Principles of Conflict of Laws Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES Professor Paul Dobson Visiting Professor at Anglia Polytechnic University Professor Nigel Gravells Professor of English Law, Nottingham University Professor Phillip Kenny Professor and Head of the Law School, Northumbria University Professor Richard Kidner Professor and Head of the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. Principles of Conflict of Laws Abla J Mayss, LLM, PhD, Licence en Droît Lecturer in Law University of Liverpool Cavendish Publishing Limited London • Sydney First published in Great Britain 1994 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0) 171 278 8000 Facsimile: +44 (0) 171 278 8080 e-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com This title was previously published under the Lecture Notes series. © Mayss, A 1999 First edition 1994 Second edition 1996 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. Mayss, Abla J Principles of conflict of laws—3rd ed—(Principles of law series) 1. Conflict of laws I. Title 340.9 1 85941 460 5 Printed and bound in Great Britain PREFACE The law in the field of conflict of laws is constantly developing and changing. Since the second edition of this book, a number of important changes, both in terms of courts’ decisions and statutory provisions, have taken place. The object of the present edition of this book is twofold: first, to take account of, and incorporate, these changes; and, secondly, to re-arrange a number of chapters in an attempt to make a notoriously difficult area of law more reader friendly. Thus, Chapters 2 and 3, both of which deal with the jurisdiction of the English court in civil and commercial matters, have been re-written to the effect that Chapter 2 now deals solely with the common law rules and Chapter 3 examines the rules under the Brussels and Lugano Conventions. Chapter 6, entitled ‘Choice of Law in Tort’, has been largely revised to discuss those common law rules which remain applicable to the tort of defamation, and now deals more fully with Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Chapters 10 and 11 on Family Law have been greatly amended to take account of the changes brought about by the Family Law Act 1996 and to make this complicated area of law easier to read and understand. The remaining chapters have been revised and amended to take due consideration of new developments in the context of both the common law and various recent statutory provisions. I am grateful to my colleagues in the Faculty of Law at the University of Liverpool for sparing me the time to discuss a number of issues with them, and to the students there. I am also grateful to the editorial team at Cavendish Publishing Ltd for their patience and understanding; and to the Editorial Board, for their helpful comments on the text of this book. I have tried to state the law as it stood on 15 September 1998, although it has been possible to include some later developments. Abla Mayss University of Liverpool December 1998 v CONTENTS Preface v Table of Appendices xvii Table of Cases xix Table of UK Legislation xxxiii Table of European Legislation xxxvii Table of Other Legislation xli Table of Abbreviations xliii 1 NATURE AND SCOPE OF CONFLICT OF LAWS 1 1.1 INTRODUCTION 1 1.1.1 Jurisdiction 1 1.1.2 Choice of law 1 1.1.3 Recognition and enforcement of judgments 1 1.2 PRELIMINARY ISSUES 2 1.2.1 Private and public international law 2 1.2.2 Connecting factors 3 1.2.3 The concept of personal law 4 1.3 THE BASES OF CONFLICT OF LAWS 4 1.3.1 Justice 4 1.3.2 Comity 5 1.3.3 Public policy 5 1.4 CLASSIFICATION OR CHARACTERISATION 6 1.4.1 Classification of the cause of action 6 1.4.2 Classification of a rule of law 7 1.5 RENVOI 8 1.5.1 Single or partial renvoi 9 1.5.2 Double or total renvoi 9 1.6 PROOF OF FOREIGN LAW 9 SUMMARY OF CHAPTER 1 11 2 JURISDICTION OF THE ENGLISH COURT IN COMMERCIAL DISPUTES: THE COMMON LAW RULES 13 2.1 INTRODUCTION 13 2.2 DEFENDANT PRESENT WITHIN THE JURISDICTION 14 2.2.1 Individuals 14 2.2.2 Corporations 14 vii Principles of Conflict of Laws 2.2.3 Partnerships 16 2.3 SUBMISSION TO THE JURISDICTION 16 2.4 DEFENDANT OUTSIDE THE JURISDICTION 16 2.4.1 General 18 2.4.2 Contract 19 2.4.3 Tort 22 2.4.4 Property 22 2.4.5 Other heads 22 2.5 PREVENTION OF FORUM SHOPPING AND THE STAYING OF ACTIONS 23 2.5.1 Forum non conveniens 24 2.5.2 The relevance of lis alibi pendens 33 2.5.3 The relevance of a foreign jurisdiction clause 34 2.6 PREVENTION OF FORUM SHOPPING AND ANTI-SUIT INJUNCTIONS 39 SUMMARY OF CHAPTER 2 45 3 JURISDICTION OF THE ENGLISH COURT IN COMMERCIAL DISPUTES: THE BRUSSELS AND LUGANO CONVENTIONS 47 3.1 INTRODUCTION AND BACKGROUND 47 3.2 INTERPRETATION OF THE CONVENTION 48 3.3 SCOPE OF THE CONVENTION 49 3.4 THE CONCEPT OF DOMICILE 51 3.4.1 Domicile of individuals 51 3.4.2 Domicile of corporations and associations 52 3.5 THE PRIMARY BASIS OF JURISDICTION 53 3.6 SPECIAL JURISDICTION 55 3.6.1 Contract 55 3.6.2 Tort 58 3.6.3 Restitutionary claims 61 3.6.4 Maintenance 63 3.6.5 Civil claims in criminal proceedings 65 3.6.6 Branch, agency or other establishment 65 3.6.7 Trusts 67 3.6.8 Salvage 67 viii Contents 3.6.9 Further alternative bases of jurisdiction 67 3.7 PROTECTIVE MEASURES 68 3.7.1 Individual contracts of employment 68 3.7.2 Jurisdiction in matters relating to insurance 70 3.7.3 Jurisdiction over consumer contracts 72 3.8 EXCLUSIVE JURISDICTION 73 3.9 JURISDICTION AGREEMENTS 74 3.10 SUBMISSION 78 3.11 LIS ALIBI PENDENS AND RELATED ACTIONS 79 3.12 JURISDICTION WITHIN THE UK: THE MODIFIED CONVENTION 82 SUMMARY OF CHAPTER 3 85 4 RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS 87 4.1 INTRODUCTION 87 4.2 RECOGNITION AND ENFORCEMENT AT COMMON LAW 88 4.2.1 Requirements for recognition and enforcement 89 4.2.2 Jurisdiction of the foreign court 90 4.2.3 Residence 91 4.2.4 Submission 92 4.3 FURTHER REQUIREMENTS FOR ENFORCEMENT 94 4.3.1 At common law 94 4.3.2 Administration of Justice Act 1920 97 4.3.3 Foreign Judgments (Reciprocal Enforcement) Act 1933 97 4.3.4 Restrictions 98 4.4 DEFENCES 98 4.4.1 Fraud 98 4.4.2 Contrary to natural justice 99 4.4.3 Contrary to public policy 100 4.4.4 Section 32 of the Civil Jurisdiction and Judgments Act 1982 100 4.4.5 Limitation of actions 102 ix Principles of Conflict of Laws 4.4.6 Res judicata 102 4.5 EC/EFTA JUDGMENTS 103 4.5.1 Mechanisms for enforcement 104 4.5.2 Defences 104 4.6 RECOGNITION AND ENFORCEMENT WITHIN THE UK 106 SUMMARY OF CHAPTER 4 107 5 CHOICE OF LAW IN CONTRACT 109 5.1 INTRODUCTION 109 5.2 THE CONTRACTS (APPLICABLE LAW) ACT 1990; THE ROME CONVENTION 1980 110 5.2.1 Scope of the Convention 110 5.2.2 Matters excluded from the ambit of the Convention 111 5.2.3 The applicable law: express and/or inferred choice of law 112 5.2.4 Applicable law in the absence of choice 115 5.3 SPECIAL RULES FOR SPECIFIC CONTRACTS 119 5.3.1 Certain consumer contracts 119 5.3.2 Individual employment contracts 120 5.4 SPECIFIC ISSUES 122 5.4.1 Material validity 122 5.4.2 Formal validity 123 5.4.3 Capacity 125 5.5 SCOPE OF THE APPLICABLE LAW UNDER THE CONVENTION 125 5.6 LIMITATIONS ON THE APPLICABLE LAW 127 5.6.1 Mandatory rules 127 5.6.2 Public policy 130 5.7 EXCLUSION OF RENVOI 130 SUMMARY OF CHAPTER 5 133 6 CHOICE OF LAW IN TORT 135 6.1 INTRODUCTION 135 x Contents 6.2 THE ENGLISH APPROACH 136 6.3 THE COMMON LAW RULES 136 6.3.1 Torts committed in England 136 6.3.2 Torts committed abroad 137 6.4 PLACE OF TORT 137 6.4.1 Defamation 138 6.4.2 Negligence 139 6.4.3 Fraudulent misrepresentation 139 6.4.4 Economic torts 140 6.5 THE DOUBLE-ACTIONABILITY RULE FOR DEFAMATION 140 6.5.1 An exception to the rule 141 6.5.2 The exception in the Red Sea case 142 6.6 SCOPE OF THE DOUBLE-ACTIONABILITY RULE 143 6.6.1 The same defendant 144 6.6.2 The same plaintiff 144 6.6.3 Contractual defences to claims in tort 145 6.7 PROBLEMS ASSOCIATED WITH THE DOUBLE-ACTIONABILITY RULE AND THE TORT OF DEFAMATION 146 6.8 PART III OF THE PRIVATE INTERNATIONAL LAW (MISCELLANEOUS PROVISIONS) ACT 1995 148 6.8.1 The new general rule 149 6.8.2 Exception to the general rule 150 6.8.3 Miscellaneous 151 SUMMARY OF CHAPTER 6 153 7 JUDGMENTS IN FOREIGN CURRENCY 155 7.1 INTRODUCTION 155 7.2 THE NEW APPROACH 155 7.2.1 Breach of contract 156 7.2.2 Damages in tort 157 7.5.3 Restitution 157 7.3 ISSUES ARISING 158 7.4 THE LAW COMMISSION 160 7.5 PART I OF THE PRIVATE INTERNATIONAL LAW (MISCELLANEOUS PROVISIONS) ACT 1995 161 xi Principles of Conflict of Laws SUMMARY OF CHAPTER 7 163 8 LAW OF PROPERTY 165 8.1 THE DISTINCTION BETWEEN MOVABLES AND IMMOVABLES 165 8.2 IMMOVABLE PROPERTY 166 8.2.1 Jurisdiction under the traditional