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International Private Law Lecture Notes

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International Private Law Lecture Notes 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]
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