This website uses cookies to ensure you get the best experience on our website. Learn more

BPTC Law Notes Commercial Dispute Resolution Notes

Conflict Of Laws – Tort Notes

Updated Conflict Of Laws – Tort Notes

Commercial Dispute Resolution Notes

Commercial Dispute Resolution

Approximately 19 pages

A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, also...

The following is a more accessible plain text extract of the PDF sample above, taken from our Commercial Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Conflict of Laws – Tort

Introduction

  • Rules governing choice of law:

    • Common Law Rules

      • Dissatisfaction led to PI(MP)Act 1995

      • Still governs:

        • Defamation claims within scope of s.13 of 1995 Act

        • Tortious claims occurring before 1st May 1996

    • Private International (Miscellaneous Provisions) Act 1995

      • Amended to reflect terms of Rome II

  • Regulation 864/2007 (Rome II)

    • Deals with tortious claims occurring after application of regulation

Common Law Rules

  • If cause of action occurred in England, English law applies

  • General rule of double actionability:

    • Must be actionable under forum of place hearing dispute and place of dispute

    • Phillips v Eyre (1870): 2 limb test

      • Wrong must be of such a character that actionable in England

      • Act must not have been justifiable by the law of the place where it is done

    • Person should not be permitted to claim in England for a matter for which civil liability does not exist in the place where it is committed

    • Boys v Chaplin [1971]

      • C and D resident in England; temporarily in Malta and involved in RTA. Law of Malta allowed recovery of loss of earnings, English law allowed extra PSLS

      • HL said Phillips could be departed from if clear and satisfactory grounds

      • Can use country’s law which has most significant relationship with the parties

    • Red Sea Insurance Company Limited v Bouygues SA [1995]

      • First limb of Phillips not met

      • Upheld Boys v Chaplin flexibility. Went further by confirming that 1st Limb of Phillips could be departed from in exceptional circumstances

      • Can bring claim before English court even if no cause of action in English law

Rome II

  • Introduction:

    • Used when an English court is deciding a common law issue in tort

    • Applies in all MS other than Denmark

    • Attempt to harmonise between MS

  • Material scope

    • Conflicting laws

    • Non-contractual obligations

      • Art 2: tort, delict, unjust enrichment, agency without authority, culpable conduct during contract negotiations

    • Civil and commercial matters

      • Exceptions:

        • Family relationships

        • Matrimonial property regimes

        • Bills of exchange and promissory notes

        • Law of companies

        • Trusts, etc.

        • Nuclear damage

        • Violations of privacy rights

      • Does not relate to evidence/procedure

  • Temporal Scope

    • Events giving rise to damage after Regulation entered into force

    • Here – on/after 11th January 2009

  • Applicable law

    • Art 3 – any law under Rome II will apply. Does not have to be the law of an MS

    • Freedom of choice used – article 14

      • Parties may apply if:

        • Agreement entered after event giving rise to damage occurred; OR

        • Before the event and both parties are (i) pursuing commercial activity and (ii) freely negotiated the choice of law

      • Limitations:

        • Must be expressly stated OR demonstrable by circumstances

        • Must not prejudice rights of a third party

        • Court can apply provisions which cannot be derogated by agreement

          • If all elements relevant to the situation are in a country other than the one whose law is chosen, cannot derogate from that country’s provisions

          • If not above, cannot derogate from Community...

Buy the full version of these notes or essay plans and more in our Commercial Dispute Resolution Notes.