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Seminar 10 Notes

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1. A rule of foreign law, picked out by our choice of law rules, may still be denied application on the ground that it is I. foreign penal, revenue or public law OR II. Contrary to our public policy

2. It can only ever be English public policy that overrides it, and it's to be decided by an English judge


1. English courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State



1. Enforcement can be direct or indirect.

2. Indirect enforcement = where the foreign state (or its nominee) seeks a remedy, not based on a foreign penal, revenue or other public law, but which in substance will enforce such a law (QRS v Frandsen was seen as an example of this)

3. Recognition is where a foreign law is relevant to a matter in issue, where giving effect to it would not lead to the enforcement of a foreign penal, revenue, or other public law (Iran v Barakat is an example of this). Thus the claim (which relies on considering the foreign law) will be enforced


1. QRS v Frandsen - rule applies whether jurisdiction under CL or Brussels I BUT

2. Remember, a lot of the time if it's revenue, public law or penal it'll fall outside the scope of civil and commercial matters


1. Government of India v Taylor - Lord Keith: it's an extension of the sovereignty of the foreign state


1. Rule
- USA v Inkley - Judgment won't be enforced if it enforces State A's penal, public law, even if only directly

2. What is penal?
- One which imposes a fine etc on a lawbreaker that's made payable to theState Huntington v Attrill - defined penal laws as being broader than crimes.

It's where there could be a pecuniary punishment at the behest of the State

3. General Test
- Huntington v Attrill
- This case says that English law decides if it's penal: i. money taken goes to sate = usually penal ii. money taken goes to individual = usually not penal

4. Punitive and Exemplary Damages
- SA Textiles v Sun - are enforceable - even though they are imposed by court to punish D, are in fact compensatory


1. Won't be enforced
- Government of India v Taylor - this applies to REVENUE as well

2 2. Test?
- basically if it's a tax BUT

3. What's a Tax
- Buchanan v McVey - where it includes a non-contractual payment of money or gratuity to a government body. It this case, that included a profits levy

4. Briggs' Choice Argument
- Briggs proposes that you have to consider whether the person had any choice. If they did, it probably won't be a tax, despite going to the State. It would be a contractual obligation

5. Rossano v Manufacturers
- Briggs this case support the view that if judgment in the action would increase the likelihood that a tax would be paid, the action is prohibited. Criticizes this view and says its motivated by a distaste for taxes

6. QRS v Fransden
- FACTS: A director stripped the assets of a company and was being pursued for this. The action was dismissed by the CA on the grounds thatsums recovered would be used to discharge a corporation tax liability BRIGGS: says this basically licensed theft from a company. He said this is

'the very antithesis of law'

7. A better approach
- Re Norway's Application HL - this case shows a better approach, whereby, a foreign tax authority was allowed to obtain an order for the taking of evidence in England, even though the entire purpose of theapplication was to assist the foreign state in collecting taxes Briggs - shows that the House of Lords wasn't horrified by the idea of a

foreign state collecting taxes

8. Arguably Overturned?
- HMRC v Sunico - the decision in QRS v Fransden and Rossano could beviewed as being inconsistent with this case HMRC were allowed to bring proceedings for a civil wrong in Denmark, despite the fact it would lead to the payment of English VAT (ie. it wasn't against Art 1) BUT

3 -

Contrary view: this may not have been contrary to ordre public in Denmark. In any event, English courts would still not enforce a foreign

revenue law just because of this judgment

9. Hypothetical Situations from Briggs
- person brings payment on an invoice that includes VAT should be allowed, person choose this
- employee brings action for unpaid wages (income tax still payable on)

10. So Better Test?
- was the right upon which the action brought a promise to pay money or atax law if the action can be pleaded and sustained without mention of tax law, itcannot involve the enforcement of a revenue law ME: What about TV licence - how much scope is there for 'choice' here - surely there's always a choice with taxation (ie. income tax = stay belowthe statutory minimum; council tax = don't be a home-dweller) Briggs draws a link with Iran v Barakat here as how the law has disentangled what's really being pursued in the action (in that case it was

property rights, rather than enforcement)

11. Whether it's brought by government or not
- Briggs - if a person is obliged to pay utility charges to a private individual, this is 'quasi-revenue', so it justifies and shows why the other public laws approach is good


1. Rule
- USA v Inkley - generally not enforceable

2. What is a Public Law?
- Government of India v Taylor - Lord Keith it's an assertion of sovereign authority by one State over another

3. General Test
- if reparation goes to aggrieved private party = enforceable
- if it's vindication of a government interest = unenforceable BUT

4. Therefore

4 -

Even if money is formally payable to the State, judgment is enforceable if it is in substance a claim for damages on behalf of private partyAPPROVED: Robb Evans (Australian case) - followed in UK CASE: Manterfield


1. Uncertainty
- Dicey, Morris and Collins- indicate uncertainty in this area in terms of disagreement amongst the UK judiciary FOR EXAMPLE:

2. AG of New Zealand v Ortiz
- Lord Denning recognised that some laws will not be either penal orrevenue and will be 'other public laws' that should not be recognised BUT Staughton J, at first instance, was not sure that public laws wouldn't be

- Hence USA v Inkley followed by saying public laws not enforceable

3. AG v Heinemann
- Australian High Court refused to enforce British public laws (ie. restrain publication of Spycatcher - which contained information about Britishsercurity services) Mance CJ said this would require the enforcement of a 'governmental

interest' and thus shouldn't be enforced

4. Guinea v RBS
- Lord Hoffman said, referring to AG v Heinemann, that there had to be consideration of whether 'the central interest' of the state in bringing theaction is governmental in nature This is a governmental interest view again


1. Dicey Morris Collins
- suggest their rule only relates to enforcement, not recognition

2. AG of New Zealand v Ortiz


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