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SUBSTANCE AND PROCEDURE
OPENING a) Generally, substance governed by lex causae, procedure governed by lex fori b) Dicey, Morris and Collins - procedure governed by Lex fori means English domestic law c) Pfeiffer (High Court of Australia) - issues of substance are those relating to the 'existence, extent or enforceability of the rights or duties of the parties' d) Clarkson & Hill - procedure is rules of law, method of trial e) Clarkson & Hill - the dividing line between procedure and substance isn't always clear f) Carruthers - English law, particularly where influenced by European developments, is now adopting a more balanced approach to what constitutes a substantive matter
HOW IT WORKS a) Briggs - lex fori governs procedural issues, with the only reservation being that the legislative definition of 'procedure' in European Regulations may be rather different, and perhaps narrower, than the counterpart definition in the common law of private international law
1. Lorenzen - historically English lawyers gave the widest possible definition to
2. procedure Dicey, Morris and Collins - this is no longer true
COMPETENCY a) Briggs - this is a procedural matter, however, it'll be applied with a degree of flexibility, as demonstrated by:
1 b) Bumper Development v MPC (CA) - ruined Hindu temple which enjoyed legal personality under Indian law was recognised as competent to sue c) Art 13 Rome 1 relevant?
TRIAL a) Currently English law, including interim relief (unless legislations says otherwise) determines b) Collins - argues that interim relief being governed by procedure is the main prize when issues of jurisdiction are fought c) LIMITS TO INTERLOCUTORY ORDERS I. Van Uden - worldwide freezing injunction should probably not be ordered unless English court seised of the substantive proceedings. This case also shows that court has discretion not to grant interlocutory II.
reflief, even though Regulation might authorize it to Allianz - English court can't grant an anti-suit injunction, even on an interlocutory basis and even though it might be thought of as a procedural order, where this would have the effect of interfering with the right and duty of a judge in another MS to apply the Regulation to
III. the proceedings in his court Owusu - English court can't grant a stay of proceedings in favour of a court in a non-MS where the order means that it will, in effect, not exercise the jurisdiction which the Regulation confers upon it
EVIDENCE a) Clarkson & Hill - traditionally all matters of evidence were procedural b) Re Fuld's Estate - under CL burden of proof was a matter for procedure BUT c) Rome 1 and Rome II - both say that evidence and procedure excluded from their scope, but say that burden of proof and presumptions are governed by applicable law
- Rome I - Art 1(3) says evi and procedure excluded, Art 18 says burden of proof under applicable law
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