choice of law Flashcards
lex fori
the domestic/ local law of the forum the place the case is being heard
lex causae
the law that governes the substantive issue of the case
lex loci delicti
the law of the place where the delicti was committed
lex stitus
the law if the place the property was situtated
choice of law def
specify when these courts are to apply the rules of another legal system and the legal system in Q
it has 2 elements A LEGAL CAT (action for divorce)
AND CONNECTING FACTOR (parties habitual resisdence in scot)
lex loci clebrationis
the formal validity of marriage is governed by the place of celebration
connecting factor
Habitual residence:
characterisation
both rules of jurisitcion and choice of law refer to legal category (contract, divorce) this is chossing the juridical category an issue or type if lit falls
characterisation normally done by lex fori
metal inducstries v owners of st harle
sale of ship for social contribution when those contribution became revenue tax law. HELD IPL DOES NOT enforce REVENUE or TAX law from other systems could not be collected that way
exceptions and modifications to the use of lex fori
where rules of IPLS governed by EU law of characterisation. so autonomous
leg may deal with how characterisation is to be made wills act 1963 s.3
property is movable or immovable = lex stitus
scope of IPL categories is wider than DOMESTIC ie scotlands view on polygamous marriage
s.38(2) family law (scot) ACT 2006
characterisation has id the capacity to marry and domicile = connecting factor.
the problem of renvoi
the court will initially apply the PIL rules of the jurisdiction in which it is located (A) to decide which law applies. If A’s law is the applicable law, the court will apply A’s domestic law. However, if the applicable law is that of another jurisdiction (B), the court must decide whether to apply B’s domestic law or B’s law including B’s own PIL rules. If the court decides on the latter and B’s PIL rules refer back to the law of A, or refer to the law of a third jurisdiction,
what is issue of substance governed by
lex causae
what are issues of procedure govered by
lex fori
re fulds estate
rules of evidence; ROME 1 REG ART 18(1)(2) law applicable
domicile: every individual must have 1 dom at one time.
udnay v udnay- child born in france to Scottish domiciled parents = takes domicile of parents Scottish law. s.22(2) FAMILY LAW ACT “closest connection”- reference should be made to long term intentions of parents. actual physical residence in the contrary of choice and intent to remain in chosen country indef.
harding v wealands
quantification of damages. ROME 1 ART 12(1)c= lex causae Rome 11 reg art 15c
car crash in n/z drivers both English. damages higher in nz than uk. had to demonstrate that nz law app. HELD lex causae applied for quantification of damages
DOUBLE ACTION ABILITY
Lex fori and lex loci delicti
NO CONCEPT of PARTY Autonomy app law deterimed by parties intentions.
prescription and limitation act 1973 s.23
substance goverened by lex causae. rome 1 contractual obls rome 11 applicable NON contractual obls
miliangos v George frank
courts now deal with claims and give judgements in fporeign currency currency claims and judgments
Proof of foreign law
foreign law must be averred and proved by the part relying on it otherwise the court will apply scots law
pryde v proctor gamble
accident in Scotland app law failed to prove that English law app. the court will presume thay the law is the same is scotland
bonnor v balfour Kilpatrick
law of oman working in Scotland. oman law necessary to rule out claim altogether. choice of law app. pressure to demonstrate that foreign = scots. parties must demonstrate foreign law applies
perry v serious crime agency
when HL was superior appelete court no legal system og the UK was foreign law in a civil case befire the house the same rule applies in the UK supreme court.
WHAT are the modes of proof of foreign law
admissions/ remit forgn lawyer/ expert evidence/ stat procedures
duke of wellingtons exec
under british law ascertainment act 1859 extended by the foreign jurisdiction act 1890 any court in her majestys dominions may remit a q relating to the law of another of those dominions to a superior court in the latter country for an opinion
European convention on info foreign law 1968 rat uk established a transmitting agency and receiving agency to pass infoon about forign law
questions must emeenate from juridical authority abd arise from actual proceedings
the reply by the other country is not binding
winkworth v christie
EXCLUSION OF FOREIGN LAW
artwork stolen. taken to Italy bought in goodfaith. then attempted to be sold in christies auction. English law sale =void
Italian law sale = in good faith so title would hold.
Italian law applied.
(the test is not whether foreign law is contrary to pub policy its whether in the circumstances of the case the APP of the RULE would be CONTRARY to pub policy)
loucks v standard oil
EXCLUSION OF FOREIGN LAW
(the test is not whether foreign law is contrary to pub policy its whether in the circumstances of the case the APP of the RULE would be CONTRARY to pub policy)
the courts are not free to refuse foreign right at pleasure of judges. it has to be violation of fundamental principle of deep rooted trad of the common weal. (pologomy)
government v india
revenue laws- well established that Scottish courts will not use IPL to enforce revenue law or decree.
reg in india went into liquidation. gov. tried to cease assets arguing assets= tax
English system HELD do not enforce rev from foreign legal systems not enforcable
peter v mc vey
indirect enforcement of revenue laws will not be permitted. nor will ancillary order
SNO v thomsons exec
foreign rev laws are not denied all recognition thua revenue of the lex causae rendering a contract void will be given affect.
usa v inkley
Penal laws of other juristicions cannot be enforced through IPL. brit charged with various offences in the Us AS LONG AS HE APPEARED IN COURT THEY WOULDNT ENFORCE FINE. he disappeared. they wanted to enforce law. BUT held part of PENAL law couldn’t enforce it through scots courts
banco di viscaya v don alfonso de bourbon
characterisation of a rule of penal or otherwise is a matter for lex fori. penalties has a wider meaning than punishments inflicted in crim or penalty in civl proceedings or breach of public law
ag for nz v ortiz
he appeal failed. The Act contained no provision to forfeit illegally exported articles automatically. There had been no act of seizure and therefore the Crown had no title to the carving.
Denning MR discussed the rule that a court of one jurisdiction will not enforce the penal laws of another jurisdiction: ‘No one has ever doubted that our courts will not entertain a suit brought by a foreign sovereign, directly or indirectly, to enforce the penal or revenue laws of that foreign state. We do not sit to collect taxes for another country or to inflict punishments for it.’
Forign law excluded by statute/
yes! rome 1 contractual obl
