#10022 - Seminar 9 - Conflict of Laws

SEMINAR 9: PROPERTY

GENERAL

1. Private International Law of property divides into:

1. immovable property

2. movable property

1. tangible property

2. intangible property

HOW TO DECIDE

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

IMMOVABLE PROPERTY

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

1. 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)

2. 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:

3. 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

4. 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

1. 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

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)

3. 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

1. Apply Lex Situs

1. 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

2. No exception

1. 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?)

3. Briggs Moots an exception

1. 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

2. Plus, this is just a theory

4. Just how this applies

1. So wherever the transfer of title took place, essentially, that place is the governing law AND

2. If it’s disputed that it wasn’t an effective transfer, that’s still determined by the lex situs

5. Transfer of Property

1. 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

6. Final Transaction

1. If A sells to B in England, who sells to C in France, who sells to D in Germany, which transfer determines the lex situs?

2. It’s the final transaction in chronological terms (so Germany) and earlier issues will be regarded as incidental, looked at through the lens of the lex situs as to whether the previous parties who’ve lost their title have a remedy/claim

7. Exception – transit

1. Where goods are in transit and their situs is unknown, Dicey rule 133 suggests that there is a case for saying that the lex situs doesn’t apply and instead apply the law which governs the transaction

8. Moving From One Country To Another

1. If you take my property in England and then go to France, the lex situs is England (provided there are no subsequent issues affecting title). The mere fact that you have moved to France doesn’t affect this

ACTIONS FOR THE RECOVERY OF MOVABLE PROPERTY

1. So you’ve applied the lex situs

1. So you apply the lex situs to figure out that you have title to the property. But that alone doesn’t mean that you can recover it. You have to bring a claim then.

2. This claim is with Rome II (provided Rome II applies in terms of civil/commercial and temporal scope etc)

2. Apply Rome II

1. This will be to pick the governing law for the claim (note: not the actual matter of who has title which is decided by the lex situs)

2. So, if C wants relief because D has his property, so this is on the broad ground that D has committed a wrongful interference with the property

3. Dicey – so Rome II determines the governing law for the obligation which is alleged to be owed and to have been breached, but it doesn’t determine those matters which aren’t obligations (such as who owns the thing interfered with or who owns the intellectual property right infringed upon)

Choice of Law at CL (I can’t see being relevant as this is where Rome II wouldn’t apply seemingly)

1. Common Law

1. Actions to recover movable property, or to obtain damages for its wrongful loss, are brought in the form of tort actions, as a claim alleging the tort of conversion

INTANGIBLE THINGS

1. What

1. Basically dealing with the voluntary assignment of debts/obligations

2. How to deal with?

1. Art 14 Rome I

2. Because it comes under Rome I this precludes one thinking of these things as proprietary. A view which was supported in Five Star Trading in relation to the RC

3. Explained In...