1541 Re State of Norway’s Applications [1990] 1 AC 723 Characterise by using autonomous or jurisprudential concepts Solution ii: Re Maldonado [1954] P 223 Characterise by the lex causae n.b., Problematic as it is circular Solution iii: *Mental Industries (Salvage) Ltd v Owners of the ST Harle 1962 SLT 114 Atlantic Telecom GmbH 2004 SLT 1031 Characterise by the lex fori Essentially the dominant solution to the problem of characterisation Exceptions and modifications to the use of lex fori: i: Moveable and immoveable property is determined by the lex situs ii: Concepts and problems not known to Scots law have to be characterised iii: Legislation may specifically deal with how characterisation is to be made n.b., After characterisation the issue we will find the lex causae Finding the choice of law rule Post characterisation it is necessary to find the choice of law rule The choice of law rule will contain the applicable connecting factor e.g., Domicile is a connecting factor to the characterisation of marriage Applying the connecting factor By applying the connecting factor it is possible to identify the legal system applicable to the issue Transmission and remission (Renvoi) Does a reference to a legal system merely refer to its laws, or to its international private laws as well? Remission Where the lex causae doesn’t apply and refers the issue back to the lex fori Transmission Where the lex causae doesn’t apply and refers the issue to a third system Solutions to renvoi i: The internal approach The reference is only to the internal law of the lex causae ii: Partial Renvoi The reference to another system by the lex causae is to their internal law only iii: The Foreign Court Theory Re Annesley [1926] Ch 692; Re Ross [1930] 1 Ch 377 The references is to the whole of the lex causae including IPL rules Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54

2 of 39 Applying renvoi meant that the case could actually be heard The Islamic Republic of Iran v Berend [2007] EWHC 132 English courts only had to refer to French law Proof of foreign law In litigation, foreign rules must be proved before they can be used General limiting rules Relevant rules of the lex causae may not be used if they are limited in Scottish IPL The incidental question Subsidiary issues may be raised regarding another foreign system Solutions: i: Apply the rules, including the IPL rules, of the lex causae ii: Apply the rules, including the IPL rules, of the lex fori The distinction between procedure and substance Issues of substance are governed by the lex causae Issues of procedure are governed by the lex fori i: Rules of evidence Re Fuld’s Estate (No 3) [1968] P 675; and Rome I Regulation, Art 18(1),(2) Evidence is a matter for Scots law in Scots courts ii: Remedies Phrantzes v Argenti [1960] 2 QB 19 Remedies of Scots law can only be given by Scots courts iii: Proper parties to an action Bumper Development Corp v Commissioner of Police for the Metropolis [1991] 1 WLR 1362 The temple in question was allowed to be a party to an action iv: Damages *Kohnke v Karger [1951] 2 KB 670 Where two actions occur the second quanta of damages negates the first *Harding v Wealands [2007] 2 AC 1 Quantification is procedural and governed by the law of England Rome I Regulation Art 12(1)(c); and Rome II Regulation Art 15(c) Courts have to apply an award in line with what the lex delicti would v: Judgements in foreign currency Milangos v George Frank (Textiles) Ltd [1976] AC 443 Courts awarded damages in the currency where the contract was created vi: Prescription and limitation of actions Prescription and Limitation (Scotland) Act 1973 s 23A Foreign rules determine prescription and limitation Recognition and enforcement of judgements To be dealt with in another lecture FOREIGN LAW Proof of foreign law General rule: *Pryde v Proctor and Gamble 1971 SLT (Notes) 18

3 of 39 Foreign law must be averred and proved by the party relying on it *Bonnor v Balfour Kilpatrick 1974 SLT 187 Non-mention of local law led to Scots courts applying Scots law Emerald Stainless Steel Ltd v South Side Distribution Ltd 1983 SLT 162 Where parties fail to persuade the court of a proof of foreign law the lex fori applies Armour v Thyssen 1989 SLT 182 Parties must give the correct account of foreign law for it to be proved The court cannot ascertain the foreign law for itself Exceptions: i: English law which is part of Scots law ii: International convention which is part of Scots law iii: HL cases did not recognise UK systems as being foreign Perry v Serious Organised Crime Agency [2013] 1 AC 182 iv: General legislative exceptions to the general rule Modes of proof Foreign law may be proved by: i: Admissions ii: Remit to a foreign lawyer iii: Expert evidence SNO v Thomsons Executor 1969 SLT 325 Swedish law is proved by evidence which the Scottish courts must consider Bumper Development Corp v Comm. of Police for the Met [1991] 1 WLR 1362 ‘Comity of nations’ allowed a Hindu temple to be party under its lex situs iv: Statutory procedures British Law Ascertainment Act 1859 Foreign Jurisdiction Act 1890 Duke of Wellington’s Executor 1946 SC 32 Any higher court in ‘Her Majesty’s dominions’ may hear a case of a latter Further points to note i: Evidence (Proceedings in Other Jurisdictions) Act 1975 Act isn’t intended to apply to proof of foreign law ii: Civil Evidence Act 1972 s 4 Provisions as to the giving evidence regarding foreign law iii: The European Convention on Information on Foreign Law 1968 Sets out a ‘transmitting’ and ‘receiving’ agency for requests of information of foreign law Must be requested by an authority during a case and is not binding on the court EXCLUSION OF FOREIGN LAW Public policy Loucks v Standard Oil Co 224 NY 99 (1918) Courts do not enforce foreign rules if they are contrary to public policy in Scots law Regazzoni v Sethia [1958] AC 301 Foreign law will not be applied if its enforcement is contrary to State interests and law Oppenheimer v Cattermole [1976] AC 249 Foreign laws that deprive individuals of nationality et cetera due to race are not given effect *Winkworth v Christie [1980] Ch 496

4 of 39 No objection was given to foreign law which gave bona fide possessor of stolen goods ownership *Hammer & Sohne v HWT Realisations Ltd 1985 SLT (Sh Ct) 21 The situs of the property may alter in time and place, preventing the application of foreign law Zahnrad v Terex 1986 SLT 84 Where rules conflict then Scots law is applied Armour v Thyssen 1989 SLT 182 Scots law (wrongly) objects to foreign laws that support possessors over owners Revenue laws *Government of India v Taylor [1955] AC 491 English courts wouldn’t give effect to Indian request for taxes due from ‘English’ company *Metal Industries (Salvage) Ltd v Owners of the ST Harle 1962 SLT 114 French claim for revenue was invalid in Scottish courts as social security is characterised as a tax Peter Buchanan v McVey [1955] AC 516 Indirect enforcement of revenue will not be permitted Attorney General for Canada v Schulze & Co (1901) 9 SLT 4 Ancillary orders such as a decree for ‘expenses’, rather than taxes, will not be enforced *SNO v Thomson’s Executor 1969 SLT 325 Scottish courts allowed Scots assets to pay Swedish taxes primarily to give effect to a Swedish will Re State of Norway’s Applications [1990] 1 AC 723 English courts will give evidence to support foreign cases regarding tax ‘assessments’ Penal laws Huntington v Attrill [1893] AC 150 Damages of fraud in New York was enforced in Canada as it was private and not penal in nature *USA v Inkley [1989] QB 255 Unpaid Appearance Bond from the USA was not enforced due to the penal nature of the bond Raulin v Fischer [1911] 2 KB 93 Civil damages from a French criminal case were enforceable in an English court Banco di Viscaya v Don Alfonso De Borbon [1935] 1 KB 140 Lex fori doesn’t determine characterisation of a rule as being penal or civil Attorney General for New Zealand v Ortiz [1984] AC 1 If a claim is of a public law nature it will (probably) not be enforced in English courts Statute laws English v Donnelly 1958 SC 494 Scots law applied opposed to English law as it provided greater consumer protection Brodin v A/R Seljan 1973 SC 213 Norwegian law was not allowed to be applied where it offered less employee protection Unfair Contract Terms Act 1977 s 27 Protective rights cannot be contracted out of by parties selecting a foreign legal system SOURCES AND FUTURE DEVELOPMENTS Common law International private law had been primarily entrenched by case law Statutes International private law is increasingly stated in statute: Domicile and Matrimonial Proceedings Act 1973 Private International Law (Miscellaneous Provisions) Act 1995

5 of 39 Civil Partnership Act 2004 Family Law (Scotland) Act 2006 Scotland Act 1998 Hague Conference on Private International Law The Hague Conference has produced over 30 conventions which the UK has ratified 11 Forms of wills (1961) Recognition of divorce and separation (1970) Enforcement of maintenance (1973) Child abduction (1980) Trusts (1985) Co-operation on adoption (1993) Protection of adults (2000) Choice of court agreements (2005) EU law EU instruments are a major and increasing importance in international private law Council Regulation (EC) No 44/2001 Council Regulation (EC) No 1346/2000 Council Regulation (EC) No 2201/2003 Regulation (EC) No 864/2007 Regulation (EC) No 593/2008 Council Regulation (EC) No 4/2009 Regulation (EU) No 650/2012 Legal literature Important texts include Anton’s Private International Law The Conflict of Laws Private International Law DOMICILE Introduction Domicile is a ‘personal’ connecting factor Connects a person to a legal system General principles In Re Annesley [1926] Ch 692 i: The lex fori that determines the domicile of the individual Family Law Act 1986 s 46(5) ii: Determines domicile for the purposes of marriage iii: Domicile has the same meaning in all branches of the law iv: Every person must have a domicile Qureshi v Qureshi [1972] Fam 173 v: An existing domicile is presumed to continue vi: Domicile signifies a connection with a country Domicile of origin *Udny v Udny (1869) 7 M (HL) 89 Pre-2006 a legitimate child took the father’s domicile while an illegitimate child took the mother’s Family Law (Scotland) Act 2006 s 22

6 of 39 The child is domiciled in the country of the domicile of the parents if they are in the same country Adoption and Children (Scotland) Act 2007 s 40 An adopted person is to be treated as if born as the child of the adopters or adopter *Bell v Kennedy (1868) 6 M (HL) 69 Domicile can be lost or dormant by the acquisition of another domicile *Udny v Udny (1869) 7 M (HL) 89 Harrison v Harrison [1953] 1 WLR 865 Tee v Tee [1973] 3 All ER 1105 Naturalised American working in Germany wishing to return to England revived domicile of origin Attorney General for Alberta v Cook [1926] AC 444 Mackinnon’s Trs v Lord Advocate 1920 SC (HL) 171 Domicile of dependence (derivative domicile) Attorney General for Alberta v Cook [1926] AC 444 A woman assumes the domicile of her husband Mackinnon’s Trs v Lord Advocate 1920 SC (HL) 171 Husband moves to Australia causing wife to have Australian domicile Domicile and Matrimonial Proceedings Act 1973 s 1 Domicile of a married woman shall be independent of her husband’s Inland Revenue Commissioners v Duchess of Portland [1982] Ch 314 Woman’s domicile of dependency in England meant she owed taxes Domicile and Matrimonial Proceedings Act 1973 s 4 Where a child does not share the domicile of his father they will have the domicile of their mother Domicile of choice Issues of capacity only arise in respect to children under 16 and mentally disordered persons White v Tennant 31 W Va 790, 8 SE 596 (1888) Residence for only a few hours gave a new place of domicile *Ramsay v Liverpool Royal Infirmary 1930 SC (HL) 83 Residence for over 40 years did not amount to domicile as the individual had no such intention Clarke v Newmarsh (1836) 14 S 488 Workers may acquire the domicile of their posting if their intention is to remain Sellars v Sellars 1942 SC 206 Residence must be voluntary to contribute to a case of domicile Mark v Mark [2006] 1 AC 98 Acquisition of domicile of choice cannot be founded upon residence which is unlawful in that country *Winans v Attorney General [1904] AC 287 There must be a genuine intention to reside permanently in a country to acquire domicile *Ramsay v Liverpool Royal Infirmary 1930 SC (HL) 83 Residence without intention to permanently remain is ineffective Marchioness of Huntly v Gaskell (1905) 8 F (HL) 4 Intention to remain is less effective where place of residence can be shown to be in another country Inland Revenue Commissioners v Bullock [1976] 3 All ER 353 Intention to ultimately return to country of birth meant the party did not have English domicile Gould v Gould 1968 SLT 98 A vague intention to return to domicile of birth does not prevent the acquisition of a new domicile McEwan v McEwan 1969 SLT 342

7 of 39 A significant lack of intention to retain domicile will prevent a Scot court from taking a case Spence v Spence 1995 SLT 335 Sporadic residence to avoid tax liability does not provide a basis for a new domicile Reddington v Riach’s Exor 2002 SLT 537 A statement that the party would never move again led to them acquiring a new domicile Thomson, Petitioners 1980 SLT (Notes) 29 Physical abandonment is essential for loss of domicile of choice Udny v Udny (1869) 7 M (HL) 89 An acquired domicile is lost by removal from the country ‘animo non revertendi’ *Re Flynn [1968] 1 All ER 49 Only a loss of intention, rather than an intention never to return is required for loss of domicile Qureshi v Qureshi [1972] Fam 173 Pakistani wedding and divorce in England were valid as the parties were both domiciled in Pakistan Hague Convention on Civil Aspects of International Child Abduction A child is placed on the basis of their ‘habitual residence’ Child Abduction and Custody Act 1985 Puts into force the Hague Convention on Civil Aspects of International Child Abduction Re A [1996] 1 All ER 24 Physical presence is required for a child to be deemed habitually resident Cameron v Cameron 1996 SLT 306 No minimum period is required for habitual residence MARRIAGE International private law context of marriage Issues Marriages entered into outside of Scotland Marriages entered into in Scotland where a party has a non-Scottish link e.g., Domicile Concept of marriage i: Marriage involved relationships of a degree of permanency Hyde v Hyde (1866) LR 1 P & D 130 Polygamous marriages will not be recognised in England Nachimson v Nachimson [1930] P 217 The ease of dissolution does not invalidate the original intention to be married ii: Marriages may only involve two persons The law has had to adapt to to the idea of polygamous marriages iii: Marriage was only between one man and one woman Civil Partnership Act 2004 Family Law (Scotland) Act 2006 Marriage and Civil Partnership (Scotland) Act 2014 Extend the right to marry et cetera to same sex couples Capacity to marry i: Capacity determined by the law of domicile of each party to the marriage The ‘dual domicile’ test Family Law (Scotland) Act 2006 s 38(2) You should have the right to marry in the place of domicile of either of the parties

8 of 39 Brook v Brook (1861) 9 HLC 193 Scots law refers back to the legal capacity rules of the place of domicile Pugh v Pugh [1951] P 124 Foreign marriages are not recognised if not valid in under lex loci celebrationis De Thoren v Wall (1876) 3 R (HL) 28 Invalid Scottish marriage was still effective due to intention, habit and repute of the couple Lendrum v Chakravarti 1929 SLT 96 Hindu marriage, invalid in India, would be valid in Scotland if there was consensus in idem *MacDougall v Chitnavis 1937 SC 390 Under the domicile of the man the marriage was not valid but that was not recognised Martin v Buret 1938 SLT 479 Under the domicile of the wife her divorce was not effective until personally served ii: Relevance of capacity under the lex loci celebrationis Marriage (Scotland) Act 1977 s 20A Defines a lack of consent owing to error or duress iii: Theory of law of intended matrimonial home Radwan v Radwan (No 2) [1973] Fam 35 Capacity to polygamously marry depends on the law of the intended matrimonial home Kenward v Kenward [1951] P 124 A foreign marriage is not valid if it does not confirm to the lex loci celebrationis Lawrence v Lawrence [1985] Fam 106 Establishment of the matrimonial home in England meant that the marriage was valid iv: Non-application of foreign incapacity or capacity Family Law (Scotland) Act 2006 s 38(4) Capacity is not determined by domicile immediately before the marriage Family Law Act 1986 s 50 That a divorce is not recognised elsewhere does not preclude it being recognised in Scotland Lawrence v Lawrence [1985] Fam 106 If Scots law recognises foreign divorce then the parties have capacity to remarry v: Non-recognition of foreign capacity Cheni v Cheni [1985] P 85 Marriage between close relations had capacity to marry *Mohamed v Knott [1969] 1 QB 1 Nigerians’ capacity to marry allowed despite the girl being only 13 years old Clive, 1977 SLT (News) 225 Marriage (Scotland) Act 1977 s 1 No person domiciled in Scotland may marry before the age of 16 Marriage (Scotland) Act 1977 s 2 No person domiciled in Scotland may marry a relation of a forbidden degree Marriage (Scotland) Act 1977 s 3 A party not domiciled in Scotland must have a certificate of legal capacity Marriage (Scotland) Act 1977 s 5 If parties are not free to marry in their own domicile then they are not able to marry Marriage (Scotland) Act 1977 s 7 If a party resides in Scotland the registrar may provide a certificate of legal capacity

9 of 39 Formalities of Marriage Family Law (Scotland) Act 2006 s 38(1) The validity of a marriage is determined by the law of the place where the marriage was celebrated Cullen v Gossage (1850) 12 D 633 Marriage in Paris was void as it did not meet French marriage laws *Berthiaume v Dame Dastous [1930] AC 79 Where a marriage is valid in the country of its occurrence then it is valid everywhere Starkowski v Attorney-General [1954] AC 155 Marriage was void as it did not meet Polish marriage laws but was considered retrospectively valid Prawdzic-Lazarska v Prawdzic-Lazarski 1954 SC 98 Marriage might not have been retrospectively valid as it was in Starkowski v Attorney-General Barclay v Barclay (1849) 22 Sc J 127 Common law exception where local forms unreasonable or cannot be observed Foreign Marriage Acts 1892-1988 Exception under these acts allowed for foreign marriages not to be observed e.g., Consular marriages, armed forces marriages, et cetera Consent Classification i: Consent as a formality ii: Consent as an essential requirement Family Law (Scotland) Act 2006 s 38(2) The law of the place where the person was domiciled before the marriage determines fact of consent i: Fact of consent Szechter v Szechter [1971] P 286 Polish domiciles’ remarriage to release a prisoner was annulled for lack of consent Di Rollo v Di Rollo 1959 SC 75 Italian law deemed no consent given but under Scots law the marriage was valid Macdonald v Macdonald (1863) 1 M 854 Consent was shown by writing rather than the correct procedure ii: Method of consent *Apt v Apt [1948] P 83 Method of consent via proxy marriage was valid by foreign law and recognised McCabe v McCabe [1994] 1 FLR 410 Marriage in Guana unattended by either party was valid by Guanian law A v K 2011 SLT 873 Marriage via telephone took place in Pakistan and was governed by their rules Family Law (Scotland) Act 2006 s 38(5) Parental consent only invalidates a marriage when it would invalidate any marriage anywhere Bliersbach v McEwen 1959 SC 43 Dutch marriage in Scotland that broke Dutch law of parental consent was valid Polygamous marriages Hyde v Hyde (1866) LR 1 P & D 130 English courts gave no recognition to a polygamous marriage Muhammad v Suna 1956 SC 366 Pakistan domiciles married there wished to divorce in Scotland but was impossible

10 of 39 Lee v Lau [1967] P 14 The lex fori will determine whether a marriage is polygamous Cheni v Cheni [1965] P 85 Those in potential polygamous marriages with English domicile will be recognised as married Ali v Ali [1968] P 564 Adoption of English domicile made a potentially polygamous marriage into a monogamous one Matrimonial Proceedings (Polygamous Marriages) Act 1972 s 2 It doesn’t matter if the marriage is polygamous for separation et cetera *Onabrauche v Onabrauche (1978) Fam Law 107 Polygamous divorce in England on basis of ‘adultery’ was valid for ‘unreasonable conduct’ Social Security Contributions and Benefits Act 1992 s 121(1)(b) Recognition is given to a potentially polygamous marriage but not to an actual polygamous marriage *Baindail v Baindail [1946] P 122 Married man from Pakistan could not marry an English woman in England R v Sagoo [1975] 1 QB 885 An actual polygamous marriage is not the crime of bigamy and is purely civil Bamgbose v Daniel [1955] AC 107 Children of a polygamous marriage are regarded as legitimate Hashmi v Hasmi [1972] Fam 36 Children of a polygamous marriage are regarded as legitimate Nabi v Heaton [1983] 1 WLR 626 Separated polygamous husband could pay child maintenance twice and get revenue relief Lendrum v Chakravarti 1929 SLT 96 Aside from lack of consensus Indian domiciled parties’ marriage would have been valid Matrimonial Causes Act 1973 s 11(d) Polygamous marriages entered into outside the UK is void Hussain v Hussain [1983] Fam 26 English domiciled man was allowed to enter into a polygamous marriage by marrying in Pakistan Private International Law (Miscillaneous Provisions) Act 1995 s 7 A person domiciled in Scotland that marries under law that allows polygamy will be recognised Civil partnership Civil Partnership Act 2004 s 1(1) A civil partnership registered elsewhere in the UK will be recognised in Scotland ACTIONS—MARRIAGE AND OTHER RELATIONSHIPS Divorce, Nullity, and Separation: Jurisdiction Le Mesurier v Le Mesurier [1895] AC 517 Jurisdiction is based upon the domicile of the husband A-G for Alberta v Cook [1926] AC 444 Requirement of domicile in Scotland at date of raising proceedings Law Reform (Scotland) Act 1949 Aimed to minimise harshness of the domicile rule Council Regulation (EC) No 1347/2000 (Brussels II bis Regulation) Deals with certain matrimonial proceedings and parental responsibility n.b., Does not apply to intra-UK cases (which are governed by DMPA 1973) Grounds of jurisdiction

11 of 39 Under the Regulation jurisdiction lies with the courts of the Member States where: i: The spouses are habitually resident; ii: The spouses were last habitually resident, insofar as one of them still resides there; iii: The respondent is habitually resident; iv: In the event of a joint application, either of the spouses is habitually resident; v: The applicant is habitually resident if resident for at least a year before application; vi: The applicant is habitually resident if resident for at least six months and a citizen of an EU MS vii: Both spouses are nationals or are domiciled L-K v K (No 2) [2006] EWHC 3280 (Fam) Establishment of habitual residence does not require a particular amount of time in the country Sheriff court jurisdiction in Regulation cases DMPA 1973 s 8(2)(b) Either party to the marriage must be resident in the sheriffdom for 40 days prior to the action Conflicts of jurisdiction under the Regulation: Lis pendens Art 19 The basic rule is that preference is given to the court first seised of the action Domicile and Matrimonial Proceedings Act 1973 Only applicable in cases not governed by the EU regulation *De Dampierre v De Dampierre [1988] AC 92 The court will sist any Scottish action if another action in another jurisdiction is active and closer Mitchell v Mitchell 1993 SLT 123 Judicial disposal regarding heritable property in Scotland is better heard by a Scottish court n.b., Does not apply to proceedings relating to same sex marriage Presumption of Death (Scotland) Act 1977 s 1 Provisions on the jurisdiction in actions of declarator of presumption of death Choice of law Former approach Jurisdiction is assumed on basis of domicile which tends to coincide with the lex fori Actions of divorce Jack v Jack (1862) 24 D 467 The lex fori will be applied in Scots law Actions of nullity Aldridge v Aldridge 1954 SC 58 The courts applied Scots law as the lex fori Family Law (Scotland) Act 2006 s 38(1); Lex loci celebrationis *Singh v Singh 2005 SLT 749 The courts will apply the substantive law where Scots law doesn’t deal with it Recognition of foreign judgements Common law i: Divorce Le Mesurier v Le Mesurier [1895] AC 517 Only divorces granted by the court of the husband’s domicile are recognised in Scotland Armitage v Attorney-General [1906] P 135 English courts recognise validity of divorces recognised by law of husband’s domicile

12 of 39 Travers v Holley [1953] P 246 If English courts could assume jurisdiction to grant divorce then a foreign divorce is recognised Indyka v Indyka [1969] AC 33 A foreign divorce is recognised under a legal system that the marriage had a substantial connection Galbraith v Galbraith 1971 SC 65 A Finnish decree for divorce was recognised as the wife had a real and substantial connection there Bain v Bain 1971 SC 146 A Japanese misinterpretation and decree for divorce was recognised as no objection could be made ii: Nullity Administrator of Austrian Property v Von Lorang 1927 SC (HL) 80 Foreign decrees of nullity are recognised if pronounced by a foreign court of competent jurisdiction Family Law Act 1986 Pt II Provisions on the recognition of divorces, annulments, and legal separations Matrimonial decrees of the British Islands Family Law Act 1986 s 44(1) No decree granted in the British Islands is effective unless granted by a court of civil jurisdiction Sulaiman v Juffali [2002] 1 FLS 479 Divorce was not effective as it had not been granted by a court of civil jurisdiction *R v Secretary of State for Home Department, ex parte Fatima [1986] AC 527 Divorce was not effective where it (talaq) would require further transnational procedure in Pakistan Berkovits v Grinberg [1995] Fam 142 Divorce was not effective where it (get) would require further procedure in Israel Family Law Act 1986 s 44(2) Any divorce granted by a court of civil jurisdiction in the British Islands must be recognised in the UK Vervaeke v Smith [1983] 1 AC 145 Res judicata lead to refusal of recognition of a divorce in the UK Non-UK divorces, annulments, and legal separations Brussels II bis Regulations Art 21 A divorce pronounced by a court of a Regulation State will be recognised in the UK Brussels II bis Regulations Art 22 Exceptions to recognition of divorce in the UK Family Law Act 1986 § 46-9 Provisions for recognition of divorces outwith the British Islands and the EU Family Law Act 1986 s 46(1-2) Provisions differ depending upon if proceedings or otherwise were used Quazi v Quazi [1980] AC 744 Proceedings used will be recognised where they are officially recognised in the country they are taken *Chaudhary v Chaudhary [1985] Fam 19 Failure in foreign proceedings led to a failure of recognition by English courts Family Law Act 1986 s 46(4) Connecting factor is determined upon date of deceased’s death where proceedings were incomplete Grounds for refusing recognition of overseas divorce obtained by proceedings i: Res judicata Family Law Act 1986 s 51(1)(b) Where a divorce is irreconcilable with a prior decision then ti will not be recognised

13 of 39 ii: No subsisting marriage Family Law Act 1986 s51(2)(b) Where Scots law doesn’t recognise the validity of a marriage a decree of divorce may be refused iii: Procedural irregularity Family Law Act 1986 s51(3)(a) Divorce may not be recognised where reasonable notice or taking part of proceedings is not provided Newmarch v Newmarch [1978] Fam 79 Divorce was recognised despite the wife not being represented as there were other valid grounds *Joyce v Joyce and O’Hare [1979] Fam 93 Canadian divorce not recognised as the wife had not been given ample opportunity to take part in UK A v L [2010] EWHC 460 (Fam) Egyptian divorce not recognised as the wife had no knowledge of it, allowing her to divorce him in UK Crabtree v Crabtree 1929 SLT 675 Wife’s lack of knowledge or notice of divorce in Latvia was not recognised in the UK Scott v Scott 1937 SLT 632 Divorce was not recognised where the wife had been given no notice of the divorce action iv: Public policy Family Law Act 1986 s 51(3)(c) Divorce may be refused recognition where it would be manifestly contrary to public policy *Kendall v Kendall [1977] Fam 208 Signature obtained by husband via deception invalidated divorce agreement against wife Golubovich v Golubovich [2011] Fam 88 First of two divorce actions in different States will be recognised if it does not deprive either party Perin v Perin 1950 SLT 51 Only fraud against the spouse will invalidate a decree, not fraud against the court granting the decree PARENT AND CHILD PARENTAL RESPONSIBILITY Jurisdiction Geographical scope of the Regulation Brussels IIa Regulation (Council Regulation) (EC) No 2201/2003 Applies to allocate jurisdiction in proceedings relating to parental responsibility between EU MS S v D 2007 SLT (Sh Ct) 37 Habitual residence is the basis of establishing jurisdiction of the court *B v B 2009 SLT (Sh Ct) 24 Brussels IIa Regulation likely only applies where there is a question of jurisdiction between EU MS Scope of the Regulation: Types of action Brussels IIa Regulation Art 1(b) Applies to attribution, exercise, delegation, restriction or termination of parental responsibility Brussels IIa Regulation Art 2(7) Defines parental responsibility as all rights and duties relating to a child given to a natural person Brussels IIa Regulation Art 1(3) Provisions on issues that the Regulation does not apply to Rules on jurisdiction in parental responsibility proceedings Brussels IIa Regulation Art 8

14 of 39 Actions relating parental responsibility are to take place in the court of the child’s habitual residence Proceedings brought by A [2009] ECR I-2805 Habitual residence is interpreted as meaning the place in which the child has a degree of integration Brussels IIa Regulation Art 9, 10, 12, and 13 Provisions relating to exceptions to the general rule in Art 8 Brussels IIa Regulation Art 9 Provisions allowing a former habitual residency to retain jurisdiction for 3 months after moving Brussels IIa Regulation Art 10-11 Provisions on the jurisdiction in cases of child abduction Brussels IIa Regulation Art 12 Provisions on the prorogation of jursidiction Brussels IIa Regulation Art 13(1) If the child’s habitual residence cannot be ascertained then jurisdiction is with the state they are in Brussels IIa Regulation Art 14 Residual jurisdiction applies where no court of a MS has jurisdiction under Art 8-13 Transfer to a better placed court Brussels IIa Regulation Art 15 Provisions allowing a court with jurisdiction to transfer the case if another court is better placed Lis pendens and dependent actions Brussels IIa Regulation Art 19 Where a second case is brought during the first regarding the same issue then the second will stay Jurisdiction under the Family Law Act 1986 Family Law Act 1986 Pt 1 Ch III ‘Subject’ to Brussels IIa Regulation Art 8-20 Orders to which Part I applies Family Law Act 1986 s 1(1)(b) Provisions for oders made by a Scots court in respect to the residence, custody, or care of a child Grounds of jurisdiction: Independent and dependent (continuing) proceedings ‘Pt 1’ orders cannot be granted in independent proceedings if matrimonial proceedings are ongoing in the UK Jurisdiction in independent proceedings Family Law Act 1986 s 9 Provisions on jurisdiction in Scottish courts where the child is habitually resident in Scotland Dorward v Dorward 1994 SCLR 928 Habitual residence is to be determined as at the date of the application for the order Family Law Act 1986 s 41(1-2) Special provisions regarding attempts to thwart the court’s jurisdiction by removing the child Morris v Morris 1993 SCLR 144 Where a child is wrongly displaced by an individual the court retains jurisdiction for one year Family Law Act 1986 s 10 If there are no continuing proceedings the Court of Session has jurisdiction if the child is present *Hill v Hill 1991 SLT 189 Foreign court was more appropriate as the father had no right of abode in the UK to enforce custody Jurisdiction in matrimonial or civil partnership proceedings Family Law Act 1986 s 13(3) Court lacks jurisdiction where decree for separation is followed by divorce or nullity

15 of 39 Family Law Act 1986 s 134 Court lacks jurisdiction where it has not granted the principal remedy in the action Family Law Act 1986 s 13(6) The court may decline its jurisdiction where it considers another court is more appropriate Emergency jurisdiction Family Law Act 1986 s 12 A Scottish court has jurisdiction on an emergency basis even if another court has it permanently Variation and recall of orders Family Law Act 1986 s 15(2) The court that makes a Part I order retains power to vary or recall it until another order is made Choice of law Children (Scotland) Act 1995 s 14 Provisions regarding law of the place of habitual residence, current location, and guardianship Children (Scotland) Act 1995 s 11 Provisions regarding orders relating to parental responsibilities Recognition and enforcement of foreign judgements Brussels II bis Art 23 Grounds of non-recognition for judgements relating to parental responsibility Brussels II bis Art 24 Prohibition of review of jurisdiction of the court of origin Brussels II bis Art 26 No review as to the substance of a judgement Brussels II bis Art 28 Provisions on the enforcement of judgements Family Law Act 1986 s 25 Provisions on the recognition of custody orders in general Family Law Act 1986 s 27 Provisions on the registration in one part of the UK of an order made in another Family Law Act 1986 s 29 Provisions on the enforcement of the order in the part of the UK in which it is registered *Woodcock v Woodcock 1990 SC 267 Order granted without hearing from mother was held to be invalid in Scots law Judgements emanating from other countries Family Law Act 1986 s 26 Provision on recognition of foreign orders in Scotland LEGITIMACY AND LEGITIMATION Jurisdiction Family Law (Scotland) Act 2006 s 21(2) Actions for declarator of legitimacy, legitimation, or illegitimacy are no longer competent Law Reform (Parent and Child) (Scotland) Act 1986 s 7(5) No rule prevents a court making an incidental finding of parentage for the purpose of those findings Choice of law Law Reform (Parent and Child) (Scotland) Act 1986 s 1(1) Provisions regarding the abolition of status of illegitimacy in Scots law Family Law (Scotland) Act 2006 s 41

16 of 39 Provisions regarding the effect of their parents’ marriage or non-marriage in the country of domicile ADOPTION OF CHILDREN Introduction Adoption and Children (Scotland) Act 2007 Provisions relating to the adoption of children in Scotland Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (1993) Implemented by the Adoption (Intercountry Aspects) Act 1999 Adoption orders Adoption and Children (Scotland) Act 2007 Jurisdiction lies with what is the appropriate court Adoption and Children (Scotland) Act 2007 § 28-34 Provisions on the making of an adoption order Adoption and Children (Scotland) Act 2007 s 29(3) A member of the couple must be domiciled in the British Islands or habitually resident for 1 year Adoption and Children (Scotland) Act 2007 s 29 Adoption by certain couples Adoption and Children (Scotland) Act 2007 § 30(3)(d); 30(6) Provisions on adoption by one person Adoption and Children (Scotland) Act 2007 § 21(3)(b) Provisions on a court’s power for removal of a child placed for adoption Where a child been removed in breach of § 20-23 an application may be made for an order to return the child Adoption and Children (Scotland) Act 2007 s 60 It is generally a criminal offence to remove a child who is resident in the UK or the Commonwealth Adoption and Children (Scotland) Act 2007 s 59(1-2) A court may make an order vesting PRRs in relation to the child in the prospective adopters Adoption and Children (Scotland) Act 2007 Permanence orders regard regulating the exercise of PRRs for children not living with their parents n.b., Permanence orders lie with the appropriate court Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 Convention adoption applies where a habitually resident child moving between Contracting States Choice of law Re B (S) (An Infant) [1968] Ch 204 Consideration of the child was given and Spanish law was looked at Recognition of foreign adoptions Adoption and Children (Scotland) Act 2007 s 77 Adoption orders made in a region of the UK are recognised throughout the UK Adoption and Children (Scotland) Act 2007 s 67 Provision regarding a list of states in which statutory based adoptions are recognised in Scotland Brown, Petitioners 2015 SLT 378 An Ethiopian adoption order was recognised in Scots law Application of a tripartite test: i: Was the adoption obtained wholefully lawfully in the country obtained? ii: Did the type of adoption conform to adoption in Scotland? iii: Is there public policy that would mitigate against recognition? Re Valentines Settlement [1965] Ch 831

17 of 39 There is no clear rule on recognition of foreign adoption at common law CUSTODY ORDERS The common law approach Ponder v Ponder 1932 SC 233 The court had jurisdiction to determine questions of custody because of the husband’s domicile Williams Petr 1977 SLT (Notes) 2 To enforce an order a child must be domiciled with one parent and without home with the other Westergaard v Westergaard 1914 SC 977 Courts do not have jurisdiction in cases already determined by the court of the parents’ domicile Radoyevitch v Radoyevitch 1930 SC 619 Court has the right to be informed of the petitioner’s arrangements before ordering delivery Kelly v Marks 1974 SLT 118 A petition from childhood guardian and grandmother was relevant despite an existing Dutch order Lyndon v Lyndon 1978 SLT (Notes) 7 Foreign courts are preferred if evidence is easily obtained and the children’s welfare protected there Custody orders made elsewhere in the UK or of a country not party to the Hague or Council of Europe Convention Family Law Act 1986 § 25, 26, 27, 29 Covered in a lecture on parental responsibility Cases under the Hague Convention on International Child Abduction Child Abduction and Custody Act 1985 Gives effect to: i: Pt 1 and Sch 1 puts into effect: a: Convention of the Civil Aspects of International Child Abduction n.b., Currently in use by some 80 countries n.b., Main provisions found in Art 3, 4, 8, 12, and 13 ii: Pt II and Sch II puts into effect: b: Council of Europe Convention on Recognition . . . n.b., Has gone into disuse and not important Child Abduction and Custody Act 1985 s 4 Only the Court of Session has jurisdiction under this Act Convention of the Civil Aspects of International Child Abduction Art 3 Removal of the child is wrong where: i: it is in breach of the custody over child law of the State where they are habitually resident; ii: those custody rights were actually exercised Perrin v Perrin 1995 SLT 81 Removal from France was unlawful as it breached an order amounting to a letter stating the law *Seroka v Bellah 1995 SLT 204 Removal from Texas was lawful as father only had access rights and not custody rights McKiver v McKiver 1995 SLT 790 Removal from Australia was unlawful as the father had never denounced his custody rights under law *Bordera v Bordera 1995 SLT 1176 Rights less than, but akin to, custody rights will be enforced as so by Scottish courts where broken Pirrie v Sawacki 1997 SLT 1160 Removal from USA was lawful as the mother had been given custody of the child Convention of the Civil Aspects of International Child Abduction Art 13

18 of 39 Foreign law does not need to be proved as a fact in a Scottish court Convention of the Civil Aspects of International Child Abduction Art 4 Convention only applies to children under 16 years old habitually resident in a Contracting State Cameron v Cameron 1996 SLT 306 Residence of 3 months amounted to habitual residence in Scotland Watson v Jamieson 1998 SLT 180 Residence of 2 years amounted to habitual residence in Scotland *D v D 2001 SLT 1104 A party is not habitually resident when residence is short and circumstances of living there uncertain *M, Petitioner 2005 SLT 2 Residence of 2 years in Ireland amounted to habitual residence there Convention of the Civil Aspects of International Child Abduction Art 8 Provision that a Central Authority may be applied to for safe return of a child n.b., Scottish Ministers, operated by the EU and International Law Brance Convention of the Civil Aspects of International Child Abduction Art 12 If a Contracting State wrongfully removes a child they must return them if a year has not passed Perrin v Perrin 1995 SLT 81 Application after deadline was allowed as the child was too young to be settled *Soucie v Soucie 1995 SLT 414 Application 2 years after wrongful removal was allowed as the child was too young to be settled Convention of the Civil Aspects of International Child Abduction Art 13 Court may refuse to return a child after a year has passed where: i: there was no exercise of custody rights or consented to the removal of the child ii: there is a risk that the child’s return would expose them to harm iii: the child objects to its return and their view should be regarded *Zenel v Haddow 1993 SLT 975 Where a party consents to the removal of the child they cannot enforce their custody rights Findlay v Findlay (No 2) 1995 SLT 492 Father did not give up custody in agreement that the child goto Scotland and later return *Soucie v Soucie 1995 SLT 414 Delay in seeking an order was not acquiesce of the child’s removal as it was due to bad legal advice T v T 2003 SLT 1316 Father’s statement of ‘understanding’ his wife’s needs amounted to an agreement to remove the child *M v M (International Abduction) 2003 SLT 330 Delay due to believe that an order would be costly was not acquiescence due to his inability to finance *MacMillan v MacMillan 1989 SLT 350 Court would not order child wrongfully taken to return to Canada due to father’s alcoholism *Urness v Minto 1994 SLT 988 Brothers were split up when one brother was too young have their view taken into account in an order McCarthy v McCarthy 1994 SLT 743 Risk caused by the father being a diabetic was not taken to be a danger by the court Starr v Starr 1999 SLT 335 Risk of psychological harm of returning child was due to mother’s wrongful taking of them *D v D 2001 SLT 1104 Risk of harm due to parents bad relations was not a danger as they did not have to live together

19 of 39 M, Petitioner 2007 SLT 433 Risk of health problems due to being in Australia were not a grave risk *Urness v Minto 1994 SC 249 Children’s wish to remain was partially disregarded but they would both remain for their own welfare Marshall v Marshall 1996 SLT 429 Child’s wish not to remain was too vague to take into account Cameron v Cameron (No 2) 1997 SLT 206 Children’s wishes to remain and leave were disregarded so that they may remain together *Singh v Singh 1998 SLT 1084 It was not in the best interest of two children to separate them by returning one to Canada Neulinnger and Shuruk v Switzerland [2011] 1 FLR 122 The welfare of the child is paramount and thus a multiplicity of factors must be considered *In Re E (Children) [2012] 1 AC 144 The operation of the Hague Convention is best served in the country of the child’s habitual residence In Re S (A Child) [2012] 2 AC 257 A child will not be returned to a mother who may reasonably or unreasonably be mentally unstable Interaction of Brussels II bis Regulation with the Hague Convention Brussels II bis Regulation Art 10 Courts of the MS where the child was habitually resident prior to wrongful removal have jurisdiction Brussels II bis Regulation Art 10(a) Jurisdiction passes when they gain a new habitual residence and custody is acquiesced Brussels II bis Regulation Art 10(b)(i) Jurisdiction passes if they have resided in another MS for a year and no request for return is made Brussels II bis Regulation Art 10(b)(ii) Jurisdiction passes if they have resided in another MS for a year and request for return is withdrawn Brussels II bis Regulation Art 10(b)(iii) Jurisdiction passes if they have resided in another MS for a year and there any case has been closed Brussels II bis Regulation Art 10(b)(iv) Jurisdiction passes if they have resided in another MS for a year and a case didn’t require return Povse v Alpago [2011] Fam 199 A court decision that didn't require return of the child passed the jurisdiction onto their new residence Brussels II bis Regulation Art 11 Provisions regarding the return of the child consistent with the Hague Convention Aguirre Zarraga v Pelz [2011] ILPr 32 It was solely a matter for the courts of the MS of origin to assess whether such a breach had occurred *Vigreux v Michel [2006] EWCA Civ 630 Welfare considerations should not be given more weight than the policy of the Convention Re T & J (Children) (Abduction: Recognition of Foreign Judgement) [2006] EWHC 1472 (Fam) Where return of the children is not acquiesced the court will given effect to EU MS judgements Re ML v AL (Children) (Contact Order: Brussels II Regulation) (No 1) [2006] EWHC 2385 (Fam) Attempts to make applications to courts other than allowed by an order or agreement are abuses *Re F (A Child: Application for Child Party Status) [2007] EWCA Civ 393 Obligation to hear and give respect to a child’s rights did not mean they should be party to the case HA v MB (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam) English court retained power to make orders where a French court made a non-return order

20 of 39 In Re F (Children) (Abduction: Rights of Custody) [2008] Fam 75 Where the children strongly objected to being returned the court did not order their return to Poland CIVIL AND COMMERCIAL JURISDICTION Introduction Jurisdiction Defined as the power of the court of any legal system hearing and determining an action brought to it Key legal instruments Brussels I bis Regulation (Regulation (EU) No 1215/2012) The recast of Brussels I that deals with jurisdiction between EU member states after 10 Jan 2015 Brussels I Regulation (Council Regulation (EC) No 44/2001); Deals with jurisdiction between EU member states prior to 10 Jan 2015 Brussels (‘Judgements’) Convention (1968); Aimed to establish ‘free movement’ of judgements Lugano Conventions (1988) (2007) Created a parallel convention between EC and EFTA member states Civil Jurisdiction and Judgements Act 1982 Puts into force the Brussels Regulations and the Lugano Convention of 2007 Civil Jurisdiction and Judgements Act 1982 Sch 4 Allocates jurisdiction to the court so f the appropriate ‘part’ of the UK Civil Jurisdiction and Judgements Act 1982 s 17 Provisions excluded from the scope of Sch 4 Kleinwort Benson v City of Glasgow DC [1995] ECR I-615 Interpretation by the ECJ of the Convention is not binding where the Convention is not applicable Civil Jurisdiction and Judgements Act 1982 Sch 4 § 2-3 Provision that where a person is domiciled then they should be taken to court in that part of the UK Civil Jurisdiction and Judgements Act 1982 Sch 8 Provisions relating to defenders domiciled in Scotland or a non-EU or Lugano Convention state Civil Jurisdiction and Judgements Act 1982 Sch 9 Provisions relating to exclusions to Sch 8 Civil Jurisdiction and Judgments Act 1982 s 20(5) Provisions relating to interpretation of Sch 8 whereby courts have to give regard to ECJ decisions Structure of the Civil Jurisdiction and Judgments Act 1982: i: Actions within the scope of the Regulation or Conventions apply ii: Defenders domiciled in an EU state are governed by the Regulation iii: Defenders domiciled in a non-EU Lugano Convention state are governed by the Convention iv: Defenders domiciled in the UK are governed by the SCJJA 1982 Sch 4 v: Defenders outside of the EU and Lugano Convention states are governed by the SCJJA 1982 Sch 8 Scope of the regulation Brussels I bis Regulation Art 1 Restricted to ‘civil and commercial matters’ but not to revenue, customs, or administrative matters Applicability of Brussels I bis LT GmbH & Co v Eurocontrol [1976] ECR 1541 ‘Civil and commercial’ to exclude public authorities if public law is being utilised *Netherlands v Ruffer [19080] ECR 3807 Civil and commercial concepts are independent and are upto the ECJ to determine

21 of 39 *Gemeente Steenbergen v Baten [2002] ECR I-10489 Recovery of child maintenance is not possible as it is not a ‘civil and commercial’ matter Freistaat Bayern v Blijdenstein [2004] ECR I-981 An exercise of public powers by the public authority is not a ‘civil and commercial’ relationship Frahuil SA v Assitalia SpA [2004] ECR I-1543 Obligation created by agency was not covered by the Convention and required a MS court to examine Lekhoritou v Germany [2007] ECR I-1519 ‘Civil matters’ does not cover natural persons against a contracting state for compensation Non-applicability of Brussels I bis De Cavel v De Cavel (No 1) [1979] ECR 1055 The Convention does not allow enforcement of a freeze of assets of a divorcing couple Van den Boogaard v Laumen [1997] ECR I-1147 The Convention does not regard matters of rights in property out of a matrimonial relationship Gourdain v Nadler [1979] ECR 733 ‘Civil and commercial matters’ can only be fully understood in the light of the Convention’s objectives Marc Rich & Co v Societa Italiana Impianti [1991] ECR I-3855 Arbitration is intended to be excluded because it falls within existing international agreements Van Uden Maritime BV v Deco-Line [1998] ECR I-7091 Where jurisdiction is had over substance of a dispute it also had jurisdiction of provisional measures West Tankers Inc v Allianz SpA (formerly Riunione Adriatica di Sicurta SpA) [2009] ECR I-663 Whether arbitration falls under the Regulation should be determined by the substance of the dispute Primacy of domicile as the basis of jurisdiction Brussels I bis Art 4 A person domiciled in a Regulation State shall be sued in courts of that state Brussels I bis Art 62 Courts apply internal laws or the law of another MS to determine domicile Brussels I bis Art 63 Provisions regarding domicile of companies or other legal persons Civil Jurisdiction and Judgements Order 2001 (SI 2001/3929) Defines domicile for the Brussels I Regulation Civil Jurisdiction and Judgements Regulations 2009 (SI 2009/3131) Defines domicile for the Lugano Convention Civil Jurisdiction and Judgements Act 1982 s 41 A person is domiciled in the UK if resident and substantially connected there *Daniel v Foster 1989 SLT (Sh Ct) 90 An individual may have multiple residences allowing jurisdiction Civil Jurisdiction and Judgements Act 1982 § 42-43 Corporations are domiciled where they have their seat (registered office) Civil Jurisdiction and Judgements Act 1982 s 45 Provisions relating to the domicile of trusts Civil Jurisdiction and Judgements Act 1982 s 46 Provisions relating to the domicile of the Crown Jurisdiction in addition to the defender’s domicile Brussels I bis Regulation Arts 7-8 In certain circumstances a person domiciled in a Regulation State may be sued in another such state

22 of 39 Lex loci solitonis Brussels I bis Regulation Art 7(1) Provision regarding where a party may be sued depending upon the place of performance or delivery De Bloos SPRL v Bouyer SA [1976] ECR 1497 ‘Obligation’ in Art 7(1)(a) defined as contractual obligations forming the basis of legal proceedings Tessili v Dunlop [1976] ECR 1473 Where parties disagree the plaintiffs should sue at the court where the obligation was to be fulfilled Zelger v Salinitri [1980] ECR 89 The lex loci contractus decides the validity of the agreement as to the place of performance Effer SpA v Kantner [1982] ECR 825 The court of the place of performance has jurisdiction to determine questions regarding a contract Peters GmbH v ZNAV [1983] ECR 987 Payment based in relationship between association and its members are matters relating to a contract Arcado SPRL v Haviland SA [1988] ECR 1539 The courts of the country of performance of the agency had jurisdiction in a contract dispute Powell Duffryn plc v Petereit [1992] ECR I-1745 Clauses conferring jurisdiction on a contracting state constitute an agreement conferring jurisdiction Soc Handte & Cie GmbH v TCMS [1992] I L Pr 428 Contracts include those with sub-purchasers in respect to defects of the product Custom Made Commercial v Stawa Metallbau [1994] ECR I-2913 Use of criteria other than the place of performance cannot be accepted on grounds of unforeseeability Mainschiffahrts-Genossenschaft eG MSG v Les Gravieres Rhenanes Sarl [1997] ECR I-911 Lack of objection to contract terms regarding place of jurisdiction will amount to consensus in idem Lethertex Divisione Sinitetics SpA v Bodetex BVBA [1999] ECR I-6747 Two obligations of a single contract will prevent a single court from having sole jurisdiction GIE Group Concorde v Master of the Vessel Suhadiwarno Panjan [1999] ECR I-6307 Place of performance is to be determined by the law governing the relevant obligation *Frahuil SA v Assitalia SpA [2004] ECR I-1543 An unknown third party cannot enforce payment from the principle as there is no consensus in idem *Engler v Janus Versand GmbH [2005] ECR I-481 ‘Award of a prize’ from one MS gave jurisdiction to the MS of the pursuer’s place of domicile *Kleinwort Benson Ltd v City of Glasgow DC [1999] 1 AC 153 Claim of unjustified enrichment is not recognised by the Regulation and so is not enforceable Bank of Scotland v IMRO Ltd 1989 SLT 432 Jurisdiction cannot be given to any court if there is no place of performance *Bank of Scotland v Seitz 1990 SLT 584 Where there was no agreement of place of payment then it will be the place of the creditor Engdiv Ltd v G Percy Trentham Ltd 1990 SLT 617 Suing for matters relating to contracts creates a sufficient basis for establishing jurisdiction *Strathaird Farms Ltd v GA Chattaway & Co 1993 SLT (Sh Ct) 36 ‘In matters relating to a contract’ should be interpreted as ‘in proceedings based upon contract’ O’Neill v Tebbett 1994 SLT 752 Scottish courts have jurisdiction in cases relating to contracts to be performed in Scotland Montague Evans v Young 2000 SLT 1083 To establish jurisdiction an entitlement to payment in the location must be shown

23 of 39 *Eddie v Alpa Srl 2000 SLT 1062 Jurisdiction is not be with the place of sale or billing but with the place of delivery Ferguson Shipbuilders Ltd v Voith Hydro GmbH & Co KG 2000 SLT 229 Where a contract is most closely connected with Scotland then Scots courts have jurisdiction Bitwise Ltd v CPS Broadcast Products BV 2003 SLT 455 To determine jurisdiction it is necessary that the principal obligation formed part of the proceedings Brussels I Art 5(1)(b); Brussels I bis Art (7(1)(b) The place of performance of the obligation is defined in two situations by the: i: sale of goods; and ii: provision of services Color Drack GmbH v Lexx International Vertriebs GmbH [2007] ECR I-3699 Where multiple places of delivery exist the principal place shall have jurisdiction within that MS Lex loci delicti Brussels I bis Regulation Art 7(2) Matters of delict or quasi-delict are for the court of the place where the delict occurred *Bier v Mines de Potasse d’Alsace SA [1976] ECR 1735 Pollution from France was harming a river in the Netherlands allowed both countries jurisdiction Kalfelis v Schroder, Munchmeyer, Hengst [1988] ECR 5565 To sue for delict against multiple persons their actions must be sufficiently connected to the harm *Dumez France SA v Hessische Landesbank [1990] ECR I-49 The place of the damage occurred means the place where the act caused the harm Reichert v Dresdner Bank [1992] ECR I-2149 The concept of delict or quasi-delict in Art 5(3) is a concept that must interpreted by national law *Shevill v Presse Alliance SA [1995] ECR I-415 Applied Bier v Mines de Potasse d’Alsace SA to defamation cases allowing claims in each country *Marinari v Lloyds Bank plc [1995] ECR I-2719 ‘Place of the harmful event’ is both the place where damage occurred and the place giving rise to it Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV [1998] ECR I-6511 If uncertain of the place of damage then the place of delivery will have jurisdiction Gabriel v Schlank & Schick GmbH [2002] ECR I-6367 Where damage is done to a consumer then the court of the consumer’s domicile shall have jurisdiction Verein für Konsumenteninformation v Henkel [2002] ECR I-8111 If there is no contract and the person is not a consumer then the court of the delict has jurisdiction Danmarks Rederiforening v LO Landsorganisationen i Sverige [2004] ECR I-1417 Strike in a MS affecting ship registered in another allowed jurisdiction in place of ship’s registration Kronhofer v Maier [2004] ECR I-6009 Lex loci delicti could not be the place where assets were lost by the person’s bank *Davenport v Corinthian Motor Policies at Lloyds 1991 SLT 774 An attempt to enforce court award was not a matter of delict Lex loci actus Brussels I bis Art 7(5) Matters of disputes relating to agency in the court of the place of the agency De Bloos v Bouyer [1976] ECR 1497 It is for the law applicable to the contract to determine if there is an obligation Etablissements Somafer SA v Saar-Fergus AG [1978] ECR 2183

24 of 39 The applicable law must be interpreted by the applicable court in light of Art 5(5) of the Convention Blanckaert and Willems PVBA v Trost [1981] ECR 819 Independent commercial agent who merely negotiates is not a branch, agency or other establishment *Sar Schotte GmbH v Parfums Rothschild Sarl [1987] ECR 4905 Art 5(5) applied where a company did not have a branch but pursued its activities in another MS Lloyd’s Register of Shipping v Societe Campenon Bernard [1995] ECR I-961 ‘Operations of a branch’ does not presuppose the undertakings are performed where the branch is *Courtaulds Clothing Brands Ltd v Knowles 1989 SLT (Sh Ct) 84 ‘Other establishment’ cannot be personal home as it must have the same character of a business Lex causae Brussels I bis Art 8(1) Matters whereby multiple defenders exist and the claim is most closely related to one of them *Kalfelis v Bankhaus, Schroder, Munchmeyer, Hengst and Co [1988] ECR 5565 For Art 6(1) to apply there must be links between actions by the plaintiff against different defendants Réunion Européenne SA v Spliethoff’s Bevrachtingskantoor BV [1998] ECR I-6511 The place the goods were to be delivered and not the final delivery is the lex causae Roche Nederland BV v Primus [2006] ECR I-6535 EU patents lack sufficient connection for joint action as they are governed by the law of MS of patent Freeport Plc v Arnoldsson [2007] ECR I-8319 Actions against a party may be brought in a co-defendant's MS if the actions are closely connected *MacDonald v FIFA 1999 SLT 1129 Actions against SFA and FIFA were sufficiently linked to be determined together Lex loci arbitri Brussels I bis Art 8(3) Counterclaims arising from the same facts and court in which the original claim is still pending Lex situs Brussels I bis Art 8(4) Combined actions in matters relating to in rem in immovable property where the property is situated Protective jurisdiction: Insurance, consumer, and employment contracts Brussels I bis Art 10-16 Provisions relating to jurisdiction in matters relating to insurance Brussels I bis Art 15 Places restrictions on parties agreeing on jurisdiction instead of these rules Societé Financière et Industriellle du Peloux v AXA Belgium [2006] QB 251 Art 10: insurer's can sue in the insured’s domicile, Art 11: insurer's can sue in the defender’s domicile *GIE Réunion Européenne v Zurich España [2005] ECR I-4509 Insurers do not require the added protection afforded to consumer contracts Brussels I bis Art 17-19 Provisions relating to consumer contracts *Shearson Lehmann Hutton Inc v TVB etc GmbH [1993] ECR I-139 Actions are to be taken in the courts of the private consumer’s domicile to protect them Brenner v Dean Witter Reynolds Inc [1994] ECR I-4275 Courts of the consumer's domicile have jurisdiction if the contracting party has a branch there Benincasa v Dentalkit Srl [1997] ECR I-3767 Party contracting for a profession is not a consumer and is bound by contractual jurisdiction clauses

25 of 39 Mietz v Intership Yachting Sneek BV [1999] ECR I-2277 It is for the national court to determine if a contract was for sale of goods or supply of services Assitalia SpA v Frahuil SA [2004] ECR I-1543 Art 5(1) did not apply where there was an assumption of obligation by one party to another Verein für Konsumensteninformation v Henkel [2002] ECR I-8111 Action brought by consumer rights group against unfair terms of a trader was delict and not contract Gabriel v Schlank & Schick GmbH [2002] ECR I-6367 Mail order offer was a consumer contract upon the requested performance by the consumer *Gruber v BayWa AG [2005] ECR I-439 The commercial purpose must be negligible compared to the use of the good to determine if consumer Engler v Janus Versand GmbH [2005] ECR I-481 Mail order offer to an individual was a consumer contract in accordance with Art 5(1) Waverly Asset Management v Saha 1989 SLT (Sh Ct) 87 Agreed term of performance in Edinburgh meant the Scottish courts had jurisdiction *Chris Hart (Business Sales) Ltd v Niven 1992 SLT (Sh Ct) 53 As the defenders trade was not what they had been contracted it was deemed to be consumer *BJ Mann (Advertising) Ltd v Ace Welding & Fabrications 1994 SCLR 763 Weaker Ltd company contracting to work outwith their normal scope held a consumer contract *Prostar Management Ltd v Twaddle 2003 SLT (Sh Ct) 11 A footballer's contract was not outwith his 'trade' and was not a consumer contract *Semple Fraser WS v Quayle 2002 SLT (Sh Ct) 33 Test of whether purpose of contract was personal and whether business interests had been conveyed Brussels I bis Art 20-23 Provisions relating to protections to contracts of employment Exclusive jurisdiction, regardless of domicile Brussels I bis Art 24 Provisions relating to when courts have jurisdiction irrespective of the domicile of the defender Brussels I bis Art 24(1) Provision that the court where the property is situated has jurisdiction (lex loci situs) Sanders v van der Putte [1977] ECR 2383 Tenancies of immovable property do not include agreements to rent under a usufructuary lease Reichert v Dresdner Bank [1990] ECR I-27 Art 24 only applies to in rem immovable property rights and not personal rights *Webb v Webb [1994] ECR I-1717 Father stating his son as the owner in a trust regarded a right in personam rather than a right in rem Lieber v Gobel [1994] ECR I-2535 Where parties were not landlord and tenant there was no available claim under Art 16(1) Dansommer A/S v Gotz [2000] ECR I-393 Art 16(1)(a) applied where damage from lack of proper care whilst rented ocurred Gaillard v Chekili [2001] ECR I-2771 Recission of contract of sale of land is an action in personam and the case could be heard in Belgium Klein v Rhodos Management Ltd [2005] ECR I-8667 A timeshare in various properties were not rights in rem but a membership with rights in personam Land Oberösterreich v CEZ [2006] ECR I-4557 Actions for ‘nuisance’ from radioactive station were not covered by Art 16(1)(a)

26 of 39 Rösler v Rottwinkel [1985] ECR 99 Tenancy contracts and actions for damage are to be dealt with by the lex situs Hacker v Euro-Relais GmbH [1992] ECR I-1111 Travel agent arranging accommodation for a client did not amount to a tenancy agreement Ferguson’s Trustee v Ferguson 1990 SLT (Sh Ct) 73 Asserting a right in rem for property in Spain was not possible in Scotland *Barratt International Resorts Ltd v Martin 1994 SLT 434 Rights in personam to manage a property was not a matter for Art 16(1) Brussels I bis Art 24(2) The nullity or the dissolution of companies will be in the courts where the company had its seat Hassett v South Eastern Health Board [2008] ECR I-7403 Courts of the company’s seat have jurisdiction as they are better placed to consider an action Berliner Verkehrsbetriebe (BVG) v JP Morgan Chase Bank NA [2011] 1 WLR 2087 General rule that the courts of the defendant’s domicile were to have jurisdiction Brussels I bis Art 24(4) The court of the place where the patent or trademark is registered will have jurisdiction *Duijnstee v Goderbauer [1983] ECR 3663 Validity of the patents was not in question therefore Dutch courts could have jurisdiciton Brussels I bis Art 22(5) The court of the place in which enforcement is to be made will have jurisdiction AS-Autoteile Service v Malhe [1985] ECR 2267 German company seeking to enforce payment could do so in the courts of the defendant’s domicile Reichert and Kockler v Dresdner Bank [1992] ECR I-2149 French court had jurisdiction in a case where creditors were pursuing payment from property owners Prorogation of jurisdiction Brussels I bis Art 25 Provision relating to parties agreeing which court will have jurisdiction *Meeth v Glacetal Sarl [1978] ECR 2133 Multiple courts may have jurisdiction where contracted into Sanicentral GmbH v Collin [1979] ECR 3423 Forum clauses in employment contracts are valid Anterist v Crédit Lyonnais [1986] ERC 1951 Forum clause giving benefit to one party was not enough to show the other party intended that benefit *Powell Duffryn Plc v Petereit [1992] ECR I-1745 Forum clauses in the statutes of a company limited by shares confer jurisdiction on a particular court *Mainschiffahrts-Genossenschaft eG (MSG) v Les Gravières Rhénames Sàrl [1997] ECR I-911 Lack of reaction to written forum clause and subsequent payment made the forum clause valid Soc Transporti Castelletti Spedizioni Internatazionali SpA v Hugo Trumpy SpA [1997] ECR I-1597 Forum clauses typical to an industry are presumed to be consented to Benincasa v Dentalkit Srl [1997] ECR I-3767 Forum clauses relating to part of a contract cannot be overcome by an action of the whole contract Coreck Maritime GmbH v Handersveem BV [2000] ECR I-9337 Forum clauses need not be explicit so long as they set out the criteria for choosing the forum Erich Gasser GmbH v Misat srl [2003] ECR I-14693 National courts can refer to the CJEU if it is certain a question of jurisdiction needs answered

27 of 39 Brussels I bis Art 25 Provision relating to requirements as to the form of the agreement which prorogates jurisdiction *Barratt International Resprots Ltd v Martin 1994 SLT 434 Provisions in timeshare contract regarding prorogating jurisdiction were valid and enforceable *Compagnie Commercial Andre SA v Artibell Shipping Co Ltd (No 1) 1999 SLT 1051 Prorogation to a foreign court may make it open for a Scottish court to dismiss an action *McGowan v Summit at Lloyds 2002 SLT 1258 Prorogation in contract of insurance was overturned after ‘contractual interpretation’ Conflicts of jurisdiction: lis (alibi) pendens Brussels I bis Art 29-34 Provisions relating to the situation where the courts of two different states may have jurisdiction *Gubisch Maschinenfabrik AG v Palumbo [1987] ECR 4861 Lis pendens includes simultaneous actions of recision and enforcement relating to the same cause *Owners of Cargo Lately on Board the Tatry v Owners of the Maciej Rataj [1994] ECR I-5439 Lis pendens operates to prevent broadly the same actions being in multiple jurisdictions *Drouot Assurances SA v Consolidated Metallurgical Industries (CMI Industrial Sites) [1998] ECR I-3075 Lis pendens does not operate where different parties with different interests seek damages *Erich Gasser GmbH v Misat srl [2003] ECR I-14693 Dispute going to Italy before the lis pendens prevented the case going to Austria Brussels I bis Art 31(2-4) Ensures that the lis pendens provisions can't be used to defeat exclusive jurisdiction *William Grant & Sons International Ltd v Marie-Brizard et Roger International SA 1996 SCLR 987 Lis pendens is independent of concepts of national legal systems and does not require identicalness Marodi Service de D Mialich v Mikkal Myklebusthaug Rederi A/S 2002 SLT 1013 Once litigation has begun it would require something extraordinary for another court to be chosen Brussels I bis Art 33-34 Provisions granting MS courts discretion to stay proceedings where a non-MS court is seised Inter UK jurisdiction Civil Jurisdiction and Judgements Act 1982 Sch 4 Applies where the subject-matter of the action is within Brussels I and the defender is UK domiciled Civil Jurisdiction and Judgements Act 1982 s 17; Sch 5 Provision relating to matters excluded from the scope of Sch 4 Civil Jurisdiction and Judgements Act 1982 Rules 1(2) Where a person is domiciled in a ‘part’ of the UK action against them must be raised in that part Scottish rules of jurisdiction Civil Jurisdiction and Judgements Act 1982 Sch 8 Applies where the defender is domiciled in Scotland or a non-EU/Legano Convention state Civil Jurisdiction and Judgements Act 1982 s 20(5) Courts are to have regard to ECJ decisions and to the ‘official’ reports Forum non conveniens Definition Forum non conveniens is a plea raised by a defender that a court should decline its jurisdiction Brussels I bis Art 24 The plea cannot be made where Brussels I or Lugano Convention is applicable *Owusu v Jackson [2005] ECR I-1383

28 of 39 An English court could not decline forum once a French court ruled it had jurisdiction Civil Jurisdiction and Judgements Act 1982 s 49 The plea of forum non conveniens may be used in respect of inter-UK jurisdiciton *Lennon v Scottish Daily Record and Sunday Mail Ltd [2004] EWHC 359 (QB) As the papers had 1,000s of readers in England the English courts were more appropriate Sim v Robinow (1892) 19 R 665 Non conveniens will not be sustained unless the court is satisfied that another court is better placed *Société du Gaz de Paris v Armateurs Français 1926 SC (HL) 13 Where the material substance of an action was French it was more appropriate for a French court Argyllshire Weavers Ltd v A Macaulay (Tweeds) Ltd (No 1) 1962 SC 388 Suitability of a forum must be concluded in light of all surrounding circumstances Credit Chemique v James Scott Engineering Group Ltd 1979 SC 406 Domicile, substance of guarantee in French contract, et al all led to decision of forum non conveniens Sokha v Secretary of State for the Home Department 1992 SLT 1049 Choice of forum would be overcome if a party could show another was far more appropriate Morison v Panic Ltd 1993 SLT 602 Exclusion of jurisdiction must be express and forum non conveniens must be averred MacShannon v Rockware Glass Ltd [1978] AC 795 Exclusion of jurisdiction must be express and forum non conveniens must be averred The Las Mercedes v The Abidin Daver [1984] AC 398 Second action in England would only be justified if shown that the plaintiff would advantage from it *Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 Advances in bringing an English action is relevant when deciding if a case is forum non conveniens OBLIGATIONS VOLUNTARY OBLIGATIONS Unilateral obligations Engler v Janus Versand GmbH [2005] ECR I-481 ‘Award of a prize’ from one MS gave jurisdiction to the MS of the pursuer’s place of domicile This area of the law is not covered by the Rome II Regulation on non-contractual obligations n.b., unilateral obligations would not be characterised as contractual Contract Three sets of rules: i: Common law Contractual obligations are governed by the ‘proper law’. i.e., the agreed system of law n.b., doesn’t apply to contracts under EU instruments ii: Rome Convention on the Law Applicable to Contractual Obligations (1980) Applies to contracts between the 1st April 1991 and 17 December 2009 iii: Rome I Regulation Applies to contracts concluded on or after 17th December 2009 n.b., EU instruments use the expression ‘applicable law’ rather than ‘proper law’ Rome I Regulation General matters i: The Regulations provisions apply to conflicts between the laws of the different countries in the UK SSI 2009/410 ii: It has ‘universal’ or world-wide application

29 of 39 Rome I Regulation Art 1 iii: Renvoi is excluded Rome I Regulation Art 20 iv: There was an ‘official report’ on the Rome Convention Giuliano-Lagarde Report OJ 1980 C282/1 Subject-matter scope of Art 1 i: The Regulation deals with choice of law in relation to contractual obligations in civil and commercial matters It does not apply to revenue, customs, or administrative matters ii: Characterisation of ‘contractual’ iii: Various obligations or issues are specifically excluded including: Status or legal capacity Succession or matrimonial property or maintenance Negotiable instruments Arbitration Matters relating to corporations Principal-agency matters Trusts Various insurance contracts Dealings prior to conclusion of contract Applicable law chosen by parties as per Art 3 i: There is a basic principle of freedom to choose the applicable law either expressly or implied Ferguson Shipbuilders Ltd v Voith Hydro GmbH & Co and Others 2000 SLT 229 Implied choice of law being Scotland was enforced as the substantive issue was closely connected ii: Factors inferring implied choice Egon Oldendorff v Libera Corporation [1996] Lloyd’s Rep 380 Choice of forum being England implied that English law was to apply to the contract Base Metal Trading Ltd v Shamurin [2004] ILPr 5 Substance of a fraud was Russian and the cause was governed by Russian law implied jurisdiction iii: The parties can select the law applicable to the whole or a part of the contract Shamil Bank of Bahrain v Beximco Pharmaceuticals Ltd (No 1) [2004] 1 WLR 1784 Clause of Sharia and English law governance led to English as it would allow the contract’s purpose iv: The parties may agree to subject the contract to a law other than that which previously governed it Applicable law in the absence of choice by the parties by Art 4 Rome I Regulation Art 4(1) Provisions relating to rules to find the applicable law and particular types of contract Rome I Regulation Art 4(2) Provisions relating to other types or mixed contracts based on the performer’s habitual residence Ark Therapeutics Plc v True North Capital Ltd [2006] 1 All ER (Comm) 138 English law was applicable when English company’s unilateral obligation to pay fee to New York firm Ophthalmic Innovations International (UK) v Ophthalmic Innovations International Inc [2005] ILPr 10 Inadequate disclosure of reasonable prospect of success from a US court meant English law applied *Apple Corps Ltd v Apple Computer Inc [2004] ILPr 34 Characteristic performance rule couldn’t apply so the closeness of connection decided jurisdiction Rome I Regulation Art 4(3) The law of the country where the contract is manifestly more closely connected will apply

30 of 39 Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV [2009] ECR I-9687 Carriage contract of goods is governed by the law where the carrier’s principal place of business Bank of Baroda v Vysya Bank Ltd [1994] 2 Lloyd’s Rep 87 English court had jurisdiction where the contract’s focus was on an Irish company’s London office *Definitely Maybe (Touring) Ltd v Marek Leiberberg Konzentagentun [2001] 1 WLR 1745 English law was not the applicable law as the contract was more closely connected to Germany *Kenburn Waste Management Ltd v Bergmann [2002] ILPr 33 Obligation not to contract certain persons gives the country of their residence jurisdiction *Caledonia Subsea Ltd v Micoperi Srl 2002 SLT 1022 Jurisdiction of lex loci solitionis to be preferred unless clear factors in favour of another jurisdiction Rome I Regulation Art 4(4) Alternative provision when Art 4(2) and Art 4(3) do not apply Specific contracts Rome I Regulation Art 5 Provisions relating to contracts of carriage Rome I Regulation Art 6 Provisions relating to contracts of consumers Rome I Regulation Art 7 Provisions relating to contracts of insurance Rome I Regulation Art 8 Provisions relating to contracts of employment Mandatory provisions Rome I Regulation Art 3(3) The case may be heard in the court more closely connected despite a prior agreement of jurisdiction Caterpillar Financial Services Corporation v SNC Passion [2004] 2 Lloyd’s Rep 99 Choice of English law in loan did not amount to a derogation of French law and was enforceable Rome I Regulation Art 9 Mandatory provisions may be overridden if crucial for safeguarding public interests Unfair Contract Terms Act 1977 s 27 Unfair Contract Terms Act 1977 § 2-7; 16-21 do not apply if there has been a choice of law clause Brodin v A/R Seljan 1973 SC 213 Lex loci delicti applied and overrode contrary provisions in the contract of employment Particular aspects of contracts McFeetridge v Stewarts & Lloyds Ltd 1913 SC 773 Capacity is not governed by the regulation (?) Rome I Regulation Art 13 Provisions relating to invoking incapacity from another country Rome I Regulation Art 10(1) The validity of a contract is determined by the law that would govern it if the contract was valid Rome I Regulation Art 10(2) The validity of a contract is determined by the law of the non-consenting person’s habitual residence Egon Oldendorff v Libera Corporation [1995] 2 Lloyd’s Rep 64 Choice of forum being England implied that English law was to apply to the contract ‘The Hornbay’ [2006] 2 Lloyd’s Rep 44 The party seeking forum non coneveniens must aver that another court is closer to the issue

31 of 39 Rome I Regulation Art 11 Provisions relating to formal validity Rome I Regulation Art 12 Provisions relating to ‘other matters’ governed by the applicable law OBLIGATIONS IMPOSED BY LAW DELICT There are three sets of rules in delict: i: Common law ii:Private International Law (Miscellaneous Provisions) Act 1995 iii: Rome II Regulation Common law Double actionability Delictual matters are governed by both the lex loci delicti and Scots law as lex fori *McElroy v McAllister 1949 SC 110 Lex loci delicti prevented Scottish jurisdiction and English law does not recognise solatium Liverpool, Brazil and River Plate Steam Navigation Co Ltd v Benham (The Halley) (1867-69) LR 2 PC 193 Lex loci delicti did not recognise the delict and the lex fori would not allow a foreign action of delict *Philips v Eyre (1870-71) LR 6 QB 1 An action is only pursuable in the lex fori if it is unjustifiable in the lex loci delicti *Boys v Chaplin [1971] AC 356 If a delict committed abroad is actionable in England then it also determines the damages recoverable The common law still applies to: i: actions relating to acts or omissions occurring before 1st May 1996; and ii: delictual topics not covered by those other provisions Private International Law (Miscellaneous Provisions) Act 1995 Private International Law (Miscellaneous Provisions) Act 1995 s 11 Replaces double delict with a general lex loci delicti rule for personal injury and property damage Private International Law (Miscellaneous Provisions) Act 1995 s 12 Allows lex loci delicti to be displaced if another court is substantially more appropriate Private International Law (Miscellaneous Provisions) Act 1995 s 13 The legislation does not apply to actions of defamation Rome II Regulation The Regulation applies in respect of events occurring after 11 January 2009 Homawoo v GMF Assurance SA [2012] ILPr 2 A national court only has to apply the Regulation to events occurring after January 11th 2009 General matters Rome II Regulation applies to conflicts between the laws of the different countries in the UK SSI 2008/404 Rome II Regulation Art 3 The Regulation has ‘universal’ or world-wide application Rome II Regulation Art 24 Renvoi is excluded Rome II Regulation Art 2 The Regulation applies to non-contractual obligations, events, and damage that are likely to occur Scope of the subject matter as per Art 1

32 of 39 Art 1 applies to choice of law in relation to non-contractual obligations in civil and commercial matters n.b., Art 1 does not apply to revenue, customs, State delicts, or administrative matters Rome II Regulation Art 1(2) Provision relating to various non-contractual obligations or issues specifically excluded Applicable law as per Art 4 General rule that delicts will be pursued in the place of the damage as per lex loci delicti n.b., Otherwise the court with the closest connection or the place in which both parties have domicile Boys v Chaplin [1971] AC 356 Delicts committed abroad that are actionable in England are recovered according to English law Specific delictual situations Rome II Regulation Art 5-9 Provisions modifying general rules of Art 4 Rome II Regulation Art 5(1) Exceptions to Art 4(2) allowing alternative choice of law rules regarding damage caused by products Rome II Regulation Art 5(2) Where the delict is manifestly more closely connected with another country then their laws shall apply n.b., this is similar to the Art 4(3) ‘escape clause’ Rome II Regulation Art 6 Delict from unfair competition shall fall upon the place of its effect or the court first seised Rome II Regulation Art 7 Environmental damage will fall upon the lex loci delicti or the place of the causing event Rome II Regulation Art 8 Infringement on intellectual property shall be pursued in the place where the property is registered Rome II Regulation Art 9 Delict from industrial action shall be pursued in the place of the industrial action Mandatory provisions as per Art 16 and public policy as per Art 26 of the forum Rome II Regulation Art 16 Nothing in the Regulation restricts the rules of the law of the forum if they are mandatory Rome II Regulation Art 26 The law specified by this Regulation can only be refused if manifestly incompatible with public policy Kuwait Airways Corporation v Iraqi Airways Co (No 6) [2002] 2 AC 883 Illegal annexation of Kuwait by Iraq meant KAC could be awarded damages for removal of planes Choosing the applicable law as per Art 14 Rome II Regulation Art 14(1) Parties may agree to the law of choice of the non-contractual obligation prior to or after the damage Scope of the applicable law as per Art 15 Rome II Regulation Art 15(a) Applicable law governs basis and extent of liability including who may be held liable Rome II Regulation Art 15(b) Applicable law governs grounds for exemption from liability, and limitation or division of liability Rome II Regulation Art 15(c) Applicable law governs if the damage exists and the nature and assessment of the damage Jacobs v Motor Insurers’ Bureau [2010] 1 All ER (Comm) 1128 Courts should take into account all circumstances and expenses of the specific victim Rome II Regulation Art 15(d)

33 of 39 Applicable law, within its procedural law, governs measures to prevent or terminate injury Rome II Regulation Art 15(e) Applicable law governs whether a right to claim damages or remedies may be transferred Rome II Regulation Art 15(f) Applicable law governs what persons are entitled to compensation for damage sustained personally Rome II Regulation Art 15(g) Applicable law governs liability for acts of a third party Rome II Regulation Art 15(h) Applicable law governs the manner that an obligation may be extinguished and rules of limitation Unjustified enrichment and negotiorum gestio Most of the general provisions relating to delict apply to these areas of the law i.e., everything other than Art 4-9 Unjust enrichment as per Art 10 Rome II Regulation Art 10(1) The place of most connection to any relationship will govern non-contractual unjustified enrichment Rome II Regulation Art 10(2) If applicable law cannot be determined by Art 10(1) then the place of the parties’ shared residence Rome II Regulation Art 10(3) If applicable law cannot be determined by Art 10(1-2) then the place of the unjust enrichment Rome II Regulation Art 10(4) If another law is manifestly more closely connected than by Art 10(1-3) then the law of that place Negotiorum gestio as per Art 11 Rome II Regulation Art 11(1) Acts performed without authority will be governed by the relationship between the parties Rome II Regulation Art 11(2) If applicable law cannot be determined by Art 11(1) then the place of the parties’ shared residence Rome II Regulation Art 11(3) If applicable law cannot be determined by Art 11(1-2) then the place of the negotiorum gestio Rome II Regulation Art 11(4) If another law is manifestly more closely connected than by Art 11(1-3) then the law of that place PROPERTY AND SUCCESSION PROPERTY Distinction between moveable and immoveable property Internal law classification Property may be moveable and heritable, or moveable and immoveable under IPL rules Re Hoyles [1911] 1 Ch 179 The gift of immoveable mortgage over land on death was void International private law classification Determined by the lex situs’ IPL rules Macdonald v Macdonald’s Executrix 1932 SC (HL) 79 Land that was immoveable in Canada was regulated by Canadian succession law Immoveable property Jurisdiction Brussels I Regulation Art 22(1) The lex situs will have exclusive jurisdiction regardless of domicile

34 of 39 Choice of law Fundamental principle that all matters regarding immoveable property is governed by the lex situs n.b., differences between contractual and property aspects of transfers regarding land etc Capacity in general Ogilvy v Ogilvy’s Trustees 1927 SLT 83 Child nor his guardian father had capacity to discharge trustee’s and gain the estate Black v Black’s Trustees 1950 SLT (Notes) 32 Capacity is determined by lex situs for heritage or the law of the truster’s domicile Bank of Africa Ltd v Cohen [1909] 2 Ch 129 Capacity of a person to enter into a contract relating to immoveables is governed by the lex situs Capacity of of foreign trustees Trusts (Scotland) Act 1921 s 4 Provision relating to the general powers of trustees Allan’s Trustees (1897) 24 R 238 Court order required if an English will did not confer express power of sale of land in Scotland Pender’s Trustees (1903) 5 F 504 Upheld Allan’s Trustees in granting sale of land in Scotland from an English will Harris’s Trustees, Petitioners 1919 SC 432 Upheld Allan’s Trustees in granting sale of land in Scotland from an English will Prudential Assurance Co Ltd, Petitioners 1952 SC 70 Order refused where trustees had already ‘unknowingly’ sold Scottish land of an English will Formalities Contractual aspects are governed by the applicable law or another legal system connected to the contract Rome I Regulation Art 11 Contracts are formally valid if they satisfy the formal requirements of the law governing its substance Rome I Regulation Art 11(5) Contracts of right in rem in immoveable property are subject to the lex situs if non-derogable Hamilton v Wakefield 1993 SLT (Sh Ct) 30 Important to distinguish personal right (offer) and right in rem in immoveable property (conveyance) Adams v Clutterbuck (1883) 10 QBD 403 All deeds of title must comply with the lex situs regarding form and essentials Essential validity Carse v Coppen 1952 SC 233 ? Moveable property Distinction between universal transfers, e.g, succession or insolvency, and special transfers, e.g., sale or gift Corporeal moveables Former rule Former rule that transfers of moveable property was subject to the law of domicile of the owner Mobila sequntur personam Bank voor Handel en Scheepvaart NV v Slatford (No 2) [1953] 1 QB 248 Lex situs has final say over title to corporeal moveables and propriety rights in respect thereof Contractual and property governing laws Different governing laws for: i: contractual; and

35 of 39 Personal rights determined according to appropriate law of mode of transfer ii: property aspects of transfer of moveables Proprietary (real) rights determined by the lex situs *North Western Bank Ltd v Poynter, Son, & Macdonald (1894) 22 R (HL) 1 If each claim is under the same legal system then that system of laws will be applied by the lex fori *Inglis v Robertson & Baxter (1898) 25 R (HL) 70 Competition for whisky in Scotland fell to be determined by Scots law as transfer was incomplete Extent of real rights Valid transfer by the lex situs then it confers real rights that remain good Transfer remains good even if goods are then moved elsewhere until transferred under new lex situs *Todd v Armour (1882) 9 R 901 Pursuer could not show sale in open market was formally defective and so the horse was not stolen *Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496 A number of English connecting factors cannot overrule the lex situs which was wholly binding Problems of securities over moveables Mitchell v Burnet and Mouat (1746) Mor 4468 Extinguishing securities over moveables was a matter for the lex fori Reservation of title clauses Deutz Engines Ltd v Terex Ltd 1984 SLT 273 Clause that title does not pass until payment made was a security without possession and rejected *Hammer and Sohne v HWT Realisations Ltd 1985 SLT (Sh Ct) 21 Lex situs determined that corporeal moveables transferred in security are invalid without possession Incorporeal moveable property Nature of incorporeal moveables Usually debts but with a variety of circumstances of the origin of the debt Key distinction between property and contractual issues Distinctions in contractual issues: i: matters governed by the original contract between debtor and creditor; and ii: matters relating to the assignation, between the assignor and assignee Matters arising from the original source of debt Rome I Regulation Art 14(2) Validity and assignability of debt is determined by the law governing the creation of debt Grant’s Trustees v Ritchie’s Executor (1886) 13 R 646 Prenuptial under English law giving husband all money and debts enforceable in Scotland *Pender v Commercial Bank of Scotland Ltd 1940 SLT 306 Assignability of an insurance policy is governed by the law of the right Questions relating to assignation Rome I Regulation Art 14(1) The essential validity of assignation is determined by its own applicable law *Republica de Guatemala v Nunez [1927] 1 KB 669 Gift of money in London from and to Guatemalans was invalid according to the law of Guatemala Property rights governed by lex situs Joint Administrators of Rangers FC, Noters 2012 SLT 599 Rights that a company had in Ibrox to sell tickets was purely personal and not property in Scots law SUCCESSION

36 of 39 Administration Nature of administration Confirmation and probate; necessity to allow dealing with assets in place of situs Jurisdiction to confirmation in Scotland Clements v Macaulay (1866) 4 M 583 Situs of assets of deceased has jurisdiction, not the place of domicile Reciprocal recognition of UK grants of probate Administration of Estates Act 1971 § 1-3 Deceased must hae died domiciled in the relevant part of the UK where probate is granted Foreign succession Marchioness of Hastings v Executors of M Hastings (1852) 14 D 489 Selection of an executor is for the law of the deceased’s domicile at the date of death Powers and duties of executors i: Collecting the deceased’s assets Re Scott (No 2)[1916] 2 Ch 268 The executor derives his power and title, not from the probate, but from the will Preston v Melville (1841) 2 Rob App 8 Trustees were entitled to a conveyance of the whole land of the trust disposition ii: Paying inheritance tax, ordinary debts, and funeral expenses *Scottish National Orchestra Society Ltd v Thomson’s Executor 1969 SLT 325 Swedish executors payment of ‘legacies’ was allowed to allow the inheritance to be released iii: Satisfying prior rights and legal rights Train v Train (1899) 2 F 146 Existence, nature, and extent of legal rights in respect of immoveable property determined by lex situs Macdonald v Macdonald 1932 SC (HL) 79 Legal rights over moveable property governed by the law of domicile of the deceased at date of death iv: Paying legacies v: Distributing residue to those entitled to it vi: Accounting for intromissions Choice of law Administrative matters Determined by the lex fori Succession matters Determined by lex successionis n.b., classification of administration or succession is for the lex fori *Scottish National Orchestra Society Ltd v Thomson’s Executor 1969 SLT 325 Any taxes due on an estate may be paid to enable the will to be affected The scission principle Scission principle: i: Issues relating to succession of immoveables are governed by the lex situs ii: Issues relating to succession of moveables are governed by the law of the deceased’s domicile Regulation on Succession ((EU) No 650/2012) Applies the law of the deceased’s habitual residence but this is not enacted in UK legislation Intestate succession Immoveable property

37 of 39 Fenton v Livingstone (1859) 3 Macq 497 All succession questions are governed by the lex situs Moveable property Brown v Brown (1744) Mor 4604 All succession questions are governed by the law of the deceased’s domicile at date of death Bruce v Bruce (1790) 3 Paton 163 Intestate succession to moveable estate is governed by law of the deceased’s domicile at time of death Caduciary rights Claims made by State where no relatives or heirs exist Goold Stuart’s Trustees v McPhail 1947 SLT 221 If foreign claim is bona vacantia then the foreign (non-situs) government claim will be refused *In Re Maldonado [1954] P 223 State of deceased’s domicile may elect itself as heir of property owned in another State Testate succession Capacity to make a will Moveable property is determined by law of domicile and immoveable property by lex situs *Boe v Anderson (1862) 24 D 732 Under US law the will could not be enforced as it was to a town and not to a municipal corporation In the Estate of Fuld, Deceased (No 3) [1958] P 675 Domicile determined as being on the date of making a will Formal validity of wills Wills Act 1963 s 1 A will is properly executed if its execution conforms to the internal law of the place of execution Wills Act 1963 s 2 Provision relating to when wills will be treated as properly executed Essential validity Essentially validity of a provision in a will is determined by: i: the lex situs in respect of immoveable property; and ii: the law of the testator’s domicile at the time of his death in respect of moveable property Ommanney v Bingham (1796) 3 Pat 448 Essential validity of conditions may be effected by bequests to marriage or religion Pruvis’ Trustees v Pruvis’ Executors (1861) 23 D 812 The testamentary writings executed in India were, if valid by lex loci actus, effectual *Boe v Anderson (1862) 24 D 732 Essential validity of conditions may be effected by bequests for religious or charitable purposes Irving v Snow 1956 SC 257 As a will was validly executed according English law it was admitted to confirmation in Scotland Construction of wills Construction is determined by the legal system the testator intended to apply to matters of construction In absence of any such intention, it is presumed that: i: moveable property is to be construed according to the law of the testator’s domicile ii: immoveable property is to be construed according to the lex situs *Mitchell & Baxter v Davies (1875) 3 R 208 Presumption of intention to interpret will by law of domicile may be overcome with evidence Ferguson v Marjoribanks (1853) 15 D 637

38 of 39 Residue of Jamaican estate to be used by Scottish trustees to build school was governed by Scots law Philipson-Stow v IRC [1961] AC 727 South African land was to be determined by the lex situs Wills Act 1963 s 4 Construction shall not be altered by reason of any change in the testator’s domicile after execution Revocation of wills The effect of any act revoking a will is to determined according to the law of the testator’s domicile Westerman’s Executor v Schwab (1905) 8 F 132 Wills in moveable property are not revoked by subsequent marriages as that is a family law issue *Re Martin [1900] P 211 Domicile of French woman living in England until death was English and English law applied Sawrey Cookson v Sawrey Cookson’s Trustees (1905) 8 F 157 Right to revoke right in property given in Scots law after marriage as domicile had changed

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