choice of law

Question 1

lex fori

Answer 1

the domestic/ local law of the forum the place the case is being heard

Question 2

lex causae

Answer 2

the law that governes the substantive issue of the case

Question 3

lex loci delicti

Answer 3

the law of the place where the delicti was committed

Question 4

lex stitus

Answer 4

the law if the place the property was situtated

Question 5

choice of law def

Answer 5

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)

Question 6

lex loci clebrationis

Answer 6

the formal validity of marriage is governed by the place of celebration

Question 7

connecting factor

Answer 7

Habitual residence:

Question 8

characterisation

Answer 8

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

Question 9

metal inducstries v owners of st harle

Answer 9

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

Question 10

exceptions and modifications to the use of lex fori

Answer 10

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

Question 11

s.38(2) family law (scot) ACT 2006

Answer 11

characterisation has id the capacity to marry and domicile = connecting factor.

Question 12

the problem of renvoi

Answer 12

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,

Question 13

what is issue of substance governed by

Answer 13

lex causae

Question 14

what are issues of procedure govered by

Answer 14

lex fori

Question 15

re fulds estate

Answer 15

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.

Question 16

harding v wealands

Answer 16

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.

Question 17

prescription and limitation act 1973 s.23

Answer 17

substance goverened by lex causae. rome 1 contractual obls rome 11 applicable NON contractual obls

Question 18

miliangos v George frank

Answer 18

courts now deal with claims and give judgements in fporeign currency currency claims and judgments

Question 19

Proof of foreign law

Answer 19

foreign law must be averred and proved by the part relying on it otherwise the court will apply scots law

Question 20

pryde v proctor gamble

Answer 20

accident in Scotland app law failed to prove that English law app. the court will presume thay the law is the same is scotland

Question 21

bonnor v balfour Kilpatrick

Answer 21

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

Question 22

perry v serious crime agency

Answer 22

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.

Question 23

WHAT are the modes of proof of foreign law

Answer 23

admissions/ remit forgn lawyer/ expert evidence/ stat procedures

Question 24

duke of wellingtons exec

Answer 24

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

Question 25

winkworth v christie

Answer 25

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)

Question 26

loucks v standard oil

Answer 26

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)

Question 27

government v india

Answer 27

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

Question 28

peter v mc vey

Answer 28

indirect enforcement of revenue laws will not be permitted. nor will ancillary order

Question 29

SNO v thomsons exec

Answer 29

foreign rev laws are not denied all recognition thua revenue of the lex causae rendering a contract void will be given affect.

Question 30

usa v inkley

Answer 30

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

Question 31

banco di viscaya v don alfonso de bourbon

Answer 31

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

Question 32

ag for nz v ortiz

Answer 32

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.’

Question 33

Forign law excluded by statute/

Answer 33

yes! rome 1 contractual obl