The English conflict of laws is a body of rules whose purpose is to assist an English court to deal with cases tried before it which contain a foreign element. It consists of three main topics: (i) the jurisdiction of an English court, in the sense of its competence to hear and determine a case; (ii) the selection of the appropriate rules of a system of law, English or foreign, which it should apply in deciding a case over which it has jurisdiction (in appropriate cases the English court can apply a foreign law to resolve a legal issue. The rules governing this selection are known as 'choice of law' rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations. Having established that choice of law rules can lead to the application of either English or a foreign law, this essay will attempt to explain why an English court should solve problems of characterisation by not just applying the only concepts with which it is familiar, namely those of the forum.
[...] (13th ed.) 2000 Falconbridge, Selected Essays in the Conflict of Laws. Canada Law Book, 2nd edn Fawcett, J., Reform and Development of Private International Law, Essays in Honour of Sir Peter North. Oxford: Clarendon 2002 Fentiman, R., Foreign Law in English Courts: Pleading, Proof, and Choice of Law. Oxford University Press 1998 Hay, P., & Weintraub, R.J., & Borchers, P,J., Conflict of Laws. Thomson West, Foundation Press: New York 2004 Lorenzen, E. G., Selected Articles on the Conflict of Laws. [...]
[...] Although this case dealt purely with English law, it shows a distinct move away from the usual attitude of the English courts of simply characterising by the lex fori. However, in the House of Lords this approach was abandoned and the question was seen purely as a matter of English law. Mance LJ in Reiffeisen Zentralbank Österreich AG v Five Star General Trading LLC [2001] EWCA Civ 68, [2001] QB 825 at 840. In National Bank of Greece and Athens SA v. [...]
[...] According to this theory the court should characterise the issue in accordance with the categories of its own domestic law, and foreign rules of law in accordance with their nearest analogy in the same law.[22] The main advantage of this approach, apart from simplicity and predictability, is that it enables the English court to maintain control over its own conflicts rules; otherwise, it “would no longer be master in its own home”.[23] It is impossible to be referred to a foreign lex causae other than by means of a choice of law rule and choice of law rules can only be attached to legal categories. It follows that this initial categorisation can only be effected by the lex fori because at that stage one does not know what the lex causae is. [...]
[...] Old Bailey Press 2001 Clarkson, C.M.V., & Hill, J., Jaffey on the Conflict of Laws. Oxford: Clarendon 2005 Collier, J. G., Conflict of Laws. Cambridge University Press 2004 Collins, L., Essays in International Litigation and the Conflict of Laws. Oxford: Clarendon 1994 Dicey & Morris., The Conflict of Laws. London: Sweet & Maxwell Ltd. [...]
[...] By the Foreign Limitation Periods Act 1984 they must, in a conflict case, generally treat rules of both English and foreign law governing the period within which an action must be brought as pertaining to substance and not procedure, irrespective of their classification by the domestic law to which they belong. Section 9 of the Private International Law (Miscellaneous Provisions) Act 1995 provides that the characterisation of whether an issue relates to tort is a matter for the courts of the forum. [...]
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