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 9: PROPERTY
GENERAL
Private International Law of property divides into:
immovable property
movable property
tangible property
intangible property
HOW TO DECIDE
Lex Situs - Whether property is an immovable is determined by the law of the place where it is
This is an exception to the principle that characterization is a matter for the lex fori
IMMOVABLE PROPERTY
Art 22 – where land is in another MS, English court doesn’t have jurisdiction remember (subject to cases in Sem 3-4 that say that the object of the proceedings wasn’t really land)
Where court has personal jurisdiction over D under Brussels regime (eg. Art 2) but land in non-MS one view is that court is bound to adjudicate
Common Law Jurisdiction
Where this is relevant
I think these principles apply where there is property in a non-MS (ie. Art 22 doesn’t apply) and D is not domiciled in a MS (so jurisdiction would be by Art 4)
British South Africa
English court has no jurisdiction to determine questions of title to immovable property situated outside England THUS
If property is not in England, and the dispute relates to possession or title of land – the claim must be brought in the courts of the country where the land is situated SO
Reject jurisdiction, even if you have it by the normal ways
Has no jurisdiction to entertain tort claims in which it might have to entertain questions of title to immovable property -just this bit was overturned by CJJA:
Section 30 CJJA 1982
in tort claims, where the issue of title to land is not the principal issue, jurisdiction can be assumed
EXAMPLE: claim in trespass where D claims it was his land, clearly that’s a tort claim where title to land is principal (so jurisdiction would be declined). However,
GENERALLY this statute means that land element to claim will not prevent jurisdiction being assumed in tort claims
Penn v Baltimore
This provides an EXCEPTION to general rule
if a claim can be framed as one to enforce a personal obligation, albeit one relating to foreign immovable property, there is no jurisdictional impediment to it
NOTE: this is common law, there has been no suggestion that the same is true of claims under Brussels I
Choice of Law
Bank of Africa v Cohen – apply lex situs, in its renvoi sense, where the question is properly one concerning title to the land
MY LITTLE HELPFUL TEST
Immovable property in another MS – no jurisdiction due to Art 22
Immovable property in a non-MS and CL rules apply = no juridiction under CL (subject to exceptions above)
Immovable property in a non-MS and England has jurisdiction under Brussels I (excluding Art 4) = it’s complicated, this is one of the bits relating to Owusu and how that applies
CHOICE OF LAW FOR MOVABLE THINGS
TANGIBLE THINGS
Apply Lex Situs
Cammell v Sewell
Title to, or the right to possession of, tangible movable property are governed by the lex situs of the thing at the date of the event which is alleged to have affected title to it
So even if the thing is taken to England, if the event occurred in Italy, then apply the lex situs
The law applicable to the transfer of title to tangible movable property is the lex situs : the law of the country where the movable was situated at the time of the transfer (Cammell v Sewell
No exception
Glencore v Metro
lex situs is applied without exception SO
even if the parties are together in one place but the thing is elsewhere OR
even if the lex contractus says otherwise (ie. with a conditional transfer clause?)
Briggs Moots an exception
He suggests that if the parties have made a contract which specifies when property will pass, this may be effective, but only if its validity and effect are acknowledged by the lex situs
Plus, this is just a theory
Just how this applies
So wherever the transfer of title took place, essentially, that place is the governing law AND
If it’s disputed that it wasn’t an effective transfer, that’s still determined by the lex situs
Transfer of Property
Winkworth v Christie
FACTS: goods stolen from C in England, taken to Italy and sold to D (innocent purchaser). Italian law applied as the lex situs
DECISION: the validity of a transfer of movable property and its effect on the proprietary rights of any persons claiming to be interested therein are governed by the lex situs at the time of transfer (Italian law)
Relating to Cammell principle, even though the property in Winkworth had subsequently been taken to England, the event giving rise to the title being affected occurred in Italy (ie. the sale to D in Italy) and thus apply Italian law
Final Transaction
If A sells to B in England,...
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....
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