#9996 - Essay Points Seminars 1 2 - Conflict of Laws

ESSAY POINTS RELATING TO SEMINARS 1-2

Criticism of Spiliiada

1. Oceanic Sun Line/Voth Malidra (2 different cases) – showed how in Australia, the same broad principle of forum non conveniens is applied, but differently. In Australia the immediate focus is not on the comparative appropriateness of the foreign court as against the local one, but on whether the Australian court is clearly inappropriate for the trial

2. What this rule essentially does is determines whether the Australian court can hear the case. It reflects the view that if a court is given jurisdiction, it should convincing grounds before it declines to exercise it BUT

3. Briggs

• the leading Australian cases have been PI cases, where the prospect of making the injured C go limping off to a court far away, but preferred by the wrongdoer, is unattractive

• Spiliada is better because it allows a judge in England to yield to the contention that the courts of another country would be better placed, and are available, to give the parties the adjudication they deserve. It reflects judicial comity in this sense.

• Lord Goff described it as the ‘most civilized of legal principles’ (Airbus Industrie v Patel)

4. Lord Goff

• in Airbus he also called the doctrine of forum non convenines, ‘an imperfect weapon’ but still said it was flexible enough to get the best result which was conducive to practical justice

ABELA v BAADARANI

1. Lord Sumption said that doctrine of forum non conveniens and interntional conventions have all made service out more regulated and a more acceptable practice

2. He disagreed with the idea of ‘exorbitant jurisdiction’

3. He said it’ll often be the case that there’s a jurisdiction clause anyway

GATEWAYS

1. Briggs – he thinks these gateways add nothing to Spiliada. He suggests that had Spiliada been around before these gateways were thought up, then they wouldn’t have been conceived.

LIMITS ON SUBJECT-MATTER JURISDICTION

1. Jurisdiction?

1. If a court has jurisdiction it means it has the power to hear and determine a case against D

2. It must have jurisdiction over D and the subject-matter of the claim

2. Parties’ Views Irrelevant

1. Irrespective of the parties actions or views, if English court lacks jurisdiction over the subject matter of a claim, it can’t have jurisdiction. So even if the parties submit to English court or have an agreement nominating England

What Matters, under Common Law, does English Court have no jurisdiction

1. Title to foreign land

1. So this relates to immovable property in Sem 9

2. Defamation (proposed)

1. In response to ‘defamation tourism’ fears, s.9 Defamation Act 2013 (not yet in force) will mean that a court will have no jurisdiction in defamation proceedings brought against a D not domiciled in a MS unless England is, in the light of all the places in which the offending material was published, clearly the most appropriate place for the proceedings

3. Patents

1. Lucasfilm v Ainsworth – a court lacks jurisdiction to adjudicate the validity of foreign patents BUT

2. Briggs says the better view isn’t that...