Law Notes Conflict of Laws Notes
Conflict of Laws notes fully updated for recent exams in the UK. These notes cover all the major conflicts of laws cases and so are perfect for anyone doing a law degree in the UK or, given the international nature of this subject, these notes also make a great supplement for those studying law abroad.
These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the l...
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:
PROPERTY
Step 1 – Characterisation
Contract, tort or property? | Contract
Property When buyer is asserting that because of sale to buyer, seller has no title to transfer to anyone else (i.e. buyer is claiming bicycle itself) ? proprietary question. E.g. Kuwait Airways Corp v Iraqi Airways Co
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Voluntary or involuntary? | Where property has been requisitioned or nationalised by state/dealt with by court as part of execution of judgment
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Movable or immovable? | Property: personalty and realty
Immovables: land in England, all interests in land (including leases) NB Leases are personalty in domestic law (Freke v Lord Carbery) Property abroad: characterised as immovable or movable according to lex situs |
Tangible or intangible? | Factual – property is either factual or it isn’t factual.
Williams v Colonial Bank C of A: distinction should be drawn between possession of certificates and ownership of shares
What governs effect of possession of certificate?
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Step 2 – Immovables
Jurisdiction
Court must decide whether it has jurisdiction, before deciding what the choice of law rule for property questions over foreign immovable property might be.
Art 22: English court cannot take jurisdiction over proceedings, which have as their object a right in rem in immovable property located in another MS.
National rules: English court does not have jurisdiction over question of title to foreign immovable property located in third state.
British South Africa Co v Companhia de Mocambique: H of L, held, it did not have jurisdiction in an action for trespass to land in Africa. Cannot decide an action of title nor one for possession for foreign land.
Hesperides Hotels v Aegean Turkish Holidays: H of L, refused to hear an action in respect of an alleged conspiracy made in England to trespass in hotel in Cyprus.
Exceptions to rule
Civil Jurisdiction and Judgments Act 1982, s30 | Modified Mocambique rule.
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English trust/will | If will/trust concerns in whole or in part with foreign land, question of title thereto arises incidentally.
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Equitable jurisdiction in personam | English courts can act in personam upon a defendant within jurisdiction to enforce personal obligation, incumbent upon D when subject matter is land abroad.
Basic requirements
Requirement 2 – Explanation
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Choice of law
Immovable property: lex situs
Transfer, extinction of interests in immovable and formal/essential validity of transfers all governed by lex situs
No exceptions to rule.
Adams v Clutterbuck
Two domiciled Englishmen in England entered into lease of land in... |
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Buy the full version of these notes or essay plans and more in our Conflict of Laws Notes.
Conflict of Laws notes fully updated for recent exams in the UK. These notes cover all the major conflicts of laws cases and so are perfect for anyone doing a law degree in the UK or, given the international nature of this subject, these notes also make a great supplement for those studying law abroad.
These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the l...
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