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Seminar 9 Notes

BCL Law Notes > Conflict of Laws Notes

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1. Private International Law of property divides into: I. immovable property II. movable property a) tangible property b) intangible property


1. Lex Situs - Whether property is an immovable is determined by the law of the place where it is

2. This is an exception to the principle that characterization is a matter for the lex fori


1. 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)

2. 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 a) 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) b) British South Africa
- English court has no jurisdiction to determine questions of title to immovable property situated outside England THUS

1 -

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: c) Section 30 CJJA 1982
- in tort claims, where the issue of title to land is not the principalissue, 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 jurisdictionwould be declined). However, GENERALLY this statute means that land element to claim will not

prevent jurisdiction being assumed in tort claims d) 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 nojurisdictional 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

1. Bank of Africa v Cohen - apply lex situs, in its renvoi sense, where the question is properly one concerning title to the land


1. Immovable property in another MS - no jurisdiction due to Art 22

2. Immovable property in a non-MS and CL rules apply = no juridiction under CL (subject to exceptions above)


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