BCL Law Notes Conflict of Laws Notes
These notes provide a comprehensive breakdown of what is needed, seminar by seminar, for the BCL Conflict of Laws course.
They include summaries of academic positions on key issues, case summaries, the relevance of a case to each area (eg. lis alibi pendens). They are organised in a simple, easy-digestible way without lacking any of the depth that is required to get to grips with this challenging module....
The following is a more accessible plain text extract of the PDF sample above, taken from our Conflict of Laws Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
SEMINAR 10: RULE AGAINST PENAL, REVENUE AND OTHER PUBLIC LAWS
NOTE
A rule of foreign law, picked out by our choice of law rules, may still be denied application on the ground that it is
foreign penal, revenue or public law OR
Contrary to our public policy
It can only ever be English public policy that overrides it, and it’s to be decided by an English judge
DICEY RULE 3
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
EXPRESSLY SUPPORTED: Guinea v RBS (CA)
RECOGNITION v ENFORCEMENT
Enforcement can be direct or indirect.
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)
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
NOT AFFECTED BY BRUSSELS 1
QRS v Frandsen – rule applies whether jurisdiction under CL or Brussels I BUT
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
WHY DON’T WE ENFORCE FOREIGN LAWS
Government of India v Taylor – Lord Keith: it’s an extension of the sovereignty of the foreign state
PENAL LAWS
Rule
USA v Inkley - Judgment won’t be enforced if it enforces State A’s penal, public law, even if only directly
What is penal?
One which imposes a fine etc on a lawbreaker that’s made payable to the State
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
General Test
Huntington v Attrill
This case says that English law decides if it’s penal:
money taken goes to sate = usually penal
money taken goes to individual = usually not penal
Punitive and Exemplary Damages
SA Textiles v Sun – are enforceable - even though they are imposed by court to punish D, are in fact compensatory
REVENUE LAW
Won’t be enforced
Government of India v Taylor – this applies to REVENUE as well
Test?
basically if it’s a tax BUT
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
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
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
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 that sums 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’
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 the application 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
Arguably Overturned?
HMRC v Sunico – the decision in QRS v Fransden and Rossano could be viewed 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
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
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)
So Better Test?
was the right upon which the action brought a promise to pay money or a tax law
if the action can be pleaded and sustained without mention of tax law, it cannot 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 below the 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)
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
PUBLIC LAW
Rule
- USA v Inkley - generally not enforceable
What is a Public Law?
Government of India v Taylor – Lord Keith it’s an assertion of sovereign authority by one State over another
General Test
if reparation goes to aggrieved private party = enforceable
if it’s vindication of a government interest = unenforceable BUT
Therefore
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 party APPROVED:
Robb Evans (Australian case) – followed in UK CASE:
Manterfield
OTHER PUBLIC LAWS CONTINUED
Uncertainty
Dicey, Morris and Collins- indicate uncertainty in this area in terms of disagreement amongst the UK judiciary FOR EXAMPLE:...
Buy the full version of these notes or essay plans and more in our Conflict of Laws Notes.
These notes provide a comprehensive breakdown of what is needed, seminar by seminar, for the BCL Conflict of Laws course.
They include summaries of academic positions on key issues, case summaries, the relevance of a case to each area (eg. lis alibi pendens). They are organised in a simple, easy-digestible way without lacking any of the depth that is required to get to grips with this challenging module....
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started