Conflict of laws

Michael Freeman
Manos Maganaris
This module guide was prepared for the University of London by:

u Michael Freeman, LLB (UCL, London), LLM (UCL, London), Emeritus Professor, Faculty
of Laws, UCL

u Manos Maganaris, LLB (Athens), LLM (Glasgow), PhD (Glasgow), Senior Lecturer in
Law, Glasgow School for Business and Society, Glasgow Caledonian University.

This is one of a series of module guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide.

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Conflict of laws page i

Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 What is ‘conflict of laws’? . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Procedure and substance . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.4 The impact of Brexit on conflict of laws: the position so far . . . . . . . . . . . 7
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 Fundamental concepts and issues . . . . . . . . . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Characterisation – an illustration: Ogden v Ogden . . . . . . . . . . . . . . . 13
2.2 The difficulties that arise with characterisation . . . . . . . . . . . . . . . 13
2.3 The ‘incidental question’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4 Renvoi: an explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.5 Public policy and the exclusion of foreign law . . . . . . . . . . . . . . . . 19
2.6 Penal, revenue and other public laws . . . . . . . . . . . . . . . . . . . . 22
2.7 Proof of foreign law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

3 Domicile and residence . . . . . . . . . . . . . . . . . . . . . . . . . 29

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.1 The concept of domicile . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2 The ascertainment of domicile . . . . . . . . . . . . . . . . . . . . . . . 32
3.3 Domicile and categories of persons . . . . . . . . . . . . . . . . . . . . . 33
3.4 Domicile of dependency . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.5 Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.1 Historical background . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2 Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.3 Jurisdiction under the traditional rules . . . . . . . . . . . . . . . . . . . . 45
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

5 The EU regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.1 The Brussels Regulation (recast) . . . . . . . . . . . . . . . . . . . . . . . 53
5.2 Special jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.3 Exclusive jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
5.4 Jurisdiction agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
5.5 Other issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5.6 The Brussels Regulation (recast) . . . . . . . . . . . . . . . . . . . . . . . 64
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
page ii University of London

6 Stays and restraint of proceedings . . . . . . . . . . . . . . . . . . . . 71

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6.1 Stays of English proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 73
6.2 Foreign jurisdiction clauses . . . . . . . . . . . . . . . . . . . . . . . . . 75
6.3 Restraint of foreign proceedings . . . . . . . . . . . . . . . . . . . . . . . 77
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

7 Foreign judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.1 The status of foreign judgments . . . . . . . . . . . . . . . . . . . . . . . 83
7.2 Foreign judgments: recognition and enforcement at common law . . . . . 83
7.3 The nine available defences . . . . . . . . . . . . . . . . . . . . . . . . . 86
7.4 Recognition and enforcement of judgments – the EU regime . . . . . . . . .89
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

8 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
8.1 The Rome I Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
8.2 Choice of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
8.3 In the absence of express choice . . . . . . . . . . . . . . . . . . . . . . 100
8.4 Mandatory rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8.5 Validity of contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
8.6 Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
8.7 Scope of the applicable law . . . . . . . . . . . . . . . . . . . . . . . . . 107
8.8 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

9 Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
9.1 Background: the common law rules . . . . . . . . . . . . . . . . . . . . 115
9.2 The 1995 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
9.3 Rome II Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

10 Restitutionary remedies . . . . . . . . . . . . . . . . . . . . . . . . 121

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
10.1 Rome II Regulation (Article 10) . . . . . . . . . . . . . . . . . . . . . . . 123
10.2 Characterising unjust enrichment . . . . . . . . . . . . . . . . . . . . . 123

11 Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
11.1 Classifications of property . . . . . . . . . . . . . . . . . . . . . . . . . 127
11.2 Tangible movable property . . . . . . . . . . . . . . . . . . . . . . . . . 128
11.3 Intangible movable property . . . . . . . . . . . . . . . . . . . . . . . . 130
11.4 Negotiable instruments and shares . . . . . . . . . . . . . . . . . . . . . 132
11.5 Jurisdiction over immovable property situated outside England . . . . . . 133
11.6 Matrimonial property . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Conflict of laws page iii

12 Succession and trusts . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
12.1 Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
12.2 The EU Succession Regulation (Brussels IV) . . . . . . . . . . . . . . . . . 145
12.3 Trusts: the Hague Convention rules . . . . . . . . . . . . . . . . . . . . . 147
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

13 Marriage and other adult relationships and the status of children . . . 151
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
13.1 Formal validity of marriage . . . . . . . . . . . . . . . . . . . . . . . . . 153
13.2 Essential validity of marriage . . . . . . . . . . . . . . . . . . . . . . . . 155
13.3 Polygamous marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
13.4 Same-sex marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
13.5 Legitimacy of children . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

14 Matrimonial causes . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
14.1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
14.2 Choice of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
14.3 Recognition of foreign judgments . . . . . . . . . . . . . . . . . . . . . 172
14.4 Financial provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
page iv University of London

Notes
Conflict of laws page v

Module descriptor
GENERAL INFORMATION

Module title
Conflict of laws

Module code
LA3014

Module level
6

Enquiries
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk

Credit value
30

Courses in which this module is offered

LLB, EMFSS

Module prerequisite
None

Notional study time

300 hours

MODULE PURPOSE AND OVERVIEW

Conflict of laws is offered as an optional module to students studying on the Standard
Entry and Graduate Entry LLB courses. It is also offered as an individual module. Credits
from an individual module will not count towards the requirements of the LLB.

Also known as private international law, this is the body of rules applied by the
English courts to cases with a foreign element, dealing with core issues of jurisdiction,
substantive decision making and recognition of the laws of other jurisdictions. Existing
case law has been developed in recent years with the statutory implementation of
International Conventions and Law Commission reports – but there are questions as
yet unsettled, which increases the importance of academic writing and also gives
students the chance to present their own solutions.

MODULE AIM
This module introduces students to:

1. Set out the conditions under which a court is competent to hear an action (the
question of jurisdiction);

2. Determine by what law the rights of the parties are to be ascertained (the question
of choice of law);

3. Specify the circumstances in which the foreign judgment can be recognised and
enforced by action in England (the question of recognition and enforcement of
foreign judgments).
page vi University of London

LEARNING OUTCOMES: KNOWLEDGE

Students are expected to have knowledge and understanding of the main concepts,
principles and rules of conflict of laws. In particular they should be able to:

1. Demonstrate a fundamental knowledge and understanding of the purpose and

sources and the main elements of conflict of laws;

2. Demonstrate knowledge of a substantial range of major concepts, values,

principles and rules of conflict of laws and explain the relationship between them
in a number of areas;

3. Demonstrate study in depth and in context of a number of substantive areas of

conflict of laws;

4. Demonstrate knowledge and understanding of the social, economic, moral and

ethical context of conflict of laws;

5. Demonstrate an understanding of solutions to legal challenges arising from

conflict of laws.

LEARNING OUTCOMES: SKILLS

Students completing this module should be able to demonstrate the ability to:

6. Apply legal principles to a range of specific conflict of laws-based problems and

present reasoned arguments and conclusions;

7. Demonstrate effective written communication skills in assessed work using

appropriate legal terminology specific to conflict of laws;

8. Demonstrate effective reading of legal sources;

9. Conduct complex research tasks using hard copy and online resources and analyse
and interpret legal questions and problems;

10. Critique key arguments in judicial opinions and academic writings.

BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.

MODULE SYLLABUS
a. The nature of private international law.

b. Fundamental conceptions: classification. Renvoi. Public policy. Evasion of the law. The
incidental question. Time factor.

c. Connecting factors, in particular domicile and habitual residence. Comparison with

nationality.

d. The rules relating to the jurisdiction of English courts in cases involving a foreign
element. Staying foreign actions: the forum non conveniens doctrine.

e. The principles of English private international law relating to the following matters:
Persons: status and capacity. Corporations. The family: validity and effects of
marriage. Divorce. Nullity of marriage. Maintenance obligations. Legitimacy.
Contracts: form. Interpretation. Illegality. Discharge. Torts. Property: movables
and immovable. Transfer of tangible and intangible property. Intestacy. Wills.
Administration of estates. Trusts. Procedure and evidence: proof of foreign law.
Recognition and enforcement of foreign judgments and decrees.

Note: The syllabus does not include bankruptcy, negotiable instruments, the equitable
doctrines of election, satisfaction and performance.
Conflict of laws page vii

LEARNING AND TEACHING

Module guide
Module guides are the students’ primary learning resource. The module guide covers
the topics in the syllabus and provides the student with the grounding to complete
the module successfully. The module guide includes the Module Descriptor that
sets out the learning outcomes that must be achieved. The guide also includes the
Core text, Essential and Further reading and a series of activities designed to enable
students to test their understanding and develop the relevant skills. The module guide
is supplemented each year with the pre-exam update, made available on the VLE.

The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:

u a module page with news and updates;

u a complete version of the module guides;

u mini lectures are provided for some modules;

u pre-exam updates;

u past examination papers and reports;

u discussion forums where students can debate and interact with other students;

u quizzes – multiple choice questions with feedback are available for some modules.

The Online Library

The Online Library provides access to:

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u law reports;

u links to important websites.

Core texts
Students should refer to the following core texts and specific reading references are
provided for this text in each chapter of the module guide:

¢ Hill, J. and M. Ní Shúilleabháin Clarkson & Hill’s conflict of laws. (Oxford: Oxford
University Press, 2016) fifth edition [ISBN 9780198732297].

¢ Torremans, P. et al. (eds) Cheshire, North & Fawcett: private international law.
(Oxford: Oxford University Press, 2017) 15th edition [ISBN 9780199678990].

ASSESSMENT
Learning is supported through tasks in the module guide and online activities. The
formative assessment will help students to reach the module learning outcomes
tested in the summative assessment.

Summative assessment is through a three hour and fifteen minute unseen

examination. Students must answer three questions out of six from a choice of essay
and problem questions.

Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
page viii University of London

Permitted materials
Students are permitted to bring into the examination room the following specified
document:

¢ Hart core statutes on conflict of laws 2022–23 (Bloomsbury).

1 Introduction

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1.1 What is ‘conflict of laws’? . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 Procedure and substance . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.3 Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.4 The impact of Brexit on conflict of laws: the position so far . . . . . . . . 7

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

page 2 University of London

Introduction
Whenever English law addresses a legal problem that has a foreign element, there is
a potential conflict of laws. Suppose you buy a computer in New York, but when you
return to England it turns out to be faulty. You want to have it replaced, as would be
your right against the retailer in English law, but the US retailer refuses to respond. If
the matter comes to court, whose laws should apply – those of England, or those of the
USA? Suppose you go to live and work in the Middle East, meet someone and have a
child. If you later marry the person and return to live in London, whose laws determine
the validity of the marriage and the legitimacy of the child? Alternatively, if your
company sold unsatisfactory goods to a foreign country, and a judgment was made
against you there, could that judgment be enforced in England?

These are complex issues, particularly since there are many different countries with
different legal systems. In essence, whenever conflict of laws arises, the key issues are:

u Whose courts have jurisdiction?

u Whose laws are to be used?

u Can the judgment be enforced?

These questions are at the core of this module guide, and they range across every facet
of human activity in which the law may play a role.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the three questions that are asked by ‘conflict of laws’
u define what is meant by foreign law
u use the concepts and language of conflict of laws appropriately
u identify what aspects of a case will be considered procedural rather than
substantive.
Conflict of laws  1  Introduction page 3

1.1 What is ‘conflict of laws’?

1.1.1 The questions posed by conflict of laws

Conflict of laws is that part of English law which comes into operation whenever we
are confronted by a legal problem that has a foreign element. Foreign elements can be
of many kinds. For example, a contract may be made in France; it may require delivery
of goods to Canada. An accident may occur as a result of negligence in Italy: the driver
comes from Paris, the injured from England and they wish to pursue litigation in an
English court. A painting may be stolen from an art gallery in Dresden and sold by the
thief to an art dealer in Switzerland; the painting is now to be auctioned in London
and, not surprisingly, the Dresden gallery, having traced the painting, wants it back. An
English woman has gone through a ceremony of marriage in Pakistan; the marriage is
in polygamous form and she subsequently discovers her ‘husband’ has two other
wives. She wants to know her status: is she married or not and is her marriage
polygamous or monogamous? If he attempts to divorce her using a method
acceptable within his religion (the talaq), she wants to know what effect this will have
in England. These are just a few examples of foreign elements.† You will see as you †
What other problems can
study this subject that there are many others. you think of which have
foreign elements?
Conflict of laws poses three questions or, to put it another way, there are three main
aims of this subject. They are:

u To set out the conditions under which a court is competent to hear an action. This
is the question of jurisdiction.

u To determine by what law the rights of the parties are to be ascertained. In a

contract dispute, for example, it is necessary to determine the law governing the
contract (its ‘applicable law’). This is the question of choice of law.

u Where a dispute has been litigated in another country, to specify the circumstances
in which the foreign judgment can be recognised and enforced by action in England.
This is the question of recognition and enforcement of foreign judgments.

The first two questions must be asked and answered every time we are faced with a
problem which has a foreign element. The third question only arises where there is a
foreign judgment.

What is meant by ‘foreign law’?

For the purposes of conflict of laws the expression ‘foreign law’ (or ‘foreign system of
law’) means a legal system in a territory other than that in which the court functions.
So, as far as an English court is concerned, Scots law is no less foreign than French law
or the law of South Korea or the law in a Commonwealth country.

1.1.2 The concepts and language used

There is a clear structure to conflict of laws. It has a methodology, and this section will
introduce you to it. As we have already said, it will first have to be determined whether
the court has jurisdiction. The question of jurisdiction is highly significant and there
are complex rules (which will be discussed in later chapters). For the moment we will
assume that the English court has jurisdiction both over the parties and the cause of
action.

The next stage is to determine the juridical nature of the question that requires
a decision. For example, is it a question of breach of contract or the commission
of a tort? Is it a question about capacity to marry or one relating to whether the
appropriate formalities of marriage have been observed? Until this question is
answered, it is impossible to apply the appropriate rule for the choice of law and thus
to ascertain the applicable law. Therefore, it is essential to characterise the cause of
action. Is it contract or tort? Is it capacity (also known as essential validity) to marry
or formal validity of marriage? Having characterised (this is sometimes described as
‘classifying’), the court must select the legal system that governs the matter. Conflict
page 4 University of London
lawyers call this the lex causae (the law applicable to the dispute). This is the first of
a number of classical expressions in Latin which all students of Conflict of laws must
learn and use.

Connecting factors
The selection of the governing law is conditioned by what is called a connecting
factor. This varies with the facts and circumstances. For example, say a British
subject dies intestate, domiciled in Italy, and leaves shares in England and a house in
Scotland. The shares (which belong to a category of property called movables) will
be distributed according to his lex domicilii (the law of his domicile) – in other words,
according to Italian law. His house (which belongs to a category of property called
immovables) will be distributed according to the lex situs (the law of the place where
the property is situated) – which is the law of Scotland.

There are numerous connecting factors and you will learn and use these in the course
of studying this subject. It may be helpful if the main examples are set out here.

The main personal connecting factor in England is the lex domicilii (the law of the
domicile). Civil law jurisdictions (France, Germany, Italy, etc.) use instead the lex
patriae (the law of nationality). In English law there is also increasing use of residence,
particularly habitual residence, as a personal connecting factor. The personal
connecting factor is dominant in many questions of family law, for example where
someone has the capacity to marry. Not all family law questions are governed by it: for
example, if the question arises as to the validity of a marriage which does not comply
with the local law, this is referred to by a different connecting factor, the lex loci
celebrationis (the law of the place where the marriage is celebrated).

Other connecting factors include:

u lex fori (the law of the court in which the trial is taking place) (for example,
questions of procedure are so governed)

u lex contractus (the law which governs a contract): at common law this was
referred to as the proper law: under the Rome I Regulation it is referred to as the
‘applicable law’

u lex loci delicti (the law of the place where the tort was committed)

u lex loci actus (the law of the place where a transaction was carried out)

u lex incorporationis (the law of the place of incorporation): this governs assignments
of registered shares

u lex protectionis (the law under which legal protection of an intellectual property
right is conferred).

1.2 Procedure and substance

Core text
¢ Clarkson and Hill, Chapter 4 ‘Contractual obligations’, Section III ‘Determining
the applicable law’ and Section IV ‘The limits of the applicable law’: A
‘Introduction’ and B ‘Limits on freedom of choice’. (See Section 1.3 ‘Reading’.)

There is one aspect of conflict of laws in which the domestic law of the country
where the legal proceedings are taking place is dominant. All matters of procedure
are governed by the lex fori (in our case, English law). This means that a rule of
the lex causae which conflicts with it will not be applied. In simple terms, the lex
causae governs issues of substance, not those of procedure. Of course, a question of
characterisation may arise: is the issue one of procedure or of substance?
Conflict of laws  1  Introduction page 5

1.2.1 What matters are procedural?

You must grasp this distinction and have an understanding of which issues are regarded
as matters of procedure. We only offer an outline (a) because much of the detail is for
the practitioner rather than the student, and (b) because some of the questions (e.g.
damages) are easier to understand when substantive areas of law (e.g. torts) are studied.

By the end of this section you should, however, understand the distinction between
substance and procedure and its significance, and have an insight into the main issues
which English law regards as within the remit of its own law because it characterises
them as procedural.

Matters characterised as procedural include the following.

The nature of the remedy

The forum grants its own remedies. Nevertheless, English law will refuse a remedy if it
is so different from that provided by the lex causae as ‘to make the right sought to be
enforced a different right’ (Phrantzes v Argenti [1960] 2 QB 19, 36).

The method of enforcing a judgment

The lex fori determines what property of the defendant is available to satisfy the
judgment, and in what order. But in contract this is subject to the Rome I Regulation:
the applicable law governs, ‘within the limits of the powers conferred on the court by
its procedural law’, the consequences of breach, including the assessment of damages
insofar as it is governed by rules of law. (See also Chapter 8 ‘Contracts’.)

Parties
This is about who can sue and be sued. Thus, it has been held that proceedings cannot
be commenced in the name of a dead person even though this was possible by the
lex causae (Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB
682). However, if a foreign entity enjoys legal personality under the law where it was
established, it can participate in English proceedings. An example is the Indian temple
(‘little more than a pile of stones’) in Bumper Development Corp v Commissioner of Police
for the Metropolis [1991] 1 WLR 1362.

Evidence
This includes questions such as: whether a witness is competent or not, whether
something needs to be proved by writing or not, whether certain evidence proves
a certain fact or not or whether something is admissible as evidence. One area of
difficulty is presumptions. Irrebuttable presumptions of law (e.g. that in s.184 of the
Law of Property Act 1925 that the older person dies first) are rules of substance (Re
Cohn [1945] Ch 5). Many rebuttable presumptions (e.g. presumption of resulting trust)
are also rules of substance. It is less certain whether, for example, a presumption of
marriage or legitimacy is a rule of substance or one of procedure.

Damages
In contract the Rome I Regulation provides that assessment of damages is a matter for
the lex causae. In other cases, it is partly procedural and partly substantive. There is a
difference between remoteness and heads of damage (a matter for the lex causae) and
measure or qualification of damages (a matter for the lex fori). An example is the leading
common law tort case of Boys v Chaplin [1971] AC 356 (discussed in Chapter 9 ‘Torts’).

Statutes of limitations
At common law, this was regarded as procedural. The law was changed by the Foreign
Limitation Periods Act 1984 and it is now a substantive matter. However, realising that
an English court might encounter a very long limitation period (say 50 years) or a very
short one (say six months), s.2(1) of the Act provides that a court can refuse to apply a
foreign law which conflicts with English policy: the lex fori would then be applied. This
page 6 University of London
provision was invoked in a case where the foreign limitation period was 12 months and
the plaintiff had spent some of this time in hospital and had been led to believe her
claim would be met (Jones v Trollope Colls Cementation, The Times, 26 January 1990).

Self-assessment questions
1. Why do you think matters of procedure are governed by the lex fori? On what
basis should the characterisation of a rule be based? Look at Re Cohn [1945] Ch 5
or Leroux v Brown [1852] 12 CB 801.

2. What is the material scope of the Brussels I Regulation (Regulation 44/2001)?

3. F and D are domiciled in X. D is F’s daughter. D claims that by the law of X F is

under an obligation to provide her with a dowry. The amount of the dowry
is within the discretion and varies in accordance with F’s wealth and social
position and the number of his children, and with D’s behaviour. F is now in
England and D sues him. What problems will she have? Phrantzes v Argenti
[1960] 2 QB 19 may help you.

4. M, who is domiciled in Y, leaves by will movable property to her daughter, D,

who is also domiciled in Germany. M and D came to England as refugees. M and
D are killed in a car crash. It is uncertain which of them died first. By the law of
Y they are presumed to have died together. English law (see s.184 of the Law of
Property Act 1925) says M died first. Which rule will an English court apply? Look
at Re Cohn [1945] Ch 5.

5. A is injured in a road accident in Z caused by the negligence of an employee of

B and Co. She spends seven months in hospital. She then starts proceedings in
England within the three-year English limitation period, but after the expiry of
the one-year limitation period under the law of Z. Will the English court apply
the limitation period of the law of Z?

Summary
One question which the lex fori reserves for itself and thus excludes from the scope
of the lex causae concerns matters of procedure. There are characterisation problems
here (see Chapter 2), for it is by no means certain whether something is substantive or
procedural. In most areas, however, the law is fairly clear, as the examples given in this
chapter show.

1.3 Reading

Core texts
We recommend the following, and they are repeatedly referred to in the chapters that
follow. In subsequent chapters we will refer to these texts by their short form: ‘Clarkson
and Hill’, ‘Cheshire, North and Fawcett’, ‘Dicey, Morris and Collins’, ‘Hartley’, etc.

¢ Hill, J. and M. Ní Shúilleabháin Clarkson & Hill’s conflict of laws. (Oxford: University
Press, 2016) fifth edition [ISBN 9780198732297]. This is a straightforward
presentation of the subject (referred to as Clarkson and Hill throughout the
module guide.

¢ Torremans, P. et al. (eds) Cheshire, North & Fawcett: private international law.
(Oxford: Oxford University Press, 2017) 15th edition [ISBN 9780199678990]. This is
much more detailed and more rigorously analytical. But is also more difficult for
a beginner (referred to as Cheshire, North and Fawcett throughout the module
guide.

Other useful textbooks

¢ Briggs, A. The conflict of laws. (Oxford: Oxford University Press, 2019) fourth
edition [ISBN 9780198845232] (available in VLeBooks via the Online Library).
‘Briggs’ is short, very thoughtful and excellent once you have grasped the detail
Conflict of laws  1  Introduction page 7
from Clarkson and Hill or Cheshire, North and Fawcett. It is a perfect revision
instrument and will stretch your thinking.

¢ Hartley, T.C. International commercial litigation: text, cases and materials on

private international law. (Cambridge: Cambridge University Press, 2020)
third edition [ISBN 9781108721134] (available in Cambridge Core via the Online
Library). This book makes very interesting reading on issues of jurisdiction as it
provides a detailed analysis of the Brussels Regulation (recast).

¢ Rogerson, P. Collier’s conflict of laws. (Cambridge: Cambridge University Press,

2013) fourth edition [ISBN 9780521735056].
‘Collier’ is an alternative to Clarkson and Hill. It is very student-friendly, written
in a lively style. It is not as comprehensive as Clarkson and Hill or Cheshire, North
and Fawcett.

Practitioner text
¢ Lord Collins of Mapesbury and J. Harris (eds) Dicey, Morris & Collins: the conflict of
laws. (London: Sweet & Maxwell, 2022) 16th edition [ISBN 9780414102040].
Dicey, Morris & Collins is excellent for reference purposes; there are regular
supplements to the two bulky volumes (the supplements are themselves
substantial, and have their own ISBNs). It is to be hoped that you will be able to
access it in a local university library, as it is very expensive.

Cases
You should read as many cases as you can, and certainly those indicated in this text. As
you study, think about the rules, the principles underlying them and the policies they
uphold. Conflict of laws is both practical and highly academic, and often the answers
are not clear beyond question. Think about the alternatives: the textbook will help you
to do this. You will find, for example, that different books are impressed by different
arguments. Weigh up these arguments, and see what conclusions you come to.

New cases are reported in:

¢ Lloyd’s Law Reports

¢ All England Reports (particularly their Commercial Reports and European

Reports)

¢ Weekly Law Reports.

The Regulations and Conventions

You will discover that there are major Regulations and Conventions in conflict of laws;
for example, in matters of jurisdiction we will be looking at the Brussels Regulation
(recast) and the Lugano Conventions. Although these are largely superseded by the EU
Council Regulation 44/2001, the Rapporteurs’ Report is useful. You can find this in the
Official Journal of the European Communities [1979] OJC 59.

In relation to contract you will study the Rome Convention and again the Report of the
Rapporteurs (Giuliano and Lagarde) is very useful. You can find this at [1980] OJC 282; it
is also in Plender, R. European contracts convention at pp.243–93. There are now also two
Rome Regulations (I and II). ‘I’ supersedes the Rome Convention, and ‘II’ applies to non-
contractual obligations, principally to tort.

1.4 The impact of Brexit on conflict of laws: the position so far

The withdrawal of the UK from the European Union (EU) is bound to have a significant
impact on aspects of English conflict of laws, such as choice of applicable law,
jurisdiction and recognition and enforcement of foreign judgments. Conversely, other
areas like arbitration, including enforcement of arbitral awards, are not affected by
Brexit.

When it comes to choice of law, the relevant pre-Brexit rules were contained in the
page 8 University of London
Rome I Regulation (for disputes arising out of contractual obligations) and the Rome
II Regulation (for disputes arising out of non-contractual obligations). Post-Brexit
and under the Withdrawal Agreement, these instruments will continue to govern
contracts or harmful events occurring before the end of the implementation period
(31 December 2020). After that date, the position will probably not change, as the
provisions of the Rome I and II Regulations are of universal application. This means
that EU Member States must generally respect clauses of this nature, irrespective of
whether the applicable law is that of an EU Member State or of a third country. As far
as the UK is concerned, both Rome I and II Regulations are now retained EU law. This
means that both EU Member States and UK courts will continue to uphold English and
other UK-applicable law clauses.

In terms of jurisdiction, the Withdrawal Agreement provided that the Brussels I

Recast Regulation will govern UK proceedings that were initiated before the end of
the implementation period. As the Withdrawal Agreement does not include similar
transitional provisions in respect of the Lugano Convention, it is unclear whether
this would be the case for Switzerland, Norway and Iceland. The UK has made a
commitment to apply the Lugano Convention rules to proceedings initiated before
the end of the implementation period but it is not yet known what the approach of
the other Lugano Convention parties will be. From 1 January 2021, these international
arrangements no longer apply to the UK as the Brussels I Recast Regulation and Lugano
Convention operate on the basis of mutual reciprocity between states. In the absence
of a new agreement mirroring the Brussels I Recast Regulation, one option available
to the UK to deal with this problem would be to apply to join the Lugano Convention
in its own right. The problem with this approach, however, is that all contracting
parties, including the EU, must consent to inviting the UK to join the Convention. As
the European Commission has formally objected to extend such an invitation, the
situation, as things stand, remains unclear. It should be noted that, from 1 January 2021,
the UK has acceded to the Hague Convention in its own right. Whether this means
that the Hague Convention provides protection in relation to exclusive jurisdiction
clauses entered before that date but since 1 October 2015 (when the UK was a party
to the Hague Convention through its EU membership), or whether it will only apply to
exclusive jurisdiction clauses entered on or after 1 January 2021, is still under debate.

The Brussels I Recast Regulation and the Lugano Convention were also the main
pre-Brexit instruments in respect of the enforcement of judgments. The Regulation
will continue to apply to the enforcement of judgments given in proceedings that
were initiated prior to the exit date. The position on the enforcement of Lugano
Convention judgments remains, however, unclear as the stance of the Lugano states
on the issue is still unknown. From 1 January 2021, it looks as if the enforcement of UK
judgments in the EU and Lugano Convention contracting states will become more
complicated. The Hague Convention (despite its limitations) may be of assistance in
these circumstances in that it generally requires any judgment granted by the court
specified in an exclusive jurisdiction clause to be recognised and enforced in other
contracting states.

Activities 1.1–1.7
1.1 What is the nature and scope of conflict of laws?

1.2 What is meant by the question of jurisdiction? Try to think of a problem that
may require the application of more than one foreign law.

1.3 What do you understand by ‘choice of law’?

1.4 In England is the law of Northern Ireland considered to be foreign law?

1.5 In New York what is the status of the law of Illinois?

1.6 Explain lex causae and lex fori.

1.7 What do you understand by ‘connecting factor’?

Conflict of laws  1  Introduction page 9

Reminder of learning outcomes

By this stage you should be able to:
u explain the three questions that are asked by ‘conflict of laws’
u define what is meant by ‘foreign law’
u use the concepts and language of conflict of laws appropriately
u identify what aspects of a case will be considered procedural rather than
substantive.
Good luck with your studies.

Michael Freeman and Manos Maganaris

page 10 University of London

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain the three questions that are asked by

‘conflict of laws’   

I can define what is meant by foreign law

  
I can use the concepts and language of conflict of
laws appropriately   

I can identify what aspects of a case will be

considered procedural rather than substantive.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must revise Revision
done

1.1 What is ‘conflict of laws’?  

1.2 Procedure and substance  

1.3 Reading  

1.4 The impact of Brexit on conflict of laws: the position so far  

2 Fundamental concepts and issues

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2.1 Characterisation – an illustration: Ogden v Ogden . . . . . . . . . . . . . 13

2.2 The difficulties that arise with characterisation . . . . . . . . . . . . . . 13

2.3 The ‘incidental question’ . . . . . . . . . . . . . . . . . . . . . . . . . 15

2.4 Renvoi: an explanation . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2.5 Public policy and the exclusion of foreign law . . . . . . . . . . . . . . 19

2.6 Penal, revenue and other public laws . . . . . . . . . . . . . . . . . . . 22

2.7 Proof of foreign law . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

page 12 University of London

Introduction
This chapter introduces you first to the problem of characterisation. It is a difficult
subject, not made easier by the fact that English courts have not always characterised
in the same way. You will note that ‘characterisation’ is also called ‘classification’. It is
a basic analytical tool, which is discussed here for this reason. It is a concept you will
come to understand better as you familiarise yourself with the subject. This chapter
also deals with what is meant by an incidental question – a question that arises in
connection with the major question in a case – and the approaches that exist to
answering it.

Another important problem arises with renvoi (French for ‘sending back’). We need to
explain what is meant by ‘law’ when a reference is made to foreign law; for example,
does a reference to ‘French law’ mean French internal law, or the whole of French
law, including its conflict of laws rules? The word ‘law’ is ambiguous and a number of
approaches have been suggested. Different models of renvoi will be discussed.

A further issue is public policy in the conflict of laws and its relationship to human
rights. Public policy can arise in any area but two areas in particular cause problems,
namely status and contract. These are singled out for treatment in Section 2.5 which
deals with the exclusion of foreign law. In addition to the public policy ground, English
courts have refused to entertain actions for the enforcement of penal, revenue and
other public laws of foreign states. We explore the basis for these exclusions and
analyse what each of the headings involves.

Finally, Section 2.7 teaches us how we conceptualise foreign law – as fact – and how
it is proved in an English court. Many cases which have foreign elements are litigated
without any reference to foreign law, either because it is not pleaded or because it is
not proved. An example with which you will be familiar (from contract law) is Suisse
Atlantique [1967] 1 AC 361.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the purpose of characterisation (classification) and indicate the basis on
which English courts characterise cases
u indicate where the principal difficulties in characterisation arise
u explain what is meant by ‘the incidental question’ with examples from the case
law and describe ways to solve the incidental question
u explain the ambiguity of a reference to a foreign ‘law’ and describe the different
approaches to unravelling this
u describe the different concepts of renvoi and give examples from cases
u explain the role of public policy in the conflict of laws
u indicate areas where the Human Rights Act 1998 may influence the application of
public policy in the conflict of laws
u appreciate the role of the Human Rights Act where there is a fundamental breach
of international law
u explain why English courts refuse to enforce certain laws of foreign states
u identify and give examples of the areas in which such exclusions are made
u explain the implications of regarding foreign law as fact
u explain how foreign laws must be proved in an English court and state who is
competent to give expert evidence on a matter of foreign law.
Conflict of laws  2  Fundamental concepts and issues page 13

2.1 Characterisation – an illustration: Ogden v Ogden

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’,
B.3(A)(ii)(a) ‘The lex fori’.

Essential reading
¢ Case: Ogden v Ogden [1908] P 46.

We will start with an illustration drawn from the notorious case of Ogden v Ogden. A
domiciled Frenchman, who was 19, married a domiciled English woman in England
without first obtaining the consent of his surviving parent, which he was required
to do by Article 148 of the French Civil Code. The husband obtained an annulment
of the marriage in a French court on the ground of want of consent. The wife then
went through a ceremony of marriage in England with a domiciled Englishman. The
second ‘husband’ petitioned for a decree of nullity on the ground that at the time of
the ceremony his ‘wife’ was still married to the Frenchman.The court had to decide
whether the first marriage was valid. There were two connecting factors: the husband
was domiciled in France; the marriage was solemnised in England. This indicates the
existence of two rules:

u the essential validity of the marriage (that is, the husband’s capacity) must be
governed by French law

u the formal validity of the marriage ceremony is determined by English law.

So what the English court had to decide was whether the French law, the purpose
of which was to protect French minors from marrying without parental permission,
applied to a marriage in England. If the French rule was characterised as within matters
of essential validity it would apply to marriages wherever they were celebrated and
the marriage in England would accordingly be void. The second marriage would then,
of course, be valid. If, on the other hand, it was characterised as a matter of formal
validity, it would be governed by the lex loci celebrationis (English law) and the first
marriage would be valid (English law rules that a marriage of a minor without parental
consent is valid). The English court would therefore come to a different conclusion
from the French court. It would, of course, enable the second husband to extricate
himself from his marriage (which would be bigamous).

The Court of Appeal concluded that the French rule was formal. Indeed, it suggested
that every rule requiring parental consent to a marriage must be characterised as
formal. The result was that Mrs Ogden was in the eyes of English law not Mrs Ogden but
the wife of a Frenchman. Of course, French law denied this: if asked it would say she
was married to her second husband.

Characterisation is not some abstract academic game. Think of the consequences

that it had here. The woman in this case ends up as married to two different men on
different sides of the Channel. In France, she is married to an Englishman, who does
not want her. In England, she is married to a Frenchman, who does not want her. And
in 1908 it was probably worse than this because at that time (but not now) married
women automatically acquired their husband’s domicile. So, according to English
law, she was domiciled in France and an English court would have lacked jurisdiction
to dissolve her marriage. Nor, it is thought, would a French court have been prepared
to dissolve her English marriage. So it is distinctly possible that a woman married to
different men in different jurisdictions could do nothing further about her status and,
presumably, could never marry again.

2.2 The difficulties that arise with characterisation

Let us look again at what characterisation involves. It requires us to allocate the
question in issue to its correct legal category. Its goal is to reveal the relevant rule for
the choice of law. In most cases the answer will be clear: there will be no dispute that
the case is concerned with breach of contract or succession to movables.
page 14 University of London
The difficulties occur:

u in penumbral cases, rather than those found within the core; Hart in (1958) 71
Harvard Law Review 615 discusses the difference

u where English law and the relevant foreign law do not agree on what the correct
characterisation is

u where the concept is unknown in English law: how, for example, is an English court
to characterise ‘deferred dower’ as property or as maintenance? (see Shahnaz v
Rizwan [1965] 1 Q B 390). Similarly, courts in civil law countries have had difficulties
with the English trust concept.

2.2.1 What basis for characterisation?

Lex fori
The question is how English courts characterise. In Ogden v Ogden the Court of Appeal
characterised the rule in the French Civil Code according to the lex fori. As Dicey, Morris
and Collins (p.35) point out:

The principal argument put forward in favour of this view is that if the foreign law is
allowed to determine in what situations it is to be applied, the law of the forum† [lex fori] †
Forum (Latin) = public place.
would lose all control over the application of its own conflicts rules, and would no longer In legal terms it means the
be master in its own home. state in which a case is being
heard.
The problem is that it may lead to the forum refusing to apply a rule of foreign law
which would be applicable if it were properly understood, as happened in Ogden v
Ogden. It might also apply a rule of a foreign system where according to that law it
is not applicable: the result would be that the law applied would be neither the law
of the foreign system nor that of England. The lex fori approach also stumbles where
there is no equivalent or close analogy in the forum to the rule of foreign law. What,
for example, is an English court to do when it is asked to adjudicate on the French
institution of community of property, as it did in De Nicols v Curlier [1900] AC 21?

Lex causae
An alternative approach is to characterise in accordance with the lex causae, that is,
the appropriate foreign law. According to one leading thinker, ‘every legal rule takes its
classification from the legal system to which it belongs’ (Wolff, M. Private international
law. (Oxford: Clarendon Press, 1950) second edition, p.154). Re Maldonado [1953] 2 All ER
300 p.223 is often cited as an example of this. The argument for this approach is that
to say that the foreign law is to govern and then not to apply its characterisation is
tantamount to not applying it at all. This is superficially convincing but it is arguing in
a circle to say that the foreign law governs the process of characterisation before the
process of characterisation has led to the selection of the appropriate legal system.
Also, it must not be overlooked that the potential conflict may not be between English
law and a foreign system, but between two potentially applicable foreign laws: how
and why are we to choose one rather than the other?

An examination of Re Maldonado will reveal some of the difficulties. It concerned a

woman domiciled in Spain who died intestate and without living relatives. She left
movable property in England and this was claimed by both the Spanish Government
and the British Crown. This raised the question of whether the applicable law was
Spanish law (which said it went to the Spanish State) or English law (under which
it went to the Crown). This in turn depended upon whether it was a question of
succession to movables (in which case the Spanish rule would apply) or whether it
raised a question of bona vacantia (ownerless property), in which case it would be
covered by the rule that title to property is governed by the lex situs, and this would
lead to the application of English law. The Court of Appeal held that since, under
Spanish law, the Spanish State succeeded to the property as the ‘final heir’, it was
entitled to the movables in England. The property was never ownerless with the
result that English rule never came into the picture. Had the Spanish State claimed
Conflict of laws  2  Fundamental concepts and issues page 15
as bona vacantia, the position would have been different. The decision looks right;
the approach certainly seems preferable to that adopted in Ogden v Ogden. But the
difference between the two rules is only verbal. And, as Dicey, Morris and Collins argue
(p.40), ‘is it desirable that the right to property in England should depend on a verbal
formulation with no real content?’.

2.2.2 Other cases

There are a number of cases in which questions of characterisation have come before the
English courts. Some of these are discussed at relevant points in this module guide. You
might like to look at: Re Hoyles [1911] 1 Ch 179; Re Wilks [1935] Ch 645; Re Priest [1944] Ch 58;
Re Cohn [1945] Ch 5; Apt v Apt [1948] P 83; Macmillan Inc v Bishopsgate Investment Trust plc
[1996] 1 All ER 585; Raiffeisen Zentralbank v Five Star General Trading [2001] QB 825.

Unfortunately, the cases give little indication of the method of characterisation

used by the court to reach its conclusion. However, in one of the more recent cases
(Macmillan Inc v Bishopsgate Investment Trust plc) there is a quite lengthy discussion.
Auld LJ accepted that ‘the proper approach is to look beyond the formulation of the
claim and to identify according to the lex fori the true issue or issues thrown up by the
claim and the defence’. Looked at in this way, characterisation is ‘a process of refining
English conflict rules by expressing them with greater precision’ (Dicey, Morris and
Collins, p.52). So, if the rule says ‘succession to movables is governed by the lex domicilii
of the deceased’, characterisation involves deciding which issues should be governed
by the lex domicilii. ‘Succession’ is a compendious term which embraces a bundle of
issues that are regarded as appropriate for determination by the lex domicilii.

Activities 2.1–2.4
2.1 Explain ‘characterisation’.

2.2 When are questions of characterisation most likely to arise?

2.3 Do the English cases adopt any particular theory of characterisation? Are they
consistent?

2.4 What is wrong with characterising according to the lex fori?

Summary
Although characterisation is ever-present in conflict of laws, it is apparent most often
where there is disagreement between English law and foreign law on the correct
classification of an issue, and where the English court is confronted by a concept it
does not know. Bad characterisation, as happened in Ogden v Ogden, can have serious
consequences, as is evident from that case.

Reminder of learning outcomes

By this stage you should be able to:
u explain the purpose of characterisation (classification) and indicate the basis on
which English courts characterise cases
u indicate where the principal difficulties in characterisation arise.

2.3 The ‘incidental question’

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’,
B.3(D) ‘The incidental question’.

Essential reading
¢ Gotlieb, A.E. ‘The incidental question revisited – theory and practice in the
conflict of laws’ (1977) 26 ICLQ 734 (available in HeinOnline and JSTOR via the
Online Libary).
page 16 University of London
An incidental question is one that arises in connection with the major question in a
case. Thus while the main question may be succession, we also need to know whether
the person claiming as the deceased’s widow is indeed his widow. The incidental
question here would be the validity of the marriage.

The best way to understand the incidental question is to give an example. Suppose
a Greek national dies domiciled in Greece leaving movables in England. The English
rule would refer the distribution of this part of his estate to Greek law. Suppose also
that under Greek law his widow is entitled to a proportion of his estate. The marriage
was in England and, though valid by English domestic law (which an English court
would apply since it is the lex loci celebrationis), is void by Greek domestic law (which
is applicable under Greek conflict of laws rules) because no Greek priest was present
at the ceremony. Should the widow’s claim be determined by the English or Greek
conflict rule? There are different views:

u on one view, the widow should not be permitted to share in the estate because
otherwise full effect would not be given to the English conflict rule that succession
to movables is governed by Greek law

u on another view, she should be permitted to do so otherwise full effect would not
be given to the English conflict rule that the validity of the marriage is governed by
English law.

The incidental question is rarely found in the cases. The most obvious examples are
found in divorce and remarriage cases. Two will be cited to illustrate the problem
further.

Schwebel v Ungar
The facts of Schwebel v Ungar [1964] 48 DLR (2d) 644 (a Canadian Supreme Court
decision) are that a Jewish husband and wife domiciled in Hungary married in Hungary.
They later decided to emigrate to Israel. While en route in Italy the husband divorced
his wife by issuing a Jewish bill of divorcement (known as a ‘get’). Under the law of
Hungary (their domicile) and Italian law, the divorce was invalid, but it was recognised
by the law of Israel. They acquired a domicile of choice in Israel. Subsequently, the wife
went to Toronto and, while she was still domiciled in Israel, married a second husband.
He brought proceedings for nullity on the ground that the marriage was bigamous.
The Supreme Court of Canada held that the marriage was valid. There are different
interpretations of this case (you may consult Dicey, Morris and Collins, pp.54–56), but it
is possible that what the court was doing was upholding the second marriage without
recognising the divorce. If this is right, it means that the court decided the incidental
question (the validity of the divorce) by the conflict rules of Israel, the country whose
law governed the main question (the wife’s capacity to marry).

Lawrence v Lawrence
The facts of Lawrence v Lawrence [1985] Fam 106 are that the first husband and his wife
married in Brazil. Subsequently, the wife divorced the husband in Nevada (this was
not recognised in Brazil) and the next day married the second husband in Nevada. The
second husband petitioned for a declaration as to the validity of this second marriage.
The incidental question arose from the fact that, under Brazilian law – the law of the
wife’s domicile – to which English choice of law rules referred capacity to marry, she
lacked capacity to marry the second husband. The Court of Appeal (by a number of
routes which will be discussed later in this guide) upheld the validity of the second
marriage. They did this by giving primacy to the divorce recognition issue at the
expense of that of capacity to marry.

You will have noted that for an incidental question to arise:

u there must be a main issue governed (under English conflict rules) by a foreign law

u there must be a subsidiary question involving a foreign element which has its own
choice of law rule (this could have arisen separately)
Conflict of laws  2  Fundamental concepts and issues page 17
u this choice of law rule should lead to a conclusion different from that which would
have been reached had the law governing the main question been applied.

There are different views on the solution to adopt. Lipstein (see [1972 B] CLJ 67, 90–96)
favours the law governing the main issue. Dicey, Morris and Collins (p.59) believe that
the determination of the problem will depend on the nature of the individual case and
the policy of the forum towards this.

Self-assessment question
On the facts of Schwebel v Ungar:
u If the wife had petitioned the courts of Ontario for a declaration that her divorce
was valid, what do you think they would have ruled?
u If after the second marriage the husband had petitioned for a declaration of
status, the courts would have ruled that he was still married. What implications
would this have had for the wife?

Activities 2.5 and 2.6

2.5 When does an incidental question arise?
2.6 What is a court to do when confronted with an incidental question?

Summary
Not every conflict of laws problem will hinge on a single issue. Sometimes a further
question will be posed. Should this further (incidental) question be referred to the
same law that governs the main issue, or to a different rule? There is no categorical
answer to this, and different views have been expressed both by authors and within
the case law.

Reminder of learning outcomes

By this stage you should be able to:
u explain what is meant by ‘the incidental question’ with examples from the case
law and describe ways to solve the incidental question.

2.4 Renvoi: an explanation

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’, B.3(C).

Essential reading
¢ Briggs, pp.17–21 (available in VLeBooks via the Online Library).

¢ Briggs, A. ‘In praise and defence of renvoi’ (1998) 47 ICLQ 877 (available in
multiple Online Library databases).

When it is decided that an issue is governed by the law of a particular country, what is
the meaning to be given to the word ‘law’? When an English court decides that the lex
causae is French law, does this mean the rules of French domestic law, as these would
apply to a wholly internal case, or does it refer to law in its wider sense, including
French conflict of laws rules? This ambiguity in the expression ‘French law’ gives rise to
the difficult problem of renvoi.

2.4.1 Approaches to renvoi

The problem may be understood best by using an illustration. Suppose T dies intestate
and a question arises concerning succession to his estate. T is British but has died
domiciled in France. English conflict rules say that succession to his movables is
governed by French law as this was his domicile. Suppose that by French domestic
law, A would succeed to the estate, but that according to French conflict of laws
rules, succession would be governed by the lex patriae and this is the law of England.
Suppose also that as a matter of English domestic law, B would succeed. What is the
page 18 University of London
court to do? There are three possibilities.

First, the court might apply the French domestic rule. This would require proof of the
domestic law of France, but not of its conflict rules. If this were done, the court would
find in favour of A. This is simple and, some might add, rational (see Re Annesley [1926]
Ch 692, 708–09; Re Askew [1930] 2 Ch 259, 278).

Second, the court might interpret the choice of law rule as pointing to French law,
including its conflict of laws rules. This would refer back to English law. The court
could then interpret this as being English domestic law and find for B. This is known as
‘accepting the renvoi’. This method requires proof of the conflict rules for the foreign
country, but it does not require proof of the foreign rules about renvoi. It is usually
called the theory of ‘single’ or ‘double’ renvoi. There are famous French authorities
supporting this view (Forgo’s case in 1883 and Soulié’s case in 1910) and Article 27 of
the Introductory Law of the German Civil Code of 1900 also enjoins it. Forgo’s case is
discussed by Cheshire, North and Fawcett, p.59.

Third, the court might decide the case in the same way as it would be decided by the
French court. So, if the French court would refer to English law and would interpret
that reference to mean English domestic law, then the English court would apply
English domestic law. If, on the other hand, the French court would refer to English law
and interpret that reference to mean English conflict of laws, and would ‘accept the
renvoi’ from English law and apply French domestic law, then the English court would
apply French domestic law. This method requires proof not only of the conflict rule
of the foreign country (in this case relating to succession), but also the foreign rules
about renvoi. This approach represents the present doctrine of the English courts. It is
usually called the theory of ‘total’ or ‘double’ renvoi.

2.4.2 Application of renvoi

The doctrine has been applied to:

u formal and intrinsic validity of wills

u cases of intestate succession

u legitimation by subsequent marriage.

There are indications that it might apply to:

u formal validity of marriage

u capacity to marry

u matrimonial property.

It should be stressed that it does not apply in the fields of contract or in relation to
torts (see Private International Law (Miscellaneous Provisions) Act 1995 s.9 (5) and now
Article 24 of the Rome II Regulation).

The principal difficulties

There are three main difficulties in the application of the English doctrine.

u It makes everything depend of the evidence of foreign experts. It requires proof

not only of foreign choice of law rules, but of foreign rules about renvoi. See Wynn-
Parry J’s comment in Re Duke of Wellington [1947] Ch 506, 515.

u The problem of a reference to the national law of a British citizen. It seems that
Continental lawyers do not always understand the difference between ‘British’ and
‘English’. In Re Askew, for example, the expert witness stated: ‘I am informed and
believe that John Bertram Askew was an Englishman (sic). Therefore, English law
would be applied by the German court’ ([1930] 2 Ch 259, 276).

u There may be an inextricable circle. The effect of applying the doctrine of total
renvoi is to make the decision turn on whether the foreign court rejects the
renvoi doctrine or adopts a theory of single or partial renvoi. But if the foreign
court also adopts the doctrine of total renvoi, then logically no solution is possible
Conflict of laws  2  Fundamental concepts and issues page 19
unless either the English or the foreign court abandons its theory, for otherwise a
perpetual circulus inextricabilis is constituted. As Dicey, Morris and Collins remark
(p.88), ‘It is hardly an argument for the doctrine of total renvoi that it is workable
only if the other country rejects it.’

Self-assessment questions
1. Should the doctrine of renvoi be abolished so that any reference to a foreign
system of law is a reference solely to its domestic law?

Why do you think renvoi is ruled out in contract and tort cases?

Do you think the difficulties of applying total renvoi have been exaggerated?

2. H and W are Polish nationals domiciled in Poland. They marry in Italy in

accordance with a form prescribed by Polish domestic law, but not in a form
prescribed by Italian domestic law. Evidence is given that the Italian courts
would recognise a marriage celebrated in Italy in accordance with the forms
prescribed by the law of the parties’ common nationality. H and W have now
come to England and H claims he is not married to W. What do you think an
English court would do? (Look at Taczanowska v Taczanowski [1957] P 301.)

3. Mrs Smith is a British citizen, domiciled in England. Her husband got a job in
China working for a branch of an English corporation in Beijing. She was injured
at their residence in Beijing provided by the employer. She is suing the employer
in England in contract and tort. If Chinese law includes its conflict of laws rules,
it will confer discretion on the English court to apply English substantive law,
which has a more generous limitation period. What should the English court do?
You may get assistance from Cheshire, North and Fawcett, pp.68–69.

Summary
Where reference is made to a foreign law, this could be interpreted as a reference to
the law it would apply in a case without a foreign element, or to the whole of its law
including its conflict of laws rules. If it is the latter, this might refer back (renvoi) to
the first system. This could go on forever! So what are we to do to solve this? Different
theories have developed to tackle the puzzle. But is renvoi a good idea? There are
different views on this, as you will have gathered if you have read Briggs.

Reminder of learning outcomes

By this stage you should be able to:
u explain the ambiguity of a reference to a foreign ‘law’ and describe the different
approaches to unravelling this
u describe the different concepts of renvoi and give examples from cases.

2.5 Public policy and the exclusion of foreign law

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’, B.1
‘Rationale of choice of law rules’.

Essential reading
¢ Carter, P. ‘The role of public policy in English conflicts of law’ (1993) 42 ICLQ 1
(available multiple Online Library databases).

An English court will not apply a foreign law, otherwise applicable according to English
rules of the conflict of laws, if the law, or the result of its application, is contrary to
public policy. As Lord Simon of Glaisdale put it in Vervaeke v Smith [1983] 1 AC 145, 164:
There is abundant authority that an English court will decline to recognise or apply what
would otherwise be the appropriate foreign rule of law when to do so would be against
English public policy.
page 20 University of London
In the conflict of laws it is obviously necessary that public policy be kept within limits,
for otherwise the whole basis of the system is liable to be frustrated. The courts should
be, and are, therefore slower to invoke public policy in cases involving a foreign
element than when a domestic legal issue is involved. That said, it must be stressed
that with the Human Rights Act 1998 now in operation we may expect English courts
to adopt a broader concept of public policy than before. Thus, as Briggs observes:
It has not yet been held that a rule of foreign law which allows a husband to divorce his
wife, but not vice versa, should not be recognised, but discrimination between the sexes is
hardly more acceptable than that between the races.

Are the Islamic talaq and the Jewish get now contrary to public policy? Or will the
courts tread warily so as to avoid the suspicion of discriminating against religions?
Insight into attitudes taken by English courts may be sought in Oppenheimer v
Cattermole [1976] AC 249 (Nazi law depriving absent German Jews of their nationality
and confiscating their property said to be ‘so grave an infringement of human rights
that the courts of this country ought to refuse to recognise it as law at all’ per Lord
Cross at p.278). See also Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC
368, 428 per Lord Templeman.

What is usually in question is not the foreign law as such, but the results of its
recognition or enforcement in England in a particular case. Thus even in the days when
English law set its face against polygamy – it takes a more liberal view now – it treated
the children of a polygamous marriage as legitimate (see Bamgbose v Daniel [1955] AC
107) and wives were allowed to assert rights of succession on the grounds that they
were wives (Coleman v Shang [1961] AC 481; Re Sehota [1978] 1 WLR 1506).

Public policy may not only induce a court to refuse to recognise or enforce a contract
or a marriage, etc. which is valid under applicable foreign law. It may also lead to
its enforcement or recognition: that is, we must enforce what is invalid under its
applicable foreign law. For example, foreign legislation which invalidates a contract
or a marriage may be disregarded if it is penal or discriminatory. If foreign exchange
control legislation is passed as ‘an instrument of oppression’ it may be disregarded on
grounds of public policy (Re Helbert Wagg & Co Ltd [1956] Ch 323, 351).

Public policy can be invoked in any area of conflict of laws. We will see it subsequently
in relation to the recognition and enforcement of foreign judgments. Here we will
concentrate on its role in two areas: contract and status.

2.5.1 Public policy and contract law

At common law English courts have refused to enforce:
†
u champertous† contracts (Trendtex Trading Corpn v Crédit Suisse [1982] AC 679) Champertous: from
champerty, a situation where
u contracts in restraint of trade someone helps to finance
u contracts involving trading with the enemy (Dynamit AG v Rio Tinto Co [1918] AC 260) a legal action in return for a
share of any damages won.
u contracts breaking the laws of friendly foreign countries (Foster v Driscoll [1929] 1 KB 470).

In each case the contract was valid under its applicable law. On the other hand, a
foreign contract made without consideration will be enforced in England (Re Bonacina
[1912] 2 Ch 394). The fact that it is contrary to the common law does not make it
contrary to public policy. Article 16 of the Rome Convention and now Act 21 of Rome
I Regulation provide that the application of the law of any country may be refused if
its application is manifestly incompatible with English public policy. Note the word
‘manifestly’, suggesting a very limited role for public policy in this area. The cases
just discussed are good instances of manifest incompatibility. This subject is further
discussed in Chapter 8 ‘Contracts’.

2.5.2 Public policy and status

The courts have said or held that incapacities imposed on account of slavery (most
famously in Somersett’s case [1771] 20 St Tr 1), religion or religious vocation (Re Metcalfe’s
Trusts [1864] 2 De G J & S 122), alien nationality (Re Helbert Wagg & Co Ltd [1956] Ch 323,
Conflict of laws  2  Fundamental concepts and issues page 21
345–46), race (Oppenheimer v Cattermole [1976] AC 249, 265, 276–78, 282–83), divorce
(Scott v AG [1886] 11 P D 128), physical incompetence (Re Langley’s Settlement [1962] Ch
541, 556–57) and prodigality (Worms v De Valdor [1880] 49L J Ch 261 and Re Selot’s Trusts
[1902] 1 Ch 488) will be disregarded. Public policy may also require that a capacity
existing under a foreign law should be disregarded in England: see to this effect Cheni
v Cheni [1965] P 85, 98, though in this case a law which allowed a marriage between an
uncle and a niece was not regarded as so objectionable as to be overridden by English
public policy when the marriage had nothing to do with England. In Mohamed v Knott
[1969] 1 QB 1, a marriage with a girl of 13 in Northern Nigeria was recognised as valid in
England (both spouses were domiciled in Nigeria).

Courts have also said they have ‘residual discretion’ to refuse to recognise a foreign
status conferred or imposed upon a person by the law of his domicile or a foreign
decree of divorce or nullity of marriage granted by a foreign court (see Gray v Formosa
[1963] P 259 at 269, 270, 271 and Lepre v Lepre [1965] P 52, 63). This may be criticised.
Thus Grodecki ((1962) 11 ICLQ 578, 582) commented:

to state the law in terms of judicial discretion… is to admit that no certainty or

predictability is attainable in this matter.

2.5.3 Public policy and international law

It is part of English public policy that the courts should give effect to clearly
established rules of international law.

The best illustration of this is Kuwait Airways Corporation v Iraq Airways Co (Nos 4 and 5)
[2002] 2 AC 883. Following the invasion of Kuwait by Iraq in 1990, aircraft belonging to
KAC were seized and flown by IAC to Iraq. The Revolutionary Command Council of Iraq
purported to divest KAC of its title to its aircraft and transfer this to IAC. KAC brought
proceedings in England for the return of the aircraft or payment of their value, and for
damages. The House of Lords held that it is legitimate for an English court to have regard
to the content of international law when deciding whether to recognise a foreign law.
The acceptability of a foreign law must be judged by contemporary standards. Iraq’s
invasion of Kuwait and the seizure of its assets were gross violations of established rules
of international law of fundamental importance. So recognition or enforcement of the
expropriatory decree were manifestly contrary to the public policy of English law.

Where there was a fundamental breach of international law, no connection was

needed with England for the public policy exception to operate, since it is not based
on a principle of public policy which is domestic in character. In this case public policy
operated as an exception to the tort choice of law rules.

For further discussion, see Rogerson (2003) 56 Current Legal Problems 265.

Summary
English courts will not apply a foreign law if the law, or the result of its application, is
contrary to public policy. Public policy is used sparingly, for otherwise it could undermine
the whole rationale of conflict of laws. Its application can be seen by examining its role in
relation to contract and to status, and in relation to international law.

Reminder of learning outcomes

By this stage you should be able to:
u explain the role of public policy in the conflict of laws
u indicate areas where the Human Rights Act 1998 may influence the application of
public policy in the conflict of laws
u appreciate the role of the Human Rights Act where there is a fundamental breach
of international law.

Self-assessment questions
1. Define public policy. Does this doctrine have any dangers?

2. Evaluate the observation by Lord Parker in Dynamit AG v Rio Tinto Zinc Co [1918]
AC 260, that ‘…private international law is really a branch of municipal law and
page 22 University of London
obviously there can be no breach of municipal law in which the general policy of
such law can be properly ignored’.

3. What do you think the impact of the Human Rights Act 1998 has been on this
area of law?

4. Will English law recognise a marriage where the wife is 10 years old? What
difference would it make if she is the husband’s stepdaughter? Or if the husband
himself is only 12?

5. Imagine a legal system that does not allow adulterers to remarry. Would English
law recognise such an incapacity? See Scott v AG [1886] 11 P D 128. What of a legal
system that does not permit those with HIV infection to marry? Or a legal system
which did not allow persons of a particular religion to marry?

2.6 Penal, revenue and other public laws

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’,
B.3(F) ‘Exclusion of foreign law’.

2.6.1 The basis of non-enforcement

It is an almost universal principle that one state will not enforce the penal and
revenue laws of another state.

Why not? Because enforcement of such claims is an extension of the sovereign power
which imposed the taxes or penalties and ‘an assertion of sovereign authority by one
state within the territory of another, as distinct from the patrimonial claim by a foreign
sovereign, is (treaty or convention apart) contrary to all concepts of independent
sovereignties’ (per Lord Keith in Government of India v Taylor [1955] AC 491, 511; see also
Lord Goff in Re State of Norway’s Application (Nos 1 and 2) [1990] 1 AC 723, 808).

Who decides whether a law is a penal law or a revenue law or another public law? The
answer is that this is a matter for English law: so whether the foreign system would
so classify the law is irrelevant (USA v Inkley [1989] QB 255). See also Tasarruff v Demirel
[2007] 1 WLR 2508.

Attempts to enforce such laws may be direct or indirect. Neither is permitted. Indirect
enforcement occurs where the foreign state (or its nominee) seeks a remedy which
is not based on the foreign rule in question but which is designed to give it extra-
territorial effect. It can also occur where a private party raises a defence based on the
foreign law to assert the right of the foreign state. As an example of the latter you
might read Banco de Vizcaya v Don Alfonso de Borbon y Austria [1935] 1 KB 140. (The bank
sought delivery of securities owned by the former King of Spain and held by his agent
in London to deliver them to the Spanish State, which had declared his property forfeit
on account of his alleged treason.)

2.6.2 Categories of law that are excluded

We will look separately at the different categories of law which English courts will
refuse to enforce.

Penal laws
The courts of no country execute the penal laws of another
(Chief Justice Marshall in The Antelope (1825) 10 Wheat 66, 123).

What is a penal law? In Huntington v Attrill [1893] AC 150, 156 ‘penal’ was defined to
include not only crimes in the strict sense but ‘all breaches of public law punishable by
pecuniary mulct† or otherwise, at the instance of the state government, or someone †
Mulct: an obsolete word
representing the public’ and ‘all suits in favour of the state for the recovery of (verb or noun – noun in
pecuniary penalties for any violation of statutes for the protection of its revenue or this instance) meaning the
extraction of money (i.e. a
fine).
Conflict of laws  2  Fundamental concepts and issues page 23
other municipal laws, and to all judgments for such penalties’. It is not necessary that
the law in question is found in the criminal code of the foreign country. So, for
example, a law intended to protect the historic heritage of New Zealand by forfeiting
to the Crown historic articles illegally exported was held to be penal (see AG of New
Zealand v Ortiz [1984] AC 1, 34–35 per Ackner and O’Connor LJJ: the House of Lords
affirmed on different grounds).

Revenue laws
There is a well-recognised rule – it goes back nearly 300 years – that courts will not
collect the taxes of foreign states. The reason is that ‘tax gathering is not a matter of
contract but of authority and administration as between the state and those within
its jurisdiction’ (Government of India v Taylor [1955] AC 491, 514). So, the courts do not
enforce foreign revenue laws, nor judgments based on foreign revenue claims.

What is meant by ‘revenue law’? There is no definition but it clearly includes income
tax, capital gains tax, a succession duty, a municipal contribution (such as the UK’s
‘Community Charge’) and customs duties. Interestingly, it has been held that the
recovery of social security payments and legal aid contributions do not come within
this exclusionary rule (see Weir v Lohr [1967] 65 DLR (2d) 717 and Connor v Connor [1974]
1 NZLR 632).

Public laws
Although there is very little authority for this additional category, it is rational that
claims for the enforcement of foreign laws which are analogous to penal and revenue
laws should be dealt with similarly. These would include, for example, laws about
nationalisation, exchange control and laws regulating the duties of those employed in
the security services. Two cases illustrate the point.

AG of New Zealand v Ortiz [1984] AC 1

The New Zealand Government sought to recover a valuable Maori carving which had
been illegally exported from New Zealand. The carving had been bought by Ortiz and
was in the possession of Sotheby’s, the auctioneers, for sale on behalf of Ortiz. A New
Zealand statute provided that historic articles exported without permission were
forfeited to the Crown. In the Court of Appeal Lord Denning MR held that the New
Zealand statute could not be enforced because it was a public law (for the other two
judges it was a penal law). The House of Lords upheld the Court of Appeal on different
grounds, and pointed out that the views of the Court of Appeal on the applicability or
enforceability of penal or public law were obiter.

US v Inkley [1989] QB 255

The US Government sought to enforce in England a default judgment obtained
against the defendant in Florida. He had been arrested on fraud charges and given
an appearance bond as a condition of his being released on bail. The Court of Appeal
refused to enforce the judgment. It was a penal law. However, Purchas LJ and Heilbron
J accepted that there is a third residual category – foreign public law – which the court
will not enforce. Oddly, they relied on Ackner LJ’s judgment in Ortiz, although Lord
Ackner did not think there was such a residual category.

The Spycatcher cases

Litigation arising from the notorious Spycatcher book provides us with a third example.
The book had been written by a former member of the British security services, in
breach of the Official Secrets Act. The UK Government sought to stop publication
of the book in Australia and New Zealand. The High Court of Australia accepted
that there was a principle that the court should not enforce foreign public laws. It
suggested that rather than refer to ‘public laws’, it would be better to refer to ‘public
interests’ or ‘governmental interests’ since this would signify that the rule applies to
claims enforcing the interests of a foreign sovereign which arise from the exercise
of certain powers peculiar to government. It refused the injunction on the ground
page 24 University of London
that it would not enforce a claim arising out of acts of a foreign state in the exercise
of such powers in the pursuit of national security (see AG (UK) v Heinemann Publishers
Australia Pty Ltd [1988] 165 CLR 30). In New Zealand, the court refused an injunction
since the material in the book was by now well known. However, the court accepted
the residual category of ‘public laws’, though it thought a secret service agent’s duty
of confidentiality should be enforced, at any rate if the local sovereign supported the
claim (AG for the UK v Wellington Newspapers [1988] 1 NZKR 129).

Activities 2.7–2.10
2.7 Define ‘penal law’.

2.8 Why do states generally refuse to enforce the penal and revenue laws of other
countries?

2.9 Give three examples of matters that may come under the heading of ‘revenue
law’.

2.10 Explain ‘public law’.

Summary
English courts will not enforce penal, revenue and other similar public laws of foreign
states. To do otherwise would be to recognise the assertion of sovereign authority by
one state within the territory of another. What constitutes a penal law and a revenue
law is clear. Courts are still trying to come to a clear conclusion as to what comes
within ‘other public law’.

Reminder of learning outcomes

By this stage you should be able to:
u explain why English courts refuse to enforce certain laws of foreign states
u identify and give examples of the areas in which such exclusions are made.

Self-assessment questions
1. X incurs a penalty of £1,000 for breaking the law of Saudi Arabia by importing a
bottle of whisky. The penalty is recoverable in the courts of Saudi Arabia in an
action for debt brought by the Saudi Government. X is now in England. Can the
Saudi Government recover £1,000 from him in an action in an English court? If
not, why not?

2. Under legislation the City Council of Auckland (New Zealand) is authorised to

carry out improvements in the city and charge the cost to the owners of the
property affected. One of these owners lives in London. The Council sues her in
London for the sum due. Can the claim be maintained? If not, why not?

3. X brings manuscripts to England from Bulgaria despite a decree of the Bulgarian

Government forbidding their export. X seeks to sell them in London to Y. The
Bulgarian Government claims an injunction to prevent the sale. Will it succeed?
What defence is available to Y?

2.7 Proof of foreign law

Core text
¢ Clarkson and Hill, Chapter 1 ‘Introduction’, Section II ‘The conflicts process’,
C ‘Recognition and enforcement of foreign judgments’.

Essential reading
¢ Fentiman, R. ‘Foreign law in English courts’ (1992) 108 LQR 142 (available in
Westlaw via the Online Library).

We conceptualise foreign law as fact. This has two consequences:

Conflict of laws  2  Fundamental concepts and issues page 25
u it must be pleaded

u it must be proved.

An English court does not take judicial notice of foreign law.

Mode of proof
The foreign law must be proved by expert evidence: see Glencore International AG v
Metro Trading Inc [2001] 1 Lloyd’s Rep 283; [2001] 1 All ER Comm 103. Expertise in foreign
law is easier to describe than define. A judge or legal practitioner from the foreign
country is always competent. Statute provides that:

in civil proceedings a person who is suitably qualified to do so on account of his

knowledge or experience is competent to give expert evidence as to foreign law
irrespective of whether he has acted or is entitled to act as a practitioner [in the foreign
country]

(Civil Evidence Act 1972 s.4(1)).

So an academic lawyer who has specialised in the law of the foreign country is
competent (an example is Bodley Head v Flegon [1972] 1 WLR 680). Someone with
practical knowledge of the law, though not a lawyer, is also competent (e.g. the ex-
Governor of Hong Kong in Cooper-King v Cooper-King [1900] P 65).

An English court will not conduct its own searches into foreign law. But if an expert
witness refers to foreign statutes, decisions or books, the court is entitled to look at
these as part of the evidence.

If the evidence is uncontradicted, the English court should be reluctant to reject it. But
it may reject evidence which is ‘patently absurd’ or ‘obviously false’.

If there is conflicting testimony, the court is bound to decide for itself which it
believes. Under certain statutes, proof of foreign law may sometimes be dispensed
with. The details of these should not concern you.

Burden of proof
The burden of proving foreign law lies on the party who bases their claim or defence
on it. If that party adduces no evidence, or insufficient evidence, of the foreign law, the
court applies English law.

Self-assessment questions
1. Critically examine the concept of proof of foreign law in common law rules.

2. What implications follow from regarding foreign law as fact? Think of the role of
the appellate court (see Parkasho v Singh [1968] P 233) or the unlikely event of a
conflict case being tried by a jury.

3. Do you think the methods of proving foreign law in an English court are
satisfactory?

4. Are the following to be regarded as experts? Give your reasons.

i. A Bishop: the question in issue relates to the Canon law.

ii. An American Professor of Russian law: the question relates to Russian law.

iii. An Iraqi lawyer, in exile for the last 12 years, on current Iraqi law.

5. Given the difficulties of proving foreign law, should the court have the power to
decline to hear the case, thus forcing litigation to take place in the courts of a
country familiar with the foreign law in question?
page 26 University of London

Summary
English law regards foreign law as a fact. If it is not raised or proved, the court will
apply English law. The burden of proof is on the party who bases his claim or defence
on foreign law. Expert evidence is required: what constitutes expertise is easier to
describe than to define. It is not limited to practitioners in law.

Reminder of learning outcomes

By this stage you should be able to:
u explain the implications of regarding foreign law as fact
u explain how foreign laws must be proved in an English court and state who is
competent to give expert evidence on a matter of foreign law.

Sample examination questions

Question 1 Is it right for courts to characterise an issue in a case with a foreign
element as they would characterise a case with no foreign elements?
Question 2 What do you consider the best approach to characterisation to be?
Question 3 Iraq invades Kuwait and seizes its aircraft. Iraqi legislation is then
Conflict of laws  2  Fundamental concepts and issues page 27
enacted purporting to dissolve Kuwait Airways and transfer its assets to Iraqi
Airways. If Kuwait Airways sues Iraqi Airways in London, will the English court
recognise the Iraqi legislation? Or will it refuse to do so? You may find Kuwait
Airways Corp v Iraqi Airways Co [2002] 2 AC 883 helpful in answering this question.
You might also like to read P. Rogerson (2003) 56 Current Legal Problems 265 on this
case.

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the

principles outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter
very difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain the purpose of characterisation

(classification) and indicate the basis on which the
  
English courts characterise cases

I can indicate where the principal difficulties in

characterisation arise   

I can explain what is meant by ‘the incidental

question’ with examples from the case law and
  
describe the ways to solve the incidental question

I can explain the ambiguity of a reference to a

foreign ‘law’ and describe the different approaches
  
to unravelling this

I can describe the different concepts of renvoi and

give examples from the cases   

I can explain the role of public policy in the conflict

of laws   

I can indicate areas where the Human Rights Act

1998 may influence the application of public policy
  
in the conflict of laws
I can appreciate its role where there is a
fundamental breach of international law   

I can explain why English courts refuse to enforce

certain laws of foreign states   
page 28 University of London
Ready to Need to Need to
move on revise first study again

I can identify and give examples of the areas in which

such exclusions are made   

I can explain the implications of regarding foreign

law as fact   
I can explain how foreign laws must be proved in
an English court and state who is competent to give   
expert evidence on a matter of foreign law.

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

2.1 Characterisation – an illustration: Ogden v Ogden  

2.2 The difficulties that arise with characterisation  

2.3 The ‘incidental question’  

2.4 Renvoi: an explanation  

2.5 Public policy and the exclusion of foreign law  

2.6 Penal, revenue and other public laws  

2.7 Proof of foreign law  

3 Domicile and residence

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3.1 The concept of domicile . . . . . . . . . . . . . . . . . . . . . . . . . 31

3.2 The ascertainment of domicile . . . . . . . . . . . . . . . . . . . . . . 32

3.3 Domicile and categories of persons . . . . . . . . . . . . . . . . . . . . 33

3.4 Domicile of dependency . . . . . . . . . . . . . . . . . . . . . . . . . 35

3.5 Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

page 30 University of London

Introduction
This chapter discusses the personal connecting factors used in English conflict of
laws. It examines the general principles of domicile and the ways in which domicile
is ascertained. The three different concepts of domicile – domicile of origin, domicile
of choice and domicile of dependency – are each considered. A section at the end of
this chapter discusses residence, in particular habitual residence, a concept which is
becoming more important.

Solving domicile problems comes with practice, so we have included a number of

activities relating to it. You should also read the cases to see how judges undertake the
exercise. A test of how well you have understood domicile issues is whether you can
answer the sample examination questions at the end of the chapter with confidence.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u define and explain the concept of domicile
u use the principles of domicile to determine where a person is domiciled
u explain how the domicile of dependents, particularly children, is established
u distinguish between domicile and habitual residence.
Conflict of laws  3  Domicile and residence page 31

3.1 The concept of domicile

Core text
¢ Clarkson and Hill, Chapter 6 ‘Domicile, nationality and habitual residence’.

Essential reading
¢ Cases: Winans v AG [1904] AC 287; Ramsay v Liverpool Royal Infirmary [1930] AC
588; IRC v Bullock [1976] 1 WLR 1178; Re Furse [1980] 3 All ER 838.

3.1.1 Why domicile is important

Domicile (the lex domicilii) has a dominating role in family and matrimonial property law
and a role in other areas of law such as the capacity of persons to make contracts. It also
plays a part in the law of taxation. There is only one concept of domicile: accordingly, a
case on whether a taxpayer has acquired a domicile in England is also authority for the
question of whether someone has the capacity to marry or make a will.

Domicile cannot be defined with precision

Old cases such as Whicker v Hume [1858] 7 HLC 124, 160 defined domicile as ‘permanent
home’. However, you will find many reported cases where a person has lived in a place
for 30 or 40 years and has not been held to have acquired domicile there. After reading
the cases listed above, you may conclude that the persons in question (such a person
is often called the propositus) had permanent homes in England, but in none of the
four cases was a domicile acquired in England.

Domicile is ‘an idea of law’

The notion of domicile as ‘an idea of law’ can be found in Bell v Kennedy [1868] LR 1 Sc &
Div 307, 320. Domicile diverges from the notion of permanent home in three ways:

The elements required for the acquisition of a domicile go beyond those required for the
acquisition of a permanent home. Thus, to acquire a domicile of choice in a country a
person must intend to reside in it permanently or at least indefinitely.

The law attributes a domicile to everyone, whether they have a permanent home or not.
A vagrant, for example, has a domicile.

Certain persons, for example children under 16, cannot acquire independent domiciles.
They may thus have permanent homes in places in which they are not domiciled, because
the person upon whom they are dependent is domiciled elsewhere.

Domicile connects a person with the law of a country

For these purposes, England and Scotland, Victoria and New South Wales, California
and Texas, for example, are separate systems. So if X emigrates to the USA but cannot
decide whether she will live in Florida or Oregon, she does not acquire a domicile of
choice and will retain her existing domicile until she does so.

Countries may cease to exist or these boundaries may change

The Soviet Union broke up in the 1990s; so did Yugoslavia, and Czechoslovakia
became two countries (the Czech and Slovak Republics). Surprisingly, little thought
has been given to the consequences of these changes for the law of domicile. It may
be supposed, for example, that someone with a Yugoslav domicile in 1990 who lives
in Dubrovnik became domiciled in Croatia when that country was created, and that
whether someone with a Czechoslovakian domicile is now domiciled in the Czech
Republic or the Slovak Republic will depend on whether they lived in Prague or
Bratislava at the time of the split.
page 32 University of London

3.1.2 The principles of domicile

The basic principles set out in F v F [2009] 2 FLR 1496, 1503, are that:

u no person can be without a domicile (see Mark v Mark [2006] 1 AC 98)

u no person can at the same time, for the same purposes, have more than one
domicile (see IRC v Bullock [1976] 1 WLR 1178, 1184)

u an existing domicile is presumed to continue until it is proved that a new domicile

has been acquired (Winans v AG [1904] AC 287, 289).

The burden of proving a change of domicile lies with those who assert it. The change
of a domicile must be proved on a balance of probabilities, not beyond reasonable
doubt.

For the purpose of an English rule of the conflict of laws, the question of where a
person is domiciled is determined according to English law. (See Re Annesley [1926] Ch
692; Lawrence v Lawrence [1985] Fam 106, 132.)

3.2 The ascertainment of domicile

3.2.1 The domicile of origin

Every person acquires at birth a domicile of origin.

This is the domicile of your father at the time of your birth if you are legitimate. It is
the domicile of your mother if you are illegitimate or if your father dies before you are
born.

Foundlings have a domicile of origin in the country in which they are found.

A domicile of origin may be changed as a result of adoption, but not otherwise.

A domicile of origin is more tenacious than a domicile of choice. It is more difficult

to prove it has been abandoned. If a person leaves the country of their domicile of
origin, intending never to return to it, they continue to be domiciled there until they
acquire a domicile of choice in another country. But if a person leaves the country of
their domicile of choice, intending never to return to it, they cease to be domiciled in
that country: unless and until they acquire a new domicile of choice, their domicile of
origin revives.

3.2.2 Domicile of choice

Every independent person can acquire a domicile of choice by the combination of
residence and intention of permanent or indefinite residence.

Residence
‘Residence’ means physical presence ‘as an inhabitant’ (see IRC v Duchess of Portland
[1982] Ch 314, 318–19). It is not necessary that residence should be of long duration.
In an American case (White v Tennant 8 SE 596 [1888]), part of a day was enough. An
immigrant can acquire a domicile immediately on arrival in a country if they intend to
settle there.

In Puttick v AG [1980] Fam 1, it was held that a domicile of choice cannot be acquired by
illegal residence (in this case it was claimed by a member of a German terrorist group).
It may not follow that an English court would say that domicile of choice could not be
acquired by illegal residence in a country outside the United Kingdom: for example,
an Al-Qa’ida member with a domicile of origin in Saudi Arabia living permanently in
Germany.

Intention
‘Intention’ is intention to reside permanently or indefinitely in a country, that is not for
a limited period or a particular purpose. If the person leaves upon the occurrence of a
Conflict of laws  3  Domicile and residence page 33
contingency, this possibility will be ignored if the contingency is vague and indefinite
(e.g. winning the lottery), but if it is clearly foreseen and reasonably anticipated (e.g.
coming to the end of employment), it may prevent the acquisition of a domicile of
choice.

Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance,

and any circumstance which is evidence of a person’s residence, or of their intention
to reside permanently or indefinitely, must be considered in determining whether
they have acquired a domicile of choice in that country.

Most disputes as to domicile turn on the question of whether the necessary intention
accompanied the residence. A court has said
There is no act, no circumstance in a man’s life, however trivial it may be in itself, which
ought to be left out of consideration in trying the question whether there was an
intention to change the domicile. A trivial act might possibly be of more weight with
regard to determining this question than an act which was of more importance to a man
in his lifetime

(Drevon v Drevon [1864] 34 L J Ch 129, 133).

Cheshire, North and Fawcett (p.155) say:

Nothing must be neglected that can possibly indicate the bent of the resident’s mind. His
aspirations, whims, amours, prejudices, health, religion, financial expectations…

A person whose domicile is in question may testify as to their intention, but courts
view the evidence of an interested party with suspicion. Declarations of intention
made out of court may be given in evidence by way of exception to the hearsay rule.
Declarations of intention:

must be examined by considering the persons to whom, the purposes for which, and the
circumstances in which they are made, and they must further be fortified and carried into
effect by conduct and action consistent with the declared expressions
(Ross v Ross [1930] AC 1, 6–7).

It has been said that to acquire a domicile of choice there must be:
a residence freely chosen, and not prescribed or dictated by any external necessity, such
as the duties of office, the demands of creditors or the relief from illness
(Udny v Udny [1869] LR 1 Sc & Div 441, 458).

This can be seen by examining certain categories of persons.

Summary
Domicile is the most significant connecting factor in English conflict of laws. It has a
dominating role in family and matrimonial property law. It is difficult to define, but
easier to understand in practice. There are important principles of domicile. Everyone
is born with a domicile of origin, which remains (if only in abeyance). Domicile of
choice can be acquired by residence and an intention to reside permanently or
indefinitely.

Reminder of learning outcomes

By this stage you should be able to:
u define and explain the concept of domicile
u use the principles of domicile to determine where a person is domiciled.

3.3 Domicile and categories of persons

Prisoners
A prisoner normally retains their domicile. But they can form an intention to reside
permanently or indefinitely, in which case they acquire a domicile of choice there.
page 34 University of London

Persons liable to deportation

Such a person’s residence will be precarious and so they are unlikely to be able to
form an intention to remain. But if they form the necessary intention, they acquire the
domicile of choice.

Once a person has acquired a domicile of choice they do not lose it merely because a
deportation order has been made against them. (Cruh v Cruh [1945] 2 All ER 545.) They
lose it only when they are actually deported.

Refugees and fugitives

If a political refugee intends to return to the country from which they have fled as
soon as the political situation changes, they retain their domicile there unless the
desired political change is so improbable that this intention is discounted and is
treated as merely an exile’s longing for their native land. But if their intention is not
to return even when the political situation has changed, they can acquire a domicile
of choice in the country to which they have fled. Contrast the cases of Re Lloyd Evans
[1947] Ch 695 and May v May [1943] 2 All ER 146.

In the cases of a fugitive from criminal justice, the intention to abandon domicile will
readily be assumed, unless the punishment they seek to escape is trivial or there is a
relatively short period of prescription barring liability to punishment. See Re Martin
[1900] P 211. But in Moynihan v Moynihan (Nos 1 and 2) [1997] 1 FLR 59, it was held that
M, who had left the UK to avoid arrest on serious fraud charges, had, at his death,
acquired a domicile of choice in the Philippines, where he had lived for 20 years, built
up a thriving business, acquired properties, married and had children.

Invalids
Does a person who resides in a country for the sake of their health acquire a domicile
there? The objections are (i) the residence has been taken up for a special motive, and
(ii) it may not be freely chosen. These factors make it improbable that a domicile has
been acquired. If someone goes to a country for treatment, they clearly do not acquire
a domicile there. But someone who settles in a new country because they believe
that they will enjoy better health there may well intend to live there permanently or
indefinitely (see Hoskins v Matthews [1855] 8 De GM & G 13 for an example).

Members of the armed forces

It was once thought that members of the armed forces could not, as a matter of law,
acquire a domicile of choice during service. But it is now settled that such a person can
acquire a domicile of choice if that is their intention (Donaldson v Donaldson [1949] P
363). Of course, it rarely will be.

Employees
If a person goes to a country merely to work, they do not acquire a domicile of choice
there. So when a barrister with an English domicile of origin was appointed Chief
Justice of Ceylon, and he went to Ceylon intending to stay until he had earned his
pension, he retained his English domicile (AG v Rowe [1862] 1 H&C 31). However, if a
person goes to the country not merely to work, but also to settle in it, they do acquire
a domicile of choice.

Diplomats
Generally, diplomats do not form the intention of settling in the country to which
they have been accredited. But if they form the intention of residing permanently or
indefinitely, they can, like everybody else, acquire a domicile of choice in that country.
An example is found in the South African case of Naville v Naville [1957] (1) SA 280.

Loss of domicile
We have seen how domicile is acquired. We must now look at the ways in which it is
lost. As we have already learned, domicile of origin cannot be lost as such. Even when a
Conflict of laws  3  Domicile and residence page 35
domicile of choice is acquired, the domicile of origin will remain as a resource to fill up
any gap when a domicile of choice is abandoned.

A domicile of choice can be abandoned by a person when they cease to reside in

a country and cease to intend to reside there permanently or indefinitely. When a
domicile of choice is abandoned either a new domicile of choice is acquired, or the
domicile of origin revives by operation of law.

Self-assessment questions
1. Suraj – who has a domicile of origin in India – left to join the rest of his family in
New South Wales (Australia), which became his domicile of choice. Five years
later, following the collapse of their business, the entire family emigrated to the
USA, intending to settle there and ‘make a new start’. What is Suraj’s domicile at
the moment of his arrival in the USA? Why?

2. Odetta, an asylum seeker from Rwanda, had her application for asylum in the
UK refused and was sent to a detention centre pending deportation. She had
wished and intended to establish her domicile in the UK. She did not want to
return to Rwanda because she was wanted for questioning in connection with
the killings there some years ago. Can she claim that she is domiciled in England?

3. Jane, who has spent only three weeks of her life (80 years) in Ireland, has
Irish domicile at the time of her death. She was born in India, kept her British
citizenship all her life and spent 50 years in Italy, where she died. Her only
connection with Ireland is the three weeks she spent there and the fact that her
father was born in that country. If you assume that she has failed to acquire a
new domicile, what country is Jane deemed to be domiciliary of?

Summary
Intention is crucial when the acquisition of a new domicile is in issue. It can be tested
out by examining a number of categories of persons, such as refugees, fugitives,
employees and invalids.

3.4 Domicile of dependency

The domicile of a dependent person is the same as, and changes with, the domicile of
the person on whom they are, as regards domicile, legally dependent.

A dependent person cannot acquire a domicile of choice by their own act.

Until 1 January 1974 there were three categories of dependent persons: married
women, children and the mentally disordered.

3.4.1 Married women

Married women ceased to be dependent persons on 1 January 1974 and since then
have been able to acquire a domicile of choice independently of their husbands.
But this Act is not retrospective and many women who married before it came into
operation will still have their husband’s domicile (albeit as one of quasi-choice).

Until 1 January 1974 a married woman (even if a minor) was dependent for the
purposes of the law of domicile upon her husband. So it was the same as, and changed
with, the domicile of her husband. This applied even where they were living apart
and had done so for many years: see for example Re Scullard [1957] Ch 107 (separation
of 46 years; in different countries for 30 of those years). Lord Denning MR described
the married woman’s domicile of dependency as ‘the last barbarous relic of a wife’s
servitude’ (Gray v Formosa [1963] P 259, 267).

The domicile of a married woman is now ascertained by reference to the same factors
as in the case of any other individual capable of having an independent domicile (see
s.1(1) Domicile and Matrimonial Proceedings Act 1973).
page 36 University of London
The transitional provision of the 1973 Act s.1(2) needs to be examined carefully. To date
†
it has only been interpreted by Nourse J† in IRC v Duchess of Portland [1982] Ch 314. The You should study Nourse
provision states that where immediately before 1 January 1974 a woman was married J’s judgment carefully. Ask
and then had her husband’s domicile of dependence, she is treated as retaining that yourself whether you find
domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until his arguments convincing,
particularly where he
it is changed by acquisition or revival of another domicile either on or after that date.
suggests the same test
This means that Mrs A who settled in New York in 1970 acquired a domicile of choice applies for the abandonment
in New York on 1 January 1974 but Mrs B who always intended to settle in New York but of a domicile of quasi-
was still living with Mr B on 1 January 1974 retains his domicile as a domicile of choice choice (a ‘deemed’ domicile
(or quasi-choice) and cannot acquire a domicile of choice until she resides as an of choice) as applies to a
inhabitant in New York and intends to live there permanently or indefinitely. This can ‘genuine’ domicile of choice.
cause problems, as the Duchess of Portland found. You will find it helpful to
read Wade, J. ‘Domicile: a re-
examination of certain rules’
3.4.2 Children
[1983] 32 ICLQ 1.
The domicile of a child ‘under 16’ is quite complicated.

u if legitimate, it is that of the child’s father

u if the child is legitimated, it is that of their father from the time of the legitimation
(remember such a child will have their mother’s domicile as a domicile of origin)

u if the child is illegitimate or their father is dead it is that of their mother

u if the child has no parents, their domicile probably cannot be changed

u if the child is adopted, their domicile is determined as if they were the legitimate
child of the adoptive parent or parents.

One anomaly that must be understood is that a mother who changes her domicile will
only change the domicile of a child dependent on her if what she does furthers the
child’s interest. Fathers are not so constrained. See Re Beaumont [1893] 3 Ch 490.

The 1973 Act created an exception to the rules just set out. You should examine s.4 of
this Act very carefully. It applies to legitimate and legitimated children under 16 whose
parents are living apart or were living apart at the death of the mother. In such cases
the child’s domicile is determined as follows:

u if the child has their home with their mother and no home with their father, their
domicile is, and changes with, the domicile of their mother

u if this has applied to the child at any time and they have not since had a home with
their father, their domicile is, and changes with, the domicile of their mother

u if at the time of their mother’s death, the child’s domicile was the same as their
mother because of either of these rules, and they have not since had a home with
their father, the domicile of the child is the domicile their mother last had before
she died.

3.4.3 The mentally disordered

The law as regards the mentally disordered can be briefly stated. Such a person cannot
acquire a domicile of choice and retains the domicile they had when they began to
be legally treated as mentally disordered. However, if the child was born mentally
disordered or the child becomes mentally disordered while a dependent child,
their domicile is determined, so long as they remain mentally disordered, as if they
continued to be a dependent child.

Summary
The only persons today who can have a domicile of dependency are children and the
mentally disordered. But married women did formerly, and many who married before
the change in the law in January 1974 will still share their husband’s domicile.
Conflict of laws  3  Domicile and residence page 37

3.5 Residence

Core text
¢ Clarkson and Hill, Chapter 6 ‘Domicile, nationality and habitual residence’,
Section V ‘Habitual residence’.

‘Residence’, ‘ordinary residence’ and ‘habitual residence’ are increasingly used as

personal connecting factors. Of these, ‘habitual residence’ is the most significant for
the student of Conflict of laws. We will concentrate on it here. As you study it, observe
the differences with the concept of domicile.

The term ‘residence’ is found in the Hague Conventions and often makes its way into
English law through this route. The Hague Conventions do not define ‘habitual residence’.
The Court of Appeal has said that it is primarily a question of fact to be decided by
reference to the circumstances of each particular case (see Re M [1993] 1 FLR 495).

‘Habitual’ indicates a quality of residence, rather than its length (see Cruse v Chittum
[1974] 2 All ER 940). It has been said that it means ‘a regular physical presence which
must endure for some time’ (Cruse v Chittum [1974] 2 All ER 940, 942 per Lane J). It cannot
be acquired in a day since ‘an appreciable period of time and a settled intention’ are
required (Re J [1990] 2 AC 562). ‘Settled intent’ has been identified as intent to take up
long-term residence in the country concerned (A v A [1993] 2 FLR 225, 235). But this comes
close to conflating habitual residence with domicile and a settled purpose to reside
in a country does not necessarily involve any long-term plan. Habitual residence may
continue during temporary absences (see Oundjian v Oundjian [1979] 1 FLR 198). It will be
lost if a person leaves a country with a settled intention not to return to it.

It is possible to have no habitual residence (but one would have to be a nomad).

Habitual residence in two (or more) places is also possible.

Many cases which hinge on habitual residence are involved with the sensitive issue of
international child abduction. This is not in the syllabus and accordingly this module
guide does not explore this issue further.

Self-assessment questions
1. Make a list of the differences between the concept of habitual residence and the
concept of domicile.

2. A child who has habitual residence in England is taken to Australia for a custody
hearing. Custody, which was originally vested on the mother, who is habitually
resident in England, is conferred by the Australian court on the father, who
is habitually resident in Australia. The mother then takes the child back to
England. Is the habitual residence of the child in England or in Australia?

Activities 3.1–3.8
3.1 Raj, who is 12 years old and legitimate, was born in England to a father with an
Indian domicile. His father has now been posted to Dubai and is intending to live
there until he retires. Where is Raj’s domicile?

3.2 What are the various types of domicile?

3.3 Can a person have more than one domicile at a time?

3.4 On what basis does a person acquire a domicile of choice?

3.5 Why is naturalisation not a decisive factor in establishing domicile?

3.6 Chou, who has a Singapore domicile of origin, was sent by his company in
Singapore to work in London, where he has remained for 15 years. He has now
retired but cannot return to Singapore because of his involvement in political
activities in England of which the Singapore Government disapproves. Where is
he domiciled?

3.7 How is ‘habitual residence’ usually defined?

3.8 What is the importance of proof in habitual residence?

page 38 University of London

Reminder of learning outcomes

By this stage you should be able to:
u explain how the domicile of dependents, particularly children, is established
u distinguish between domicile and habitual residence.

Sample examination questions

Question 1 The law of domicile ‘remains rooted in its Victorian origins when the
establishment of a home was an affair of a lifetime’ (Clarkson and Hill, p.326). Discuss.
Question 2 Is the law of domicile in need of reform?
Question 3 Would we be better to select habitual residence or nationality as a
personal connecting factor?
Question 4 Sam was born in Greece in 1942 to parents who were domiciled in
Greece. Shortly after his birth, his father, Ben, went to France to join the French
resistance forces. A year later Sam’s mother received news that Ben had been killed
and she remarried Josh, whose domicile of origin was in Hungary. Josh was a Jew on
the run from the Nazis and had found his way to Greece. In 1944 Sam, Ruth and Josh
were deported by the Nazis to Auschwitz in German-occupied Poland. Josh was killed
shortly after arrival, but Sam and Ruth miraculously survived. In 1946 they took a ship
to Palestine (as Israel was formerly known) but this was turned back by the British.
Sam was, however, smuggled in. The ship sank on the high seas and Ruth drowned.
Ben had not in fact been killed and was still in France. After the war he qualified as
a lawyer in France and prospered. He had no idea that his son had survived the war.
He became a committed Zionist, was involved in charitable activities for Israel and
frequently talked about emigrating to Israel. In 1954 his law firm set up an office
in Cairo, and he was offered a lucrative appointment. He enjoyed the lifestyle of
wealthy Europeans in Egypt and began to think that his future lay there. He was,
however, forced to leave in 1957. He returned to France but could not settle and, in
1958, decided to see if he liked living in Israel.
He was reunited with his son and the two of them lived together in Israel until 1959.
Ben retained links with his law firm in France, which was about to set up a branch
in Sydney, and Ben and Sam moved to Australia. In 1960, Sam went to University in
Sydney. In 1963, just before his 21st birthday, he got a postgraduate scholarship to
Harvard. He did not like living in the United States but, when he obtained his PhD
in 1966, he was offered a very good job in Minnesota. He found the climate too cold
and was looking for another post (he had applied for jobs in Australia) when war
broke out in Israel in 1967 and he returned to Israel.
Sam stayed in Israel for 10 years. He married, obtained a University appointment,
integrated into Israeli society and rediscovered his Jewish roots. But he was
unhappy about the Israeli treatment of Palestinians and in 1977 went to South Africa
to take up a university appointment in Cape Town. He could not settle in South
Africa. He despised the apartheid regime, became an outspoken critic and joined
the African National Congress. He was arrested and sentenced to a lengthy term of
imprisonment in 1982. He was released in 1992. He came to England, took a job as a
school teacher and obtained UK citizenship. He always talked of returning to Israel
if ‘there was ever true peace’. In 2002 he heard that his elderly father was unable to
look after himself any longer in Sydney. He thought of bringing him over to England
but was advised that Australia would be better for the health of both of them.
Sam set out for Australia last week. The taxi taking him to Heathrow crashed and he
was killed. Where did Sam die domiciled?

Advice on answering the questions

Domicile questions require a clear head and logical thinking. It is often helpful to draw
a chart for yourself. It will sometimes be necessary to consider a person’s domicile
on alternative lines of reasoning. Always find the person’s domicile of origin first, and
always trace each step in their life. Work out the significance of every fact you are
given and you should be able to come to a reasoned, step-by-step decision. Do not
waste time setting out the detailed law: go straight to the problem set.
Conflict of laws  3  Domicile and residence page 39

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the

principles outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter
very difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain and define the concept of domicile

  
I can use the principles of domicile to determine
where a person is domiciled   

I can explain how the domicile of dependents,

particularly children, is established   

I can distinguish between domicile and habitual

residence.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

3.1 The concept of domicile  

3.2 The ascertainment of domicile  

3.3 Domicile and categories of persons  

3.4 Domicile of dependency  

3.5 Residence  
page 40 University of London

Notes
4 Jurisdiction

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

4.1 Historical background . . . . . . . . . . . . . . . . . . . . . . . . . . 43

4.2 Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

4.3 Jurisdiction under the traditional rules . . . . . . . . . . . . . . . . . . 45

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

page 42 University of London

Introduction
Jurisdiction has become the central focus of conflict of laws. More cases relate to
jurisdiction issues than the rest of the subject put together. We will have to study two
parallel jurisdictional frameworks, one now governed by Council Regulation 1215/2012
of 12 December 2012, which repealed Council Regulation 44/2001, and the other by
traditional or common law rules.

After a brief review of the historical background we turn to look at the law governing
jurisdiction. Before we do so we must take note of categories of institutions and
persons who cannot be sued in the English courts (immunity). Here we encounter
an overlay between conflict of laws and public international law. The subject of state
immunity is of greater relevance to public international law and, for the purposes of
conflict of laws, an outline knowledge only is required. By the end of this chapter you
should have this outline knowledge.

We must next look at the traditional (common law) rules of jurisdiction. These only
apply where the defendant is not domiciled in a Member State of the European Union,
for example when the defendant is a New York corporation or a Russian domiciled in
Russia or elsewhere outside the EU. These rules are less complex than the EU regime.
By the end of this chapter you must know these rules.

Unlike the fairly rigid set of rules in the EU regime you will see that the common law
is relatively flexible. In particular, the courts possess the power to stay proceedings.
We will be concentrating on jurisdiction in personam (you do not need to study
jurisdiction in rem).

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u outline the historical background to the jurisdiction rules laid down by the EU
legislation
u explain the relationship between the EU regime and the common law traditional
rules
u describe the extent to which states and international bodies are immune from
the jurisdiction of the English courts
u explain the limits to the doctrine of state immunity
u describe the circumstances in which an action may be commenced on a
defendant (a) within and (b) outside the jurisdiction of England and Wales
u explain what is meant by ‘presence’ and ‘submission to the jurisdiction’.
Conflict of laws  4  Jurisdiction page 43

4.1 Historical background

Core text
¢ Clarkson and Hill, Chapter 3 ‘Foreign judgments’, Section I ‘Introduction’.

First, a few words of historical introduction. Until 1 January 1987, the High Court had
jurisdiction over persons who were present in England at the time of service of process
and in certain specified cases over persons who were outside England. In the latter
case it was generally necessary for permission to be obtained from the court for issue
of process and its service outside the jurisdiction (see Section 4.3.2 below). In each
case the court’s jurisdiction was subject to a discretion (in the former case to stay
proceedings – although these powers did not really emerge until the 1980s – and in
the latter to refuse leave).

In 1968 the original Contracting States of the European Union signed the Brussels
Convention. The UK, Ireland and Denmark acceded to it in 1978 (there was an
Accession Convention, which contained some important modifications of the 1968
Convention). In 1982 Greece joined and in 1989 Spain and Portugal acceded (this
accession convention, the San Sebastian Convention, made a number of substantive
changes). Austria, Finland and Sweden have since joined, and the Regulation also
applies to all the countries which joined the European Union in May 2004, namely
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia
and Slovenia, as well as Bulgaria and Romania which joined in 2007 and Croatia which
joined in 2013. In addition, a parallel Convention was signed at Lugano in 1988: this
bound the states of the European Union and of the European Free Trade Area (the
remaining EFTA countries are Iceland, Norway and Switzerland).

With effect from 1 March 2002, for 14 of the then Member States of the European Union
(that is all except Denmark) the Brussels Convention was replaced by the Council
Regulation (EC) 44/2001 (Brussels Regulation). That Regulation has, with effect from 10
January 2015, been repealed and replaced by Regulation 1215/2102 (Brussels Regulation
(recast)).

Things are much more complex than they need to be; it is difficult to see whose
interests this serves. There are many traps for the unwary.

The traditional rules remain and still govern jurisdiction over persons who are not
domiciled – a concept that has its own special meaning – within the European Union
or the Lugano area. Thus, for example, if it becomes necessary to decide whether a
Trinidadian businessman or a Japanese corporation can be sued in England, it is to the
common law that we look.

Reminder of learning outcomes

By this stage you should be able to:
u outline the historical background to the jurisdiction rules laid down by the EU
legislation
u explain the relationship between the EU regime and the common law traditional
rules.

4.2 Immunities

Core text
¢ Cheshire, North and Fawcett, pp.496–518 (available on the VLE).

Subject to some exceptions (see below) a foreign state is immune from the
jurisdiction of the English courts. See the State Immunity Act 1978 s.1(1), and Lord
Atkin’s classic statement in The Cristina [1938] AC 485, 490:

the courts of a country will not implead a foreign sovereign, that is, they will not by their
process make him against his will a party to legal proceedings, whether the proceedings
involve process against his person or seek to recover from him specific property or damages.
page 44 University of London
Does this conflict with the European Convention on Human Rights Article 6(1)? In Al-
Adsani v UK (2001) 34 EHRR 273, the ECHR accepted that, in cases of sovereign immunity,
the right of access to a court under Article 6(1) is engaged. Therefore, to be compatible
with Article 6(1), the limitation on jurisdiction under the doctrine of sovereign
immunity has to pursue a legitimate aim and be proportionate. The case was a civil
claim against Kuwait alleging torture. A majority of the ECHR said that the

grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of
complying with international law to promote comity and good relations between States
through the respect of another State’s sovereignty.

The restriction is proportionate to the aim pursued since state immunity reflects ‘a
generally accepted rule of international law’. See also Jones v Minister of Interior of
Kingdom of Saudi Arabia [2007] 1 AC 270. British nationals alleged they were tortured
by Saudi officials, and they sued the Saudi state and the officials in England. The
House of Lords held that the state and its officials were both entitled to immunity.
It was contended that the restriction imposed by the law of state immunity was
disproportionate since the proscription of torture by international law had the
authority of a peremptory norm, precluding the grant of immunity to states or
individuals sued for committing acts of torture. The House of Lords found itself unable
to accept that torture could not be a governmental or official act. Immunity under the
1978 Act was not disproportionate as it was inconsistent with a peremptory norm of
international law. Therefore, there was no infringement of the claimants’ rights under
Article 6(1) of the Convention. Cases like Jones were not envisaged when the 1978 Act
was passed. Should it be reconsidered?

‘State’ includes the sovereign, the government and any department of government.

4.2.1 Limits of state immunity

State immunity may be limited in three respects:

u a state can submit to the jurisdiction of the English courts (s.2(1))

u a state is not immune in proceedings relating to a commercial transaction entered

into by the state or an obligation of the state which, by virtue of a contract, fails to
be performed wholly or partly in the UK (s.3(1))

u a state is not immune in proceedings relating to a contract of employment

between the state and an individual where the contract was made in the UK or the
work is to be wholly or partly performed in the UK (s.4(1)).

English courts have no jurisdiction to entertain an action or other proceeding against

any person entitled to immunity under the Diplomatic Privileges Act 1964 or the
Consular Relations Act 1968. So, for example, an ambassador cannot be sued.

English courts have no jurisdiction to entertain an action or other proceeding against

an international organisation or its officials specially protected by or under statute.

Activities 4.1 and 4.2

4.1 What are the origins of state immunity?
4.2 Pursuant to the State Immunity Act 1978, state immunity may be limited. Under
what circumstances can this happen?

Self-assessment questions
1. Why is there state immunity?

2. Decide and explain the following:

i. A, an English company, is granted a concession by the government of X to

work mines in X. X government repudiates the contract. A brings an action
for damages in England. Does the court have jurisdiction?

ii. B, an English company, agrees to supply arms to the government of Y. The

contract is governed by English law. Y government refuses to pay for the
arms. B sues in England. Does the court have jurisdiction?
Conflict of laws  4  Jurisdiction page 45
iii. C, a British citizen, is employed by the government of Z to run its tourist
office in London. He is dismissed and sues for damages. Does the English
court have jurisdiction?

iv. D is injured in a motor accident caused by the negligence of H, the chauffeur

of a foreign ambassador, who is a member of the service staff of the mission.
He was driving the ambassador’s car. H is a citizen of that country. Is H
liable to pay damages to D? If he was not on official business but was taking
his wife for a run in the country, would your answer be different? Is the
ambassador vicariously liable, in either case? What about the liability of the
insurance company? (See Dickinson v Del Solar [1930] 1 KB 376.)

v. E, a British citizen, is arrested and tortured in prison in X. Can he sue (i) the
state of X; (ii) the torturer in England?

Summary
State immunity is a firmly established principle, but it has been abused and therefore
the modern legislation (the State Immunity Act 1988) imposes important limits on it.
Whether these limits are sufficient is coming to be doubted.

Reminder of learning outcomes

By this stage you should be able to:
u describe the extent to which states and international bodies are immune from
the jurisdiction of the English courts
u explain the limits to the doctrine of state immunity.

4.3 Jurisdiction under the traditional rules

Core text
¢ Clarkson and Hill, Chapter 2 ‘Civil jurisdiction’, Section II ‘Bases of jurisdiction in
personam’.

4.3.1 Presence within the jurisdiction

An action may be commenced by service of a claim form on the defendant while
they are present in England and Wales. Their presence may be fleeting. The test is not
residence.

Thus in Maharanee of Baroda v Wildenstein [1972] 2 QB 283, the defendant was visiting
the Ascot races in England (and the litigation had no connection with England – it
would certainly have been stayed today). And in Colt Industries Inc v Sarlie [1966] 1 All ER
673, the defendant was visiting England for a few days and not in connection with any
possible litigation. The only exception to this exorbitant jurisdiction is if the defendant
was enticed into the jurisdiction fraudulently or improperly. The presence test was
reaffirmed in Chellaram v Chellaram (No.2) [2002] 3 All ER 17.

Rules for companies, etc.

Where the defendant is a partnership, the claim form may be served on any one of
the parties who is present in England or at the principal place of business within the
jurisdiction.

As far as companies are concerned

1. A company registered in England may be served by leaving the claim form at,
or sending it by post to, the company’s registered office (Companies Act 2006
s.1139(1)).

2. The rules for suing an overseas company are contained in the 2006 Act, Part
34. An overseas company is defined as a company incorporated outside the UK
page 46 University of London
(s.1044). A document may be served on an overseas company whose particulars are
registered

a. by leaving it (or sending it by post to) the registered address of any person
registered in the UK authorised to accept service on the Company’s behalf; or

b. if there is no such person, or the person refuses service, by leaving it or sending

it by post to any place of business of the company in the UK.

There are alternative methods of service (e.g. personal service). A document can be
served personally on a company by leaving it with a person holding a senior position
within the company, such as a director. But there is some uncertainty over whether
this applies to a foreign company.

Submission to the jurisdiction

The High Court has jurisdiction to entertain a claim against a person who submits
to the jurisdiction of the court. The person may do this by acknowledging service or
instructing a solicitor to accept service on their behalf. Note also that:

u commencing an action as a claimant will give the court jurisdiction over a

counterclaim

u an acknowledgment of service to protest that the court does not have jurisdiction
does not constitute submission (Re Dulles’ Settlement (No.2) [1951] Ch 842)

u an application for a stay is not a submission to the jurisdiction, because it is not

inconsistent with a protest to the jurisdiction (Williams & Glyn’s Bank v Astro
Dinamico [1984] 1 WLR 438)

u it is possible to submit to the jurisdiction of the court by agreeing in a contract that

the English court shall have jurisdiction. But choosing English law to govern the
contract does not amount to an agreement to submit to the jurisdiction (Dunbee
Ltd v Gilman & Co (Australia) Pty Ltd [1968] 2 Lloyd’s Rep 394)

u parties cannot by submission confer jurisdiction on the court to entertain

proceedings beyond its authority (e.g. a dispute about title to foreign land).

4.3.2 Service out of the jurisdiction

Because of the presence rule English courts will not always have jurisdiction in cases
where jurisdiction would be appropriate (e.g. over an English contract made and
broken in England). There is some irony in this in that the rule itself sometimes gives
an English court jurisdiction in totally inappropriate cases, like the Maharanee of
Baroda case.

As a result, since 1852, it has been possible with permission to serve a claim form out
of the jurisdiction. This is now governed by the Civil Procedure Rules (CPR 6.30). The
jurisdiction is discretionary. The court will not give permission unless satisfied that
England is ‘the proper place in which to bring the claim’ (CPR 6.37(3)). The claimant
must show that:

u there is a serious issue to be tried

u the claim comes within one of the paragraphs of CPR 6.20

u England is the forum conveniens, that is, the forum in which the case can most
suitably be tried in the interests of the parties and the ends of justice (on which see
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460).

It is easier to establish that the English court will normally be regarded as the natural
forum in a claim in tort if the tort was committed in England (The Albaforth [1984] 2
Lloyd’s Rep 98).

There are 19 grounds for service outside the jurisdiction. The most important are:
Conflict of laws  4  Jurisdiction page 47

In relation to contract
u If the contract was made within the jurisdiction.

u If the contract was made through an agent trading or residing within the
jurisdiction.

u If the contract is governed by English law.

u If the contract contains a term that the court shall have jurisdiction to determine
any claim in respect of the contract (only if either the subject matter of the dispute
falls outside the EU jurisdiction regime or none of the parties to the contract is
domiciled in a Member State).

u If a breach of contract is committed within the jurisdiction.

In relation to tort
u If the claim is made in tort where

u damage was sustained within the jurisdiction, or

u the damage sustained resulted from an act committed within the jurisdiction.

The term ‘damge’ means either that ‘significant damage’ was sustained in England or
that the damage resulted from ‘substantial and efficacious acts’ committed by the
defendant in England: see Metall and Rohstoff AG v Donaldson Lufkin & Jenrette [1990] 1
QB 391, 437.

An interesting illustration is Berezovsky v Michaels [2000] 2 All ER 986. You should try to
read this case (which critics said could turn England into the libel capital of the world).

In relation to property
u Where the whole subject matter of the action is land within the jurisdiction, for
example an action for the recovery of land: see Agnew v Usher [1884] 14 QBD 78.

u Where a claim is brought to construe, rectify, set aside or enforce an act, deed, will,
contract, obligation or liability affecting land within the jurisdiction. For example
an action against the assignees; a lease for breach of covenant to repair (Tassell v
Hallen [1892] 1 QB 321).

u Where a claim is made for a debt secured on immovable property within the
jurisdiction. For example, an action for non-payment of a bank loan secured by a
mortgage of a house.

In relation to restitution
u Where the defendant’s alleged liability arises out of acts committed within the
jurisdiction. This includes an action for equitable relief for breach of confidence.
See Douglas v Hello! Ltd [2003] EWCA 139.

In relation to multiple defendants

u Where a claim is brought against a person duly served within or out of the
jurisdiction and a person out of the jurisdiction is a necessary or proper party to
the action. The second defendant will not be a ‘necessary or proper party’ if they
have a good defence in law to the claim and it is therefore bound to fail. Nor will
they be if the claimant’s rights are predominantly against the first defendant.
There is a particular reluctance to exercise the discretion to allow service out
of the jurisdiction under this lead, perhaps because it is not founded upon a
territorial connection between the claim, the subject matter of the action and the
jurisdiction of the English courts.
page 48 University of London

Self-assessment questions
1. B is domiciled in New York. A wishes to sue B in London. In what circumstances
can he do so?

2. Jurisdiction based on presence has been described as exorbitant. Why? Can it be

justified?

3. Your client, a Malaysian company, wishes to contest the jurisdiction of the

English court over it. The dispute arises out of a contract that an employee of the
Malaysian company made with an English company. Advise the company as to
how it can do this without submitting to the court’s jurisdiction.

4. Explain when an English court will give leave to serve a claim form on a
defendant in Russia where the claim is for damages for breach of contract.

5. There is a power station accident in Bulgaria and this causes damage to crops
on a farm in England. The farmer wishes to sue the Bulgarian power station in
England. Can he do this? Explain.

Summary
The traditional rules of jurisdiction require the defendant either to be present within
the jurisdiction of the courts of England and Wales or to submit to this jurisdiction.
There is also the possibility of serving a claim form out of the jurisdiction with the
leave of the court.

Reminder of learning outcomes

By this stage you should be able to:
u describe the circumstances in which an action may be commenced on a
defendant (a) within and (b) outside the jurisdiction of England and Wales
u explain what is meant by ‘presence’ and ‘submission to the jurisdiction’.

Sample examination questions

Question 1 A tennis player from California owes a considerable amount of
money to an English company. He will be in England for the Wimbledon tennis
championship next week. Can the company serve a claim form on him?
Question 2 Suppose (on the facts of Question 1) the tennis player decides not
to come. The contract concerned was made in California and there is no express
choice of applicable law. Can the company get permission to serve the claim form
on the player in California, out of the jurisdiction? Explain how.
Conflict of laws  4  Jurisdiction page 49

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can outline the historical background to the

jurisdiction rules laid down by the EU legislation   

I can explain the relationship between the EU regime

and the common law traditional rules   

I can describe the extent to which states and

international bodies are immune from the
  
jurisdiction of the English courts

I can explain the limits to the doctrine of state

immunity   

I can describe the circumstances in which an action

may be commenced on a defendant (a) within and
  
(b) outside the jurisdiction of England and Wales

I can explain what is meant by ‘presence’ and

‘submission to the jurisdiction’.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

4.1 Historical background  

4.2 Immunities  

4.3 Jurisdiction under the traditional rules  

page 50 University of London

Notes
5 The EU regime

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

5.1 The Brussels Regulation (recast) . . . . . . . . . . . . . . . . . . . . . 53

5.2 Special jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5.3 Exclusive jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

5.4 Jurisdiction agreements . . . . . . . . . . . . . . . . . . . . . . . . . 62

5.5 Other issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

5.6 The Brussels Regulation (recast) . . . . . . . . . . . . . . . . . . . . . 64

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

page 52 University of London

Introduction
This chapter discusses the Council Regulations 1215/2012 (Brussels Regulation (recast))
as it relates to jurisdiction in personam. It covers the scope of the Regulation –
anything outside this comes under traditional rules (see Chapter 4). The main basis of
jurisdiction is the domicile of the defendant.

The Brussels Regulation (recast) replaced the Brussels Regulation, which had been
the key European instrument on jurisdiction and enforcement issues in civil and
commercial matters and was applied by the courts of all 28 EU Member States. The
new instrument is applied from 10 January 2015 by the courts of 27 Member States, as
Denmark has indicated that it will opt into the Regulation at a later date (which has
not yet been announced). Pursuant to Article 66(1), the Brussels Regulation (recast)
applies to legal proceedings instituted on or after 10 January 2015. The Brussels
Regulation is repealed (Article 80) but remains relevant because:

1. It will continue to apply to judgments given in proceedings instituted before 10

January 2015 (Article 66(2)), and

2. Although there are many important amendments in the Brussels Regulation

(recast), as the latter is essentially a re-enactment of the Brussels Regulation, many
areas have been left unchanged. For example:

u the default rule under the Brussels regime (that defendants should be sued
in the courts of their domicile) remains untouched in the Brussels Regulation
(recast) (Article 4)

u the alternative grounds to found jurisdiction remain unrevised. This means

that for contractual claims, an alternative jurisdictional ground may be for
proceedings to be brought in the courts of the place of performance of the
contract (now Article 7(1)(a))

u in matters relating to tort, proceedings may be brought in the place where the
harmful events occurred or may occur (now Article 7(3))

u the further alternative jurisdictional grounds where there are related

proceedings, outlined in the existing Article 6, remain unchanged in the most
part. For example, where there are multiple defendants and the claims are
closely connected, a claimant may bring proceedings in the place where one
of them is domiciled (now Article 8(1)). As regards third party proceedings, a
claimant may bring proceedings in the court seised of the original proceedings
(now Article 8(2))

u the scope of the Brussels Regulation (recast) also remains largely unchanged.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u state the scope of the Brussels Regulation (recast)
u explain the concept of domicile used by the Brussels Regulation (recast)
u state the circumstances in which the defendant may be sued other than in the
place of their domicile and be familiar with the leading cases
u explain the significance of special jurisdiction and exclusive jurisdiction.

Core text
¢ Clarkson and Hill, Chapter 2 ‘Civil jurisdiction’, Section II ‘Bases of jurisdiction in
personam’, A ‘Bases of jurisdiction under the Brussels I Recast’.

Essential reading
¢ Hartley, Chapter 3 ‘Jurisdiction under EU law’; Chapter 4 ‘EU law: special
jurisdiction’, Chapter 8 ‘Choice-of-court agreements’, Sections 1 ‘Introduction’
and 2 ‘The European Union’; Chapter 10 ‘Jurisdictional conflicts: the EU
approach’; and Chapter 14 ‘EU law’ (available in Cambridge Core via the Online
Library).
Conflict of laws  5  The EU regime page 53

5.1 The Brussels Regulation (recast)

The Brussels Regulation (recast) applies in civil and commercial matters, whatever
the nature of the court or tribunal. It does not extend to revenue, customs or
administrative matters.

In civil law countries civil law is generally contrasted with public law. The Court of
Justice of the European Union (CJEU) has held that the concept ‘civil and commercial’
in the Convention (and hence the Regulation) must be given an autonomous meaning
in the light of ‘the objectives and scheme of the Convention’ and ‘the general
principles which stem from the corpus of the national legal systems’. LTU v Eurocontrol
[1976] ECR 1541 concerned a claim for route charges levied on aircraft owners by an
international organisation set up by treaty. The Convention did not apply where a
public authority was acting in exercise of its powers. In Netherlands State v Rüffer [1981]
3 CMLR 293, the CJEU held that the Dutch State was acting in the exercise of its powers
in respect of a public waterway when it sought to recover from a German shipowner
the costs of removing a wreck, even though under Dutch law this was classed as an
action in tort.

Exclusions
A number of matters were expressly excluded from the Regulation (Article 1(2)). They
relate to:

u status and legal capacity

u rights in property arising out of a matrimonial relationship

u wills and succession

u bankruptcy, including the winding up of insolvent companies

u social security

u arbitration.

5.1.1 Interpretation
Questions of interpretation under the Brussels Regulation (recast) can be referred to
the CJEU in accordance with the terms of Article 267 TFEU.

5.1.2 Domicile
The primary jurisdictional ground in the Brussels Regulation (recast) is domicile
(Article 4). Note that:

u domicile does not have the meaning that it has in the common law (imagine the
problems that would occur if you had to trace a potential defendant’s domicile
before you knew where you could sue them)

u domicile is not defined in the Regulation

u it is the domicile of the defendant with which we are concerned; the claimant’s
domicile is not relevant. See Société Josi Réinsurance v Universal General Insurance
[2000] 2 All ER (Comm) 467 confirming this

u different Member States of the EU have different definitions of domicile. There is

discussion as to whether an acceptable autonomous definition can be found, but
no progress has been made as yet.

Article 62 of the Brussels Regulation (recast) deals with the question of which
country’s definition of domicile is to be used. It states that the courts of the Member
State seised of the matter shall apply their own definition of domicile to determine
whether a person is domiciled in that Member State. And, to determine whether a
person is domiciled in another Member State, a court must apply the law of that state:
so if an English court, having decided that X is not domiciled in England, wants to know
whether X is domiciled in France, it must apply the French definition of domicile.
page 54 University of London
The definition of a domicile which each country uses is its own decision. In the UK, it
is: an individual domiciled in the UK if they are resident in the UK and the nature and
circumstances of their residence indicate that they have a substantial connection with
the UK, which will be presumed to be so (unless the contrary is proved) if they have
been resident in the UK for the last three months or more (see Civil Jurisdiction and
Judgments Order 2001, Schedule 1, para.9(2)).

Companies and other legal persons

As far as companies and other legal persons are concerned, the Brussels Regulation
(recast) provides a uniform rule. A company is domiciled at the place where it has its
statutory seat or its central administration or its principal place of business (Article
63(1)). In the UK, statutory seat means the registered office, or if there is no such office,
the place of incorporation, or if there is no such place, the place under the law of
which the formation of the company took place (Article 63(2)).

You will see that an individual can be domiciled in more than one Member State. A
company might have three domiciles. Can you see how?

Activity 5.1
Under the EU regime, where are the following ‘domiciled’?
a. X Ltd, a Panamanian company with German directors and central management
and control in Germany. (You can look at The Deichland [1990] 1 QB 361.)

b. Y, a French student studying for a degree in London. He spends each term in

London and returns to Paris in the vacations. He has not paid his rent and the
landlord wishes to sue him in London.

5.1.3 General jurisdiction

Article 4 of the Brussels Regulation (recast) provides that:

persons domiciled in a Member State shall, whatever their nationality, be sued on the
courts of that State.

The word ‘shall’ must not be taken literally: as we shall see, in some circumstances
(where there is exclusive jurisdiction) the defendant must be sued in the courts of a
Member State other than that of his or her domicile.

Mere physical presence in a Member State is not sufficient to establish domicile.

Contrast the common law basis for jurisdiction, discussed in Chapter 4.

Note that it is the defendant’s domicile at the moment of the issue of proceedings,
rather than their subsequent service on the defendant (see Canada Trust Co v
Stolzenberg (No.2) [2002] 1 AC 1), which is relevant.

Summary
The Brussels Regulation (recast) applies in civil and commercial matters, subject to
certain exclusions. Like the traditional rules, it takes domicile as the primary ground
for jurisdiction. Courts are to apply their own law’s definition of domicile in the case of
natural persons, but for companies, etc. there is a uniform rule. The Regulation must
be interpreted with regard to both its principles and its objectives; in general it seeks
to achieve a supranational approach.

Reminder of learning outcomes

By this stage you should be able to:
u state the scope of the Brussels Regulation (recast)
u explain the concept of domicile used by the Brussels Regulation (recast).
Conflict of laws  5  The EU regime page 55

5.2 Special jurisdiction

In addition to general jurisdiction, there is also special jurisdiction. Where special
jurisdiction exists, the claimant has a choice: they can sue where the defendant is
domiciled or where there is special jurisdiction.

The most important provisions on special jurisdiction form part of Article 7 of the
Brussels Regulation (recast). This provides that a person domiciled in a Member State
may be sued in another Member State in seven specified situations. Those relating
to contract, tort, branches and agencies, and maintenance are explained below; the
others are not significant for our purposes. Because Article 7 is seen as an exception to
the general rule, you will see that the CJEU has tended to interpret at least some of its
provisions narrowly.

5.2.1 Contract
The first of the situations deals with ‘matters relating to a contract’ (see Article 7(1) of
the Brussels Regulation (recast)).

The first thing we must address is what comes within ‘matters relating to a contract’.
The Member States do not always agree upon what is to be regarded as contractual.
The CJEU has ruled accordingly that the concept of ‘matters relating to contract’ is to be
regarded as an independent one, and is not to be tested by reference to national law.

For example, in Arcado Sprl v Haviland [1988] ECR 1539, a Belgian court asked the CJEU
whether proceedings relating to the repudiation of a commercial agency agreement
and the payment of commission under it were proceedings relating to contract. Under
Belgian law – and this is also the case in English law – such proceedings were for breach
of contract and for sums due under contract, but in France they may be delictual. The
CJEU was in no doubt that the claims were contractual because of their basis in an
agreement and in failure to comply with a contractual obligation.

An example where the CJEU did not find the claim contractual in nature is Handte et
Cie Gmbh v TMCS [1992] ECR 1-3967. The plaintiffs were a French company which had
bought metal-polishing machines from a Swiss company. They fitted to the machines
a suction system sold and installed by a French company: this had been manufactured
by a German company. Under French law, the plaintiff’s claim against the German
manufacturer that the equipment was unfit for its purpose was contractual, though
there was no contract between the plaintiffs and the German company. The CJEU held
it was not contractual. The Article only applies to cases in which there is an agreement
freely entered into between the parties. It added that in most of the (now) EU Member
States the claim would not be contractual.

English courts have also had to answer the question. In Kleinwort Benson v Glasgow
City Council, the House of Lords held (by 3–2) that a claim for restitution of money paid
under a purported contract which was void (it was a loan swap agreement) did not
fall within the Article, since it was not a matter relating to a contract. The House of
Lords said that where the claim was for the recovery of money paid under a supposed
contract which in law never existed, it was impossible to say that the claim for the
recovery of the money was based upon a particular contractual obligation. A claim in
restitution based upon the principle of unjust enrichment did not fall within Article
5(1) of the Brussels Convention, now Article 7(1) of the Brussels Regulation (recast).
The House of Lords steered clear of holding that a claim to restitution could never fall
within the Article. It thought there were circumstances in which it could be said that,
although the claim was for restitution, it was based on a contractual obligation.

In Agnew v Lansförsäkringsbølagens AB [2001] 1 AC 223, it was held by the House of

Lords that Article 5(1) (now Article 7(1) of the Brussels Regulation (recast)) extended
to certain pre-contractual obligations. The plaintiff sought to avoid a contract of
reinsurance on the ground that the defendant had failed to comply with the duty
to make a fair presentation of the risk. As a matter of English law, the defendant’s
obligation was extra-contractual. But the House of Lords held it was a matter relating
to contract within the Article. There is some tension between these two decisions. One
page 56 University of London
solution is to confine the decision in Kleinwort Benson to situations where the invalidity
of the contract is not in dispute.

This would mean that the mere allegation of a contract was enough to found
jurisdiction. Service may be set aside if there is no basis for the existence of a contract,
that is no serious question which calls for a trial.

Jurisdiction under the Article may be invoked even if the existence of the contract is
denied by the defendant (Effer SpA v Kantner [1982] ECR 825). And the Court of Appeal
has held (Boss Group Ltd v Boss France SA [1996] 4 All ER 970) that this is so even where
it is the claimant who denies the existence of the contractual relationship and seeks a
negative declaration that they are not bound by any obligation.

‘Place of performance of the obligation in question’

If the matter relates to contract, a person who is domiciled in a Member State may be
sued in another Member State if that is the place of performance of the obligation
in question. Under the Brussels Regulation (recast) two situations are distinguished:
disputes which arise out of contracts for the sale of goods and the provision of
services and contracts not falling within these categories (but which are not insurance
contracts, consumer contracts or individual employment contracts because these are
covered by other provisions in the Regulation).

Contracts not for the sale of goods or the provision of services are governed by Article
7(1)(a) of the Brussels Regulation (recast). Jurisdiction turns on the designation of the
obligation in question, and on the identification of the place of performance of that
obligation.

The ‘obligation in question’ is the obligation which is the basis of the action: see De
Bloos Sprl v Bouyer SA [1976] ECR 1497. Where the claim is based on more than one
obligation, jurisdiction is determined by the principal obligation. Thus, in Union
Transport plc v Continental Lines SA [1992] 1 All ER 161, English charterers could sue
Belgian shipowners in England in a claim arising out of the shipowners’ failure to
ship a cargo of telegraph poles from Florida to Bangladesh. Although Florida was the
place of performance of the obligation to provide the vessel, the House of Lords held
that the English court had jurisdiction over the entire claim under Article 5(1) (now
Article 7(1)) on the basis that the principal obligation was to nominate a vessel and
that nomination should have been made in London. See also Medway Packaging Ltd
v Meurer Maschinen GmbH [1990] 2 Lloyd’s Rep 112, where it was held that the English
distributor of German machinery could sue in England for the German manufacturer’s
repudiation because the principal obligation (which was the basis of the proceedings)
was the obligation to give reasonable notice of termination, and this was performable
in England at the distributor’s place of business.

If there are two independent obligations of equal significance, to be performed in two

different Member States, proceedings can be brought in two jurisdictions. An example
is Leathertex Divisione Sintetici SpA v Bodotex BVBA [1999] ECR 1-6747. Of course, the
claimant may be advised in such a situation to sue where the defendant is domiciled,
rather than use special jurisdiction under the Article.

Once the relevant contractual obligation has been determined, the next problem
is what law determines where it is to be performed. Article 7(1) does not give us an
answer. In Tessili v Dunlop [1976] ECR 1473, the CJEU held that it is for the court before
which the matter is brought to establish whether the place of performance is within
its jurisdiction, using its own conflict of laws rules. This is a rare deviation from
the normal approach of the CJEU, which is to look for an autonomous community
definition.

Can the parties confer jurisdiction on the courts of a Member State by specifying that
the performance of the obligation is deemed to be due there? In Zelger v Salinitri
(No.1) [1980] ECR 89, the CJEU held, they could, provided this was permitted by the law
applicable to the contract. But what if the agreed place of performance is fictitious,
that is to say it has no actual connection with the subject matter of the contract and
Conflict of laws  5  The EU regime page 57
is designed solely to establish jurisdiction? In Mainschiffahrts-Genossenschaft v Les
Gravières Rhénanes SARL [1997] ECR 1-911, the CJEU held that this could not be done.

Where a contract is for the sale of goods or the provision of services, Article 7(1)(b)
of the Brussels Regulation (recast) expressly identifies the place of performance.
Regarding these contracts, the Regulation adopts the ‘characteristic obligation’
theory – that is, jurisdiction is determined by reference to the place of performance of
the obligation which determines the nature of the contract. In the case of a contract
for the sale of goods, this is the seller’s obligation to deliver the goods. In the case
of a contract for the provision of services, it is the obligation to provide the services.
So, where the proceedings relate to a contract for the sale of goods, the place of
performance of the obligation in question is the place where, under the contract, the
goods were delivered or should have been delivered. The same rule applies to the
provision of services, namely that it is the place where the services were, or should
have been, provided. In both cases this is unless otherwise agreed.

The Article says nothing about what happens when the goods are to be delivered,
or the services provided, in more than one place. However, in Besix v WABAG [2003]
WLR 327 the CJEU held that jurisdiction cannot be conferred on the court within
whose jurisdiction any one of those places of performance happens to be located. So
jurisdiction has to be based on Article 2 – domicile.

Self-assessment questions
1. Article 7(1) of the Brussels Regulation (recast) provides that ‘in matters relating
to a contract the defendant can be sued in the courts for the performance of the
obligation in question’. Discuss critically the concepts involved in this provision,
and the interpretational difficulties courts have confronted.

2. Does an English court have jurisdiction to hear the following cases?

i. An action brought by an English bank to recover money paid to a Dutch local

authority under a contract which is void under the applicable law.

ii. An action brought by an English supermarket against a Spanish sherry

producer for supplying sherry of such poor quality that the supermarket had
to mark down the price immediately.

5.2.2 Tort
There is also special jurisdiction in tort. Article 7(3) of the Brussels Regulation (recast)
provides that the court has jurisdiction in matters relating to tort if England is the
place where the harmful event occurred or may occur. Where all the elements
constituting the tort occur in the same Member State, this is straightforward. It is
more difficult where the defendant acts in one place and the claimant is injured in
another.

The facts of Bier v Mines de Potasse d’Alsace [1976] QB 708 illustrate this well. A
French mining company discharged harmful chemicals into the Rhine in France as
a result of which a gardener in the Netherlands, who used polluted water from the
Rhine, suffered damage to his property. Could the plaintiff sue the defendant in the
Netherlands? (There was obviously no difficulty in suing him in France where he was
†
Read Bier v Mines de Potasse
domiciled.) The CJEU ruled that the harmful event occurs either where the damage
d’Alsace in which the court
occurs or at the place of the event giving rise to it. Do you think this is unduly pro-
gives a number of reasons
claimant? Or do you think we should give claimants this choice? Remember most
for coming to the conclusion
defendants will act where they are domiciled, so that any other interpretation would
that it does.
rarely be of any value to the claimant.†
One consideration here is
For applications of this rule see: that if the case was tried in
the Netherlands, it would be
u Shevill v Presse Alliance SA [1995] 2 AC 18 (victim of libel in a newspaper article can
conducted in the plaintiff’s
bring an action for damages against the publisher either where the publisher is own language (Dutch) rather
established or in each Member State in which the publication is distributed and than the language of a foreign
where reputation is injured. Whether the event is harmful is to be determined by country (France).
the substantive law of the national conflict of laws rules of the court seised).
page 58 University of London
u Domicrest v Swiss Bank Corp [1999] QB 548 (in an action for negligent misstatement
the place where the harmful event giving rise to the damage occurs is the place
where the misstatement originated and the place where the misstatement is
received and relied upon is likely to be the place where the damage is suffered).

The Article applies to cases of threatened wrongs as well. Thus, an English court would
have jurisdiction to grant an injunction to stop publication of defamatory material by
a publisher based in Spain.

One important limitation is that the claimant cannot, for example, confer jurisdiction
on the court of their domicile by alleging that, by suffering economic loss there,
they were the victim of a harmful act committed abroad. So when a French company
suffered loss when its German subsidiaries became insolvent as a result of the
negligent advice of a German bank, the French courts did not have jurisdiction under
the Article. Germany – the place where the event giving rise to the damage directly
produces its harmful effects upon the immediate victims – is also the place where the
damage occurs, even though it is in France that the claimant suffers injury (see Dumez
France SA v Hessische Landesbank [1990] ECR 49).

Applications of this are:

u Marinari v Lloyds Bank plc [1996] ALL ER (EC) 84 (an Italian who claimed that the
wrongful conduct of employees of Lloyds Bank in Manchester had led to his
arrest in England and seizure of promissory notes could not sue in Italy for the
exchange value of the promissory notes and for damage to his reputation. Article
7(3) could not be interpreted so extensively as to include any place where adverse
consequences of an event which had already caused actual damage elsewhere
could be felt).

u Henderson v Jaouen [2002] 2 All ER 705 (a person domiciled in England is injured in

a road accident in France. He can establish that he suffered an aggravation of his
injuries in England. Even though a worsening of his condition is a fresh cause of
action in France, the English courts do not have jurisdiction. The deterioration is a
consequence of the original harmful event, not a new harmful event).

Self-assessment questions
Answer the following questions about jurisdiction.
1. Does an English court have jurisdiction to hear an action brought by Jim from
London who sustained serious injuries in Rome as a result of the negligence of
Carlos, a Spanish domicilary?

2. Alice, who is domiciled in England, works in Italy as a tour guide every summer.
An article in an Italian newspaper about British tour guides says many of them
supplement their income by prostitution and shows a picture of Alice talking to
a man in the street. The newspaper circulates mainly in Italy, but 1,000 copies
are sold daily in Britain. Can Alice sue the newspaper in England?

3. Mary wishes to sue Dr Himmel, a German plastic surgeon who practises in Berlin.
He advertised plastic surgery in the English Sunday newspapers and Mary went
to his surgery in Berlin to have her ‘double chin’ removed. The operation has left
an unsightly scar. The cost was billed in Euros and Mary paid in England by credit
card. Mary wishes to know whether she can sue Mr Himmel in the English courts
or whether she has to sue him in Germany.

5.2.3 Branches, agencies and other establishments

A further important area of special jurisdiction appears in Article 7(5) of the Brussels
Regulation (recast). This gives the court jurisdiction to determine a dispute arising
out of the operations of a branch, agency or other establishment if the branch, agency
or other establishment is situated in England. The defendant must be domiciled in a
Member State.
Conflict of laws  5  The EU regime page 59

There are two main questions:

i. What is a ‘branch, agency or other establishment’?

ii. What disputes arise out of its operations?

As far as (i) is concerned it is clear that an autonomous meaning must be given to the
concept: the phrase cannot have different meanings in the different Member States (see
Somafer v Saar-Ferngas AG [1978] ECR 2183, 2190). It does not include distributors or sales
agents for goods of foreign companies. Thus, in De Bloos Sprl v Bouyer SA [1976] ECR 1497,
the CJEU held that an exclusive distributor was not a branch, etc. of the manufacturer. An
essential characteristic was that it had to be subject to the direction and control of the
parent body. And in Blanckaert and Willems PVBA v Trost [1981] ECR 819, an independent
commercial agent, who merely negotiated business, could arrange his own work and
could also represent competitors and whose function was to transmit orders to the
parent company, was held not to be a branch, agency or other establishment.

The CJEU also requires a branch, etc. to have a place of business which has the
‘appearance of permanency’ (see Somafer SA v Saar-Ferngas AG). In SAR Schutte GmbH
v Parfums Rothschild SARL [1987] ECR 4905, it held that, where the letterhead of a
German company appeared to indicate that it was acting as a place of business of a
French company, a third party which did business with it was entitled to rely on the
appearance thus created.

As far as (ii) is concerned, the CJEU in Somafer SA v Saar-Ferngas SARL explained that
the concept of ‘operations’ included: matters relating to the rights and obligations
concerning the actual management of the branch, etc.; undertakings entered into
at the place of business which had to be performed in the Member State where the
place of business was established; and also actions concerning torts arising from the
activities in which it had engaged.

One interesting application of the Article can be seen in Lloyd’s Register of Shipping
v Société Campenon Bernard [1995] All ER (EC) 531. An English company undertook,
through its French branch, to perform services in Spain (through its Spanish branch). It
was held that the French courts had jurisdiction under Article 7(5) in relation to a claim
for damages based on the defendant’s defective performance of the services in Spain.
Which courts would have had jurisdiction under Article 7(1) of the Brussels Regulation
(recast)? See also Anton Durbeck v Den Norske Bank [2003] QB 1160.

Self-assessment question
Bill, who lives in England, made the following contracts:
u He bought an air ticket from a Queasyjet shop in London to fly to Madrid (Spain).
Queasyjet is a Portuguese company with its registered office in London.
u He was measured for a suit by Franco, who lives in a hotel room, advertises in
the British local press, and arranges for clothes to be made by a tailor in Athens
(Greece).
The flight was cancelled, and the suit is falling apart. Bill wishes to sue Queasyjet
and the Greek tailoring company. Can he do so in England?

Other grounds for special jurisdiction

There are four other grounds for special jurisdiction under Article 7 of the Brussels
Regulation (recast), but only one of these has significance and this is limited.

Under para.2 of the Article a maintenance creditor (a concept widely defined: see
Farrell v Long [1997] QB 842) can sue the maintenance debtor where the creditor is
domiciled or habitually resident, in addition to being able to sue the debtor where
the debtor is domiciled. See also Moore v Moore [2007] EWCA Civ 361. Article 7(2) of
the Brussels Regulation (recast) is the most obviously pro-claimant of any of the
paragraphs of the Article. It is designed to protect the maintenance creditor, the
weaker party.
page 60 University of London

5.2.4 Suing multiple parties

Special jurisdiction also exists to facilitate litigation against multiple parties. To take
a simple example, C wishes to sue D1 and D2. D1 is domiciled in France, D2 in Italy.
Article 8 of the Brussels Regulation (recast) provides that C can sue D2 in France. This
is not only more convenient, it may also be more just as claims and defences are
litigated at the same time by the same court. It also avoids the difficulty which may
occur if different courts in different countries give irreconcilable judgments.

Article 8(1) of the Brussels Regulation (recast) provides that a person domiciled in a
Member State may be sued, where they are one of a number of defendants, in the
courts for the place where one of them is domiciled (that is, at the date of the issue of
the proceedings, not at the time when it is sought to join additional defendants). This
is permissible only if the claims are so closely connected that it is expedient to hear
and determine them together to avoid the risk of irreconcilable judgments resulting
from separate proceedings.

Paragraph 2 deals with the case where D wishes to join a further party to the proceedings
to shift liability, in whole or part, to D. For example, a French wine producer sells
sub-standard wine to a Dutch wholesaler who sells it to an English supermarket. If the
supermarket sues the wholesaler in the Netherlands, the wholesaler can use the Article
to join the French wine producer to the Dutch proceedings. A graphic illustration
involved the well-known British actor Roy Kinnear. He was injured in an accident while
making a ‘spaghetti western’ film in Spain. He subsequently died in hospital in Madrid.
His administrators sued the film company and the producer and director of the film,
all of whom were domiciled in England. They wished to join the Spanish orthopaedic
surgeon and the Madrid hospital (as third parties claiming contribution under the Civil
Liability (Contribution) Act 1978 and damages for breach of contract allegedly concluded
between the defendants and the hospital for the treatment of the actor). They were
allowed to do so (see Kinnear v Falcon Films NV [1996] 1 WLR 920).

Article 8(3) of the Brussels Regulation (recast) provides that a person domiciled in
a Member State may be sued, on a counterclaim, arising from the same contract or
facts on which the original claim was based, in the court in which the original claim
is pending. An illustration may assist. X AG, a company with its seat in Germany, buys
a machine from Y, who is domiciled in England, the price to be payable in Germany.
The machine does not work. X AG refuses to pay and sues Y in England for damages. Y
counterclaims for the unpaid price. The English court will have jurisdiction.

Self-assessment question
In what circumstances can a claimant bring an action against two parties in England
when only one of them is domiciled in England?

Summary
Special jurisdiction gives the claimant a choice of whether to sue where the defendant
is domiciled or where there is special jurisdiction. The EU regime extends this
jurisdiction to issues of contract, tort and situations where branches, agencies, etc. of
a company are concerned. The contract area is complicated by the different rules of
the laws of different EU Member States, the first question being whether the issue is
indeed one of contract. If it is a contract, a person domiciled in a Member State may be
sued in the ‘place of performance of the obligation in question’ as well as in the place
of domicile. Similarly, in tort the case can be heard where the harm occurred, as well
as where it originated. This makes things easier – perhaps too easy? – for the claimant.
Special jurisdiction also makes it easier to sue multiple parties who may be domiciled
in several different states.

Reminder of learning outcomes

By this stage you should be able to:
u state the circumstances in which the defendant may be sued other than in the
place of their domicile and be familiar with the leading cases.
Conflict of laws  5  The EU regime page 61

5.3 Exclusive jurisdiction

Article 24 of the Brussels Regulation (recast) allocates exclusive jurisdiction, regardless
of the defendant’s domicile, where the courts of a particular Member State are
thought to be uniquely placed to hear the dispute.

The Article has five paragraphs: only the first of these paragraphs is of concern to us
(it is also the only one to have provoked abundant litigation and interpretational
difficulties).

The provisions of the Article are exclusive and mandatory. They cannot be
circumvented by agreement or by the defendant submitting to another court. If
litigation is brought in breach of the Article, the court must decline to hear it of its
own motion.

Article 24(1) of the Brussels Regulation (recast) provides that the courts of a
Member State in which immovable property is situated have exclusive jurisdiction
in proceedings which have as their object rights in rem in, or in tenancies of, such
property. Thus, an English court cannot exercise jurisdiction over a defendant who is
domiciled in England where the dispute relates, for example, to the ownership of a
villa in Greece: only the Greek courts will have jurisdiction.

The CJEU has said that claims which seek to determine ‘the extent, content, ownership
or possession of immovable property or the existence of other rights in rem in it and
which seek to provide the holders of those rights with the protection of the powers
which attach to their interest’ come within the Article (see Reichert v Dresdner Bank
[1990] ECR 1–27, 41–42).

There are a number of decided cases. You should note Rösler v Rottwinkel, Webb v Webb
and Jarrett v Barclays Bank plc.

In Rösler v Rottwinkel [1986] QB 33 a German let property in Italy on a short-term

holiday lease to another German. Proceedings which arose from this had as their
object tenancies of immovable property and so litigation had to be brought in Italy
and could not be brought in Germany. In response to this decision, the Convention
was amended and proceedings can now be brought in the courts of the Member State
where the defendant is domiciled, where:

u the tenancy is for less than six months

u the tenant is a natural person

u the landlord and tenant are both domiciled in the same Member State.

In Webb v Webb [1994] QB 696 an English domiciled father put a villa in Antibes
(France) into the name of his son. When they quarrelled he sought it back. He brought
proceedings in England for a declaration that the son held it in trust and that he
should vest legal ownership in him. It was held that proceedings did not come within
Article 22(1) (now 24(1) of the Brussels Regulation (recast)). The claimant was not
claiming in rem rights, but seeking only to assert rights as against the defendant, so
that the claim is in personam. This reasoning was applied in Ashurst v Pollard [2001] Ch
595, where the English court had jurisdiction to make an order for the sale of a villa in
Portugal where, following the bankruptcy of one of the owners, that person’s trustee
in bankruptcy applied for such an order.

Jarrett v Barclays Bank plc [1999] QB 1 (a dispute which arose out of financing
arrangements concerning a timeshare contract relating to property in the Portuguese
region of Algarve) fell outside the Article. The court indicated that a timeshare
agreement itself could fall within the Article, but it has been suggested that it should
be regarded as a consumer contract within Article 15 (now Article 17 of the Brussels
Regulation (recast)), not a contract relating to the tenancy of immovable property.
This would assist timeshare tenants who otherwise would be compelled to litigate in
the situs.
page 62 University of London

Self-assessment question
Does an English court have jurisdiction to hear an action brought by an English
holidaymaker, Ben, who rented a villa in Portugal from a German woman, and found
when he arrived that the villa had been double-booked?
Ben wishes to sue for the return of his deposit, for the cost of the hotel he was
forced to take, and for lost enjoyment of a holiday, since the extra cost of the hotel
forced him to end his holiday one week early.

Summary
Under Article 24(1) of the Brussels Regulation (recast), courts of a Member State
have exclusive jurisdiction over proceedings relating to rights in rem or in tenancies
of immovable property situated within that jurisdiction. However, this has been
amended so that in cases of short-term tenancies where claimant and defendant are
both domiciled in the same jurisdiction, the case can be heard in that jurisdiction,
even if the property concerned is in another.

5.4 Jurisdiction agreements

5.4.1 Effect of agreements

This is one of the areas where the Brussels Regulation (recast) has introduced
significant changes. Under Article 23(1) of the Brussels Regulation, if the parties, one
or more of whom were domiciled in a Member State, had agreed that a court or the
courts of a Member State shall have jurisdiction, this would confer jurisdiction on
that court (or those courts), provided that the agreement satisfied certain formal
requirements.

Note that:

u this did not apply where the parties had chosen the courts of a non-Member State

u it did not matter that the defendant was not domiciled in a Member State so long
as the claimant was

u the dispute did not have to be related to the country whose jurisdiction is chosen.

Article 25 of the Brussels Regulation (recast) now gives jurisdiction to the courts of the
Member State chosen by the parties, regardless of their domicile.

Article 23(1) only applied if the jurisdiction agreement satisfied one of a range of
alternative formal requirements. It should have been:

a. in writing or evidenced in writing (if in electronic form there must have been a
durable record), or

b. in a form which accorded with practices which the parties had established
between themselves, or

c. in international trade or commerce in a form which accorded with a usage of

which the parties were, or ought to have been, aware, and which in such trade or
commerce was widely known to, and regularly observed by, parties to this type of
contract.

In most cases jurisdiction agreements will be in writing. But there are problematic
cases, for example a choice of jurisdiction clause in general conditions on the back
of a written and signed contract. The CJEU has held that the text of the contract must
contain an express reference to these general conditions (see Colzani v RÜWA [1976]
ECR 1831). Not only must there be a choice of jurisdiction clause in writing, but the
consensus on its application must also be in writing. Where there is an oral agreement
and a written confirmation is sent, if no objection is raised the agreement will be
regarded as ‘evidenced in writing’ (Berghoefer v ASA SA [1985] ECR 2699).
Conflict of laws  5  The EU regime page 63

An agreement not in writing or evidenced in writing may be effective under paras

(b) and (c). So, if parties make an oral contract for the carriage of goods and this is
subsequently confirmed when the carrier issues a bill of lading (which includes a
jurisdiction clause), para.(b) is satisfied if there is a business relationship between the
carrier and the shipper which is governed by the carrier’s general conditions which
contain a jurisdiction clause (see The Tilly Russ [1984] ECR 2417). Even in the absence of
such a relationship, a jurisdiction clause may be effective if it conforms to trade usages
(and thus meets the test in para.(c)).

Self-assessment question
Do jurisdiction agreements give the parties too much freedom?

5.5 Other issues

5.5.1 Submission to the forum

The court of a Member State has jurisdiction if the defendant enters an appearance
in that court, unless the appearance was entered to contest the court’s jurisdiction
(Article 26 of the Brussels Regulation (recast)). A defendant is not to be regarded as
having submitted if at the same time as contesting the court’s jurisdiction he or she
raises in the alternative a defence on the merits. The defendant must be domiciled in a
Member State.

This provision cannot be used to avoid the exclusive jurisdiction Article, but
submission will confer jurisdiction on a court even if a jurisdiction agreement allocates
it elsewhere.

5.5.2 Safeguarding the rights of the defendant

The rights of the defendant are safeguarded in two ways:

u a court of a Member State before which a defendant, who is domiciled in another

Member State, is sued, when he does not enter an appearance, is required to
examine of its own jurisdiction and declare of its own motion that it has no
jurisdiction, unless this is derived from the provisions of the Regulation

u a court of a Member State is to stay proceedings so long as it is not shown that the
defendant has been able to receive the document instituting the proceedings or
an equivalent document in sufficient time to enable him to arrange for his defence,
or that all necessary steps have been taken to this end.

5.5.3 Parallel actions (lis pendens rules)

Article 27 of the previous regime provided that ‘where proceedings involving the same
cause of action and between the same parties are brought in the courts of different
Member States, any court other than the court first seised shall of its motion stay its
proceedings until such time as the jurisdiction of the court first seised is established’.
Again this is an area where the Brussels Regulation (recast) has introduced important
changes.

5.5.4 Third state proceedings

Under the Brussels Regulation, it was not clear whether proceedings brought
in a Member State court could be stayed where there were identical or related
proceedings pending in a non-Member State court and the nature of the action
meant that it should be heard in that particular state or where there was an exclusive
jurisdiction agreement in favour of that state. This is now clarified by Articles 33 and 34
of the Brussels Regulation (recast).
page 64 University of London

5.5.5 Arbitration agreements

Arbitration agreements fell outside the scope of the Brussels Regulation. This position
was somewhat challenged as a result of the decision of the CJEU in the West Tankers
case (C-185/07). According to the Court, despite the fact that the Regulation excluded
arbitration from its scope, it applied to anti-suit injunctions granted to give effect to
arbitration agreements. The Court first examined whether the proceedings sought to
be prevented fell within the scope of the Regulation and then considered the effects
of the anti-suit injunction on those proceedings. It stated in para.26 that :

… if, because of the subject-matter of the dispute, that is, the nature of the rights to be
protected in proceedings, such as a claim for damages, those proceedings come within
the scope of Regulation No 44/2001, a preliminary issue concerning the applicability of an
arbitration agreement, including in particular its validity, also comes within its scope of
application…

This decision has now been at least partly overturned as a result of the introduction of
Recital 12 of the Brussels Regulation (recast).

5.6 The Brussels Regulation (recast)

For a useful discussion of the changes, read:

¢ Garvey, S. and K. Birch ‘Brussels Regulation (recast): an update’ (Allen & Overy
LLP, 2015) http://bit.ly/1PgnSIB

As Garvey and Birch discuss, the Brussels Regulation (recast) has effected the following
changes to the Brussels Regulation.

u Expansion of the scope of the application of the rules relating to jurisdiction

agreements.

u Changes to the related actions (or lis pendens) provisions where there is an
exclusive jurisdiction clause. These amendments are aimed at addressing the
problem of the so-called ‘Italian torpedo’. The new provision enables a Member
State court specified in an exclusive jurisdiction clause to proceed to determine
a dispute, even if proceedings have been commenced first (in breach of contract)
before another court of a Member State.

u Introduction of new rules concerning third state matters and defendants.

u The abolition of exequatur.

u Introduction of an enhanced exclusion of arbitration.

The Brussels Regulation (recast) has also introduced changes to the rules relating to
consumers and employment contracts.

5.6.1 New rules on jurisdiction agreements (Article 25)

The Brussels Regulation recognised jurisdiction agreements, subject to certain
limitations and exceptions. For a jurisdiction clause to satisfy the test set out in Article
23, the following conditions should have been satisfied.

u At least one party should have been domiciled in a Member State.

u A Member State court should have been specified in that jurisdiction clause.

The Brussels Regulation (recast) introduces several changes to Article 25.

If the parties, one or more of whom is domiciled in a Member State, have agreed that
a court or the courts of a Member State are to have jurisdiction to settle any disputes
which have arisen or which may arise in connection with a particular legal relationship,
that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive
unless the parties have agreed otherwise.
Conflict of laws  5  The EU regime page 65

If the parties, regardless of their domicile, have agreed that a court or the courts of a
Member State are to have jurisdiction to settle any disputes which have arisen or which
may arise in connection with a particular legal relationship, that court or those courts
shall have jurisdiction, unless the agreement is null and void as to its substantive validity
under the law of that Member State. Such jurisdiction shall be exclusive unless the parties
have agreed otherwise.

The domicile requirement for parties to an Article 25 jurisdiction agreement is no

longer present and as such a jurisdiction clause falls within the scope of Article 25 even
if none of the parties are domiciled in a Member State. This change has significantly
expanded the scope of jurisdiction agreements that fall within the application of the
Brussels Regulation (recast).

Additionally, Article 25(1) ‘provides that the question of whether a jurisdiction

agreement is null and void as to its substantive validity will be determined under the
law of the Member State identified in the jurisdiction agreement’ (Garvey and Birch,
2015). Furthermore, Recital 20 provides that, where a question arises as to whether a
clause ‘is null and void as to its substantive validity, that question should be decided in
accordance with the law of the Member State of the court or courts designated in the
agreement’.

Finally, Article 25(5) provides that ‘an agreement conferring jurisdiction which forms
part of a contract shall be treated as an agreement independent of the other terms
of the contract’. ‘This new provision enshrines the principle of separability into
EU law… The limits on party autonomy in the employment, consumer and (more
controversially) insurance context remain.’ (Garvey and Birch, 2015)

5.6.2 Revisions to the related actions (lis pendens rules)

As Garvey and Birch note, under the old regime, if proceedings involving the same
cause of action and between the same parties were brought in the courts of different
Member States, then the court second seised should stay its proceedings until
the court first seised has determined whether it has jurisdiction to hear the claim
(Article 27). That was the case even if the proceedings were brought in the first seised
courts in breach of a jurisdiction clause. This rule was abused by potential judgment
debtors who had contractually agreed to litigate disputes exclusively in the courts
of one jurisdiction but who sought to delay judgment being entered against them
in those courts. They did this by commencing proceedings in the courts of another,
generally slow moving, jurisdiction as soon as a dispute arose, with Italy often being
the preferred forum. When the potential judgment creditor then commenced
proceedings in the courts chosen in the jurisdiction clause, those courts were forced
to stay their proceedings pending a decision on jurisdiction from the court first seised.
This tactic, widely known as the Italian torpedo, could lead to significant delays in
obtaining judgment and in some cases could render judgment ineffective.

Recital 22 of the Brussels Regulation (recast) refers to the need to enhance the
‘effectiveness of exclusive choice of court agreements’ and the need to avoid ‘abusive
litigation tactics’. In that context, Article 29 is expressed without prejudice to Article
31(2), which provides that:

… where a court of a Member State on which an agreement as referred to in Article 25

confers exclusive jurisdiction is seised, any court of another Member State shall stay the
proceedings until such time as the court seised on the basis of the agreement declares
that it has no jurisdiction under the agreement.

That means that the court designated in an exclusive jurisdiction clause can continue
to hear a claim without waiting for the court first seised to stay its proceedings.
Article 29(2) imposes some communication requirements upon Member State courts
if requested to notify another Member State court when they were seised with
proceedings (Article 32).
page 66 University of London

5.6.3 Third state matters (Articles 33 and 34)

Read the section of Garvey and Birch entitled ‘Third state matters: new international lis
pendens rule (Articles 33 and 34)’ to learn about these changes.

5.6.4 The abolition of exequatur

One of the most significant changes introduced by the Brussels Regulation (recast)
is the abolition of the exequatur procedure. Under Articles 38 and 39, judgments of a
Member State are recognised and enforced in other Member States. The requirement,
thus, for a declaration of enforceability in the courts of the Member State in which
enforcement is sought, no longer exists. What will suffice is a copy of the judgment,
a standard form certificate (pursuant to new Article 53) and a translation of these
documents, if that is required by the competent judicial authority of the required
Member State. The Brussels Regulation (recast) also provides that if the judgment
being enforced contains measures that do not form part of the legal system of the
Member State of enforcement, the latter can adapt them to a measure known to that
Member State (Article 54). It should be noted, finally, that the grounds for refusing
recognition and enforcement remain mostly unchanged.

5.6.5 The exclusion of arbitration: from West Tankers to Gazprom

Read the section of Garvey and Birch entitled ‘The arbitration exclusion’ to learn about
these changes.

One interesting comment that can be made in this context is that the introduction in the
Brussels Regulation (recast) of Recital 12 has at least in part overturned the decision of
the CJEU in Allianz v West Tankers (C-185/07). There the CJEU famously ruled that in cases
of parallel arbitration and court proceedings, courts of any Member State, including
the courts of the seat of arbitration, were obliged to stay their proceedings pending a
decision of the court first seised. The Brussels Regulation (recast) clarifies the situation
by stating that courts of Member States are now free to apply their own national law to
any dispute in relation to an arbitration agreement and can order the parties to initiate
arbitration even if court proceedings are pending in another EU Member State.

As a result of the introduction of Recital 12, it was widely expected that the CJEU would
revisit its decision in West Tankers at some point in the future. The opportunity to
do so arose in Gazprom OAO v Republic of Lithuania (C-536/13). In Gazprom, a dispute
arose between Gazprom OAO and Lithuania concerning a shareholder agreement,
which contained an arbitration clause providing that disputes would be settled by
arbitration. Lithuania commenced proceedings against Gazprom OAO in Lithuania,
with Gazprom OAO subsequently commencing arbitration in Stockholm arguing that
the proceedings brought by Lithuania were in breach of the arbitration agreement.
The Swedish court ordered Lithuania to withdraw or limit certain claims and issued
an anti-suit injunction. The Appeal Court and Supreme Court in Lithuania refused to
recognise and enforce the arbitration award. Citing West Tankers, they opined that
such a decision would be contrary to the Brussels Regulation. The Lithuanian Supreme
Court subsequently referred to the CJEU the question of whether a Member State
court could grant an injunction against a party bound by an arbitration agreement to
prevent them from initiating proceedings in the courts of another Member State in
breach of the arbitral agreement.

The CJEU held that the proceedings for the recognition and enforcement of arbitral
awards are covered by the applicable national and international law in the Member
State and not by the Brussels Regulation (it is notable that no reference was made
to the Brussels Regulation (recast)). It held that the Brussels Regulation should
‘be interpreted as not precluding a court of a Member State from recognising and
enforcing, or from refusing to recognise and enforce, an arbitral award prohibiting a
party from bringing certain claims before a court of that Member State’.

It is important to note that this decision did not revisit the judgment in West Tankers,
as the latter related to an injunction issued by a court of a Member State instead of an
arbitral tribunal.
Conflict of laws  5  The EU regime page 67

It should also be pointed out that the Brussels Regulation (recast) does not change
the existing rule in respect of anti-suit injunctions which are not available in the EU if
they concern proceedings before another Member State court even in cases where
the injunction is in support of an arbitration agreement. The CJEU has repeatedly held
that ‘intra-EU’ anti-suit injunctions contravene the principle of mutual trust between
courts, which is the key principle underpinning the Brussels regime.

The decision was appealed before the Lithuanian Court of Appeal, which rejected it
on the basis that, among other things, the arbitral award prevented a national court
from determining whether it had jurisdiction. That was contrary to both national
and international public policy. The Ministry argued that recognition of the arbitral
award would contravene Regulation 44/2001 (Brussels Regulation). This decision
was appealed before the Lithuanian Supreme Court, which referred the following
questions to the CJEU:

(1) Where an arbitral tribunal issues an anti-suit injunction and thereby prohibits a party
from bringing certain claims before a court of a Member State, which under the rules
on jurisdiction in [Regulation No 44/2001] has jurisdiction to hear the civil case as to the
substance, does the court of a Member State have the right to refuse to recognise such
an award of the arbitral tribunal because it restricts the court’s right to determine itself
whether it has jurisdiction to hear the case under the rules on jurisdiction in [Regulation
No 44/2001]?

(2) Should the first question be answered in the affirmative, does the same also apply
where the anti-suit injunction issued by the arbitral tribunal orders a party to the
proceedings to limit his claims in a case which is being heard in another Member State
and the court of that Member State has jurisdiction to hear that case under the rules on
jurisdiction in [Regulation No 44/2001]?

(3) Can a national court, seeking to safeguard the primacy of EU law and the full
effectiveness of [Regulation No 44/2001], refuse to recognise an award of an arbitral
tribunal if such an award restricts the right of the national court to decide on its own
jurisdiction and powers in a case which falls within the jurisdiction of [Regulation No
44/2001]?

The CJEU relied on Article 1(2)(d) of the Brussels Regulation, and not the Brussels
Regulation (recast) which, in the meantime, had come into force. The court held that
proceedings for the recognition and enforcement of arbitral awards are covered by
the national and international law applicable in the Member State and not by the
Brussels Regulation. It stated that the Brussels Regulation: ‘must be interpreted as not
precluding a court of a Member State from recognising and enforcing, or from refusing
to recognise and enforce, an arbitral award prohibiting a party from bringing certain
claims before a court of that Member State’.

Gazprom goes a long way in clarifying matters relating to arbitration. It confirmed

that arbitration falls outside the ambit of the Brussels I Regulation (and obviously
the Brussels Regulation (recast)) and that arbitral tribunals cannot be prevented
by the Brussels I Regulation (and now the recast) from issuing anti-suit injunctions.
It also made clear that Member State courts should deal with issues relating to the
recognition and enforceability of arbitral awards by referring to their own domestic
and applicable international laws (in this case the New York Convention).

Very importantly, however, the judgment did not reverse the decision in West Tankers,
as the latter related to an injunction issued by a court of a Member State instead of an
arbitral tribunal.

Reminder of learning outcomes

By this stage you should be able to:
u explain the significance of special Jurisdiction and exclusive jurisdiction.
page 68 University of London

Sample examination questions

Question 1 Article 2 of the Brussels Regulation (recast) provides ‘subject to the
provisions of this Regulation, persons domiciled in a Member State shall, whatever
their nationality, be sued in the courts of that state’.
Explain this, and discuss its implications.
Question 2 In your view is the Brussels Regulation (recast) too pro-claimant?
Question 3 Mike, an English resident, while driving through France on holiday,
bought a new tyre from a motor accessory shop owned by Belgian Autos, a
company incorporated in Belgium but with its head office in Luxembourg. Mike
was handed a receipt, on the back of which was a statement that ‘all disputes are
subject to the jurisdiction of the Belgian courts’. The tyre was manufactured by
Italia Tyres, an Italian incorporated company. The tyre was unsafe if the car was
driven at over 60 miles per hour. No warning of this was given to Mike when he
bought the tyre. The tyre exploded while Mike was driving in Germany at 80 miles
per hour (this speed is lawful in Germany). Mike was badly injured. After initial
treatment in Germany he was flown to England for hospital treatment. He is still in
considerable pain one year after the accident, and can no longer work. He wishes to
sue Belgian Autos and Italia Tyres.
Advise Mike where he can sue.
Conflict of laws  5  The EU regime page 69

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can state the scope of the EU regime

  
I can explain the concept of domicile used by the
Brussels Regulation (recast)   

I can state the circumstances in which the defendant

may be sued other than in the place of his or her
  
domicile and be familiar with the leading cases

I can explain the significance of special jurisdiction

and exclusive jurisdiction   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

5.1 The Brussels Regulation (recast)  

5.2 Special jurisdiction  

5.3 Exclusive jurisdiction  

5.4 Jurisdiction agreements  

5.5 Other issues  

5.6 The Brussels Regulation (recast)  

page 70 University of London

Notes
6 Stays and restraint of proceedings

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

6.1 Stays of English proceedings . . . . . . . . . . . . . . . . . . . . . . . 73

6.2 Foreign jurisdiction clauses . . . . . . . . . . . . . . . . . . . . . . . . 75

6.3 Restraint of foreign proceedings . . . . . . . . . . . . . . . . . . . . . 77

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

page 72 University of London

Introduction
We have seen when an English court has jurisdiction. But in this chapter we will see
that it does not have to exercise it. It may stay the proceedings. In effect this may force
a claimant to sue abroad, or to seek arbitration. The power to stay is derived from the
court’s inherent jurisdiction. It is exercised in three situations:

u where the doctrine of forum non conveniens applies

u where there is a foreign choice of jurisdiction clause

u where there is an agreement on arbitration.

English courts cannot regulate foreign courts in the same way. So they cannot stay
proceedings in a foreign court. However, they have developed what is called the
anti-suit injunction which attempts to restrain a party from litigating in a foreign
court. The injunction is to the litigant, not the foreign court. But, of course, its effect
is to restrain litigation in another jurisdiction and for that reason is to be exercised
cautiously. Here we examine the circumstances in which an anti-suit injunction may
be granted. By the end of the chapter you should understand these, and in particular
the differences between the way this jurisdiction is exercised and the forum non
conveniens doctrine.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the concept of forum non conveniens and the two-stage inquiry that is
involved
u explain the significance of a foreign jurisdiction clause and the effect of an
arbitration agreement
u explain and give examples of anti-suit injunctions
u state the general basis on which anti-suit injunctions may be granted.
Conflict of laws  6  Stays and restraint of proceedings page 73

6.1 Stays of English proceedings

Core text
¢ Clarkson and Hill, Chapter 2 ‘Civil jurisdiction’, Section III ‘Declining jurisdiction
and staying proceedings’, B.1 ‘The development of the doctrine’, 2 ‘General
principles’ and 3 ‘The effect of a dispute-resolution clause’.

6.1.1 The doctrine of forum non conveniens

The current doctrine of forum non conveniens crystallised in the Spiliada case [1987]
AC 460. Until the late 1970s or early 1980s English courts had been reluctant to stay
English proceedings. Some judges had even seen English justice as a boost to the
British economy – Lord Denning once quipped that ‘ours was a good forum to shop
in’. But in The Abidin Daver [1984] AC 398 Lord Diplock said that ‘judicial chauvinism has
been replaced by judicial comity’.

The basic principle is set out by Lord Goff in the Spiliada case:

… a stay will only be granted on the ground of forum non conveniens where the court
is satisfied that there is some other available forum, having jurisdiction, which is the
appropriate forum for trial of the action, i.e in which the case may be tried more suitably
for the interests of all the parties and the ends of justice.

A two-stage inquiry is involved. The first stage requires the defendant to show that
there is another available forum which is clearly more appropriate. The second stage is
concerned with the requirements of justice.

What is the appropriate forum?

To satisfy the first stage the defendant must show that:

u there is another available forum, and

u it is clearly more appropriate.

We will first look at the issues involved in deciding that there is another available
forum. This should not be a difficult inquiry but it has been complicated by a decision
of the Court of Appeal in Mohammed v Bank of Kuwait [1996] 1 WLR 1483. The case
involved an Iraqi plaintiff who had worked in Kuwait for a Kuwaiti bank. He wished to
sue in England because he could not go to Kuwait and because there were restrictions
on his ability to have a legal representative of his choice. The Court of Appeal held
that another forum had to be ‘available in practice to the plaintiff to have his dispute
resolved’. But this is an issue that goes to the second stage of the inquiry where the
burden shifts to the claimant. A subsequent Court of Appeal (in Askin v Absa Bank [1999]
L S Gaz R.32) accepts this criticism and, as we shall see, the House of Lords in Connelly
v RTZ Corp [1998] AC 854 were clear that injustice which took the form of not being
able to try a case abroad because of the lack of financial assistance arose at the second
stage of the inquiry. Perhaps therefore too much significance should not be attached
to the Mohammed ruling.

The other forum must be clearly more appropriate. The court will look to connecting
factors. These will include factors relating to convenience and expense such as the
availability of witnesses and factors such as the law governing the relevant transaction,
and the place where the parties reside and carry on business. An example is seen in
Rockware Glass Ltd v MacShannon [1978] AC 795. Four Scotsmen suffered industrial
injuries in Scotland. The defendants were English companies with registered offices in
England. All the witnesses, including the medical ones, lived in Scotland. Writs were
served at the English registered office, so that the English court clearly had jurisdiction.
But should it exercise it? The defendants thought not, and they convinced the court
that the appropriate (‘natural’) forum for trial was Scotland. Every significant factor
pointed to Scotland. A stay was granted.
page 74 University of London
Absence of a ‘more appropriate’ forum
There are cases where there is no clearly more appropriate forum abroad because
there is more than one such forum abroad and none of them is clearly more
appropriate than the other(s). So in European Asian Bank AG v Punjab and Sind Bank
[1982] 2 Lloyd’s Rep 356, a West German sued an Indian bank for payment under a letter
of credit following events in India and Singapore. A stay was refused because neither
India nor Singapore was clearly more appropriate for the trial of the action than
England.

The requirements of justice

The second stage of the inquiry looks to the requirements of justice. At this point
the burden of proof shifts to the claimant who must justify his or her claim to sue in
England. On this you should read Connelly v RTZ Corp plc [1998] AC 854. The plaintiff
was domiciled in Scotland and worked in a uranium mine operated by a Namibian
subsidiary of the defendant, an English company. He suffered cancer and sued the
defendant and one of its English subsidiaries for negligence in England. No financial
assistance was available to the plaintiff in Namibia, but it was available in England.
The first instance judge granted a stay. The Court of Appeal and the House of Lords
considered this wrong. The plaintiff accepted that Namibia was the jurisdiction with
which his action had the closest connection, so that prima facie a stay should be
granted. But it was held that it should nevertheless be refused because justice so
required. Lord Goff noted that if there is a clearly more appropriate forum overseas,
generally speaking the plaintiff will have to take that forum as he finds it, even if it is
less advantageous to him than the English forum. In normal circumstances, therefore,
the court will not refuse to grant a stay because of the absence of financial assistance
in the overseas forum. Connelly† was an exceptional case, one that could not be tried at †
A note on Connelly: when he
all without the benefit of financial assistance because the issues, particularly medical sued RTZ in England he lost!
issues relating to causation, were complex. You might read Lord Hoffmann’s dissent:
do you agree with his arguments?

A similar case is Lubbe v Cape plc [2000] 4 All ER 268. The case was brought by nearly
3,000 South African claimants and Cape plc in the English courts despite South Africa
being the most appropriate forum. The action arose out of the asbestos business
carried on by South African subsidiaries of Cape plc. Many of the claimants had been
employed by the subsidiaries, and were injured in the course of their employment.
Others lived in the vicinity of the subsidiaries’ factories. The claimants argued that
their action was against the parent company and its failure to impose proper health
and safety measures on its subsidiaries. The parent company is incorporated in
England, and is therefore subject to the English court’s jurisdiction. It agreed, however,
to submit to the jurisdiction of the South African courts, which made the South African
courts ‘available’ to the claimants. Of course, this enables an English company to
decide to be sued where it is more advantageous to it, and also make it more difficult
for claimants to know where to sue. The CA had held that South Africa was the most
appropriate and natural forum, and the claimants did not appeal against this part of
the judgment. They appealed the CA’s ruling that substantial justice could be done
in South Africa. Lord Bingham, following Lord Goff in Connelly, said that normally
claimants must take the clearly more appropriate forum as they find it, but that in
exceptional circumstances the absence of certain advantages could amount to a
denial of substantial justice. The claimants argued that the English proceedings were
financed by a contingency fee agreement which was not available in South Africa. This,
the HL held, was sufficient to refuse a stay, thus enabling proceedings to take place in
England.

The House of Lords also addressed the question that a stay of proceedings could
amount to a breach of the European Convention on Human Rights, that if proceedings
could not continue because of lack of funding, the claimants would be deprived of a
fair trial. Lord Bingham responded that the application of the Spiliada principles meant
that:
Conflict of laws  6  Stays and restraint of proceedings page 75
he would not conceive that the court would grant a stay in any case where adequate
funding and legal representation of the claimant were adjudged to be necessary in the
doing of justice and these were clearly shown to be unavailable in the foreign forum
though available here.

Thus English parent companies who operate through subsidiaries in Third World
countries may well find themselves sued in England.

Self-assessment question
Write a summary of Section 6.1 in no more than 100 words.

6.2 Foreign jurisdiction clauses

Because contractual obligations should be honoured, there is a prima facie rule
that an action brought in England in breach of an agreement to submit to a foreign
jurisdiction will be stayed. However, the court has a discretion, and may allow an
action to continue if the ends of justice will be better served by a trial in this country.

6.2.1 Discretion to stay an action

The principles on which the decision whether or not to stay an action were set out in
The Eleftheria [1970] P 94. They are that:

u the court is not bound to grant a stay: it has a discretion

u the discretion should be exercised in favour of a stay unless strong cause for not
doing so is shown

u the burden of proving such strong cause is on the claimant

u in exercising its discretion the court should take account of all the circumstances
of the case.

In particular, the following matters should be looked to:

u where the evidence is and the effect of this on convenience and expense of trial

u whether the law of a foreign court applies

u with what country the parties are connected

u whether D is genuinely seeking trial in the foreign country or merely procedural

advantages

u whether C would be prejudiced by having to sue in the foreign country because he

would:

a. be deprived of security for his claim

b. be unable to enforce any judgment

c. be faced with a time bar not applicable in England, or

d. for ‘political, racial, religious or other reasons be unlikely to get a fair trial’.

In addition, judges should not be drawn into making comparisons between the two
systems of justice in the English courts and the relevant foreign court (The El Amria
[1981] 2 Lloyd’s Rep 119).

You will notice that the factors listed are broadly similar to those considered under
the doctrine of forum non conveniens. But the principle that parties should abide by
their agreement makes the English courts less reluctant to stay English proceedings
where there is a foreign jurisdiction clause. Since the starting point is that they should
be stayed, the burden is on the claimant to show why not. In cases of forum non
conveniens it is on the defendant.
page 76 University of London
How then does a claimant escape from an exclusive jurisdiction clause? He cannot do
so by framing his claim in tort. This too obvious strategem was squashed in The Sindh
[1975] 1 Lloyd’s Rep 372. He can escape from it by showing that it is void. To do this it is
necessary to show that the foreign jurisdiction clause is of no effect (or that the whole
agreement is void). For example see Trendtex Trading Corp v Crédit Suisse [1982] AC 679
(an assignment of a cause of action in England was void as being against English public
policy but this did not vitiate the jurisdiction agreement in favour of the Swiss courts).

An exclusive jurisdiction clause may also be void because of the terms of a statute. Thus
an exclusive jurisdiction clause in a bill of lading in breach of the Carriage of Goods by Sea
Act 1971 (which incorporated the Hague-Visby Rules) which had the effect of lessening
the carrier’s liability was held to be null and void (The Hollandia [1983] 1 AC 565).

6.2.2 Arbitration agreements

These are governed by the Arbitration Act 1996.

An English court is required to grant a stay of proceedings only if a number of

conditions are satisfied. These are:

u the arbitration agreement must be ‘in writing’ (s.5); this is defined broadly

u the legal proceedings in question must be ‘in respect of a matter which under the
agreement is to be referred to arbitration’ (s.9(1))

u the arbitration agreement must not be ‘null and void, inoperative or incapable of
being performed’ (s.9(4))

u the defendant has not submitted to the court’s jurisdiction by taking a step in the
proceedings to answer the substantive claim (s.9(3))

u the subject matter of the dispute must be capable of settlement by arbitration.

If these conditions are satisfied, the defendant is entitled to a stay.

Self-assessment questions
1. Explain the doctrine of forum non conveniens. Distinguish the two stages of the
enquiry. Why does the burden shift at the second stage?

2. Does the application of the forum non conveniens doctrine encourage litigants to
come to English courts? Does it encourage ‘forum shopping’?

3. In what circumstances may an English court compare the respective merits of

‘English justice’ with that found in a foreign jurisdiction?

4. Discuss the implications of a jurisdiction agreement in relation to bringing

proceedings elsewhere. Does an arbitration agreement have the same effect?

5. Consider the view that the decisions in Connelly v RTZ and Lubbe v Cape plc have
made it too easy to sue global corporations in England.

Summary
That an English court has jurisdiction does not mean that it will accept it. Where the
English court is not the forum conveniens or where there is a foreign jurisdiction clause
or arbitration agreement pointing to trial in another country, the court has discretion
to stay the English action.

Reminder of learning outcomes

By this stage you should be able to:
u explain the concept of forum non conveniens and the two-stage inquiry that is
involved
u explain the significance of a foreign jurisdiction clause and the effect of an
arbitration agreement.
Conflict of laws  6  Stays and restraint of proceedings page 77

6.3 Restraint of foreign proceedings

Core text
¢ Clarkson and Hill, Chapter 2 ‘Civil jurisdiction’, Section III ‘Declining jurisdiction
and staying proceedings’, B.5 ‘The Brussels I Regulation and non-Member States’,
Section IV ‘Provisional measures’ and Section V ‘Restraining foreign proceedings:
anti-suit injunctions’.

Anti-suit injunctions
There are three categories of case in which an English court may grant an anti-suit
injunction:

u where a person has behaved, or threatened to behave, in a manner which is

unconscionable (his conduct is ‘vexatious or oppressive’)

u where a person has invaded, or threatened to invade, the legal or equitable right of
another

u where the bringing of the proceedings abroad would be in breach of an

agreement.

The first category is where the pursuit of proceedings abroad is vexatious or

oppressive. See Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871.
It is not easy to define what is meant by ‘vexatious’ or ‘oppressive’. It is not easy to
draw the line between litigation to obtain an unfair advantage (this is vexatious or
oppressive) and litigation to obtain an advantage of which it would be unjust to
deprive the claimant (which is clearly not vexatious or oppressive).† †
Remember that an anti-suit
injunction does not purport
In the Aérospatiale case, the Privy Council (sitting on appeal from the Court of Appeal
to halt foreign proceedings: it
in Brunei) held that an injunction should be granted to restrain the plaintiff from
prevents an individual within
continuing proceedings in Texas. The Brunei court was the natural forum – this was
the jurisdiction of the English
where the helicopter crash took place and where the businessman who was killed courts from pursuing such
and his widow were resident – and the continuance of the Texas litigation would be proceedings.
vexatious or oppressive because the defendants would suffer serious injustice in being
unable in those proceedings to claim an indemnity from a third party. They were able
to claim this in the Brunei court, because the third party was willing to submit to the
courts of Brunei, but not to those of Texas.

In Midland Bank plc v Laker Airways Ltd [1986] QB 689, an anti-suit injunction was
granted to restrain an English plaintiff from pursuing proceedings against an English
defendant in the USA claiming damages under US anti-trust legislation. It was said to
be unconscionable conduct for Laker to bring this anti-trust suit: the alleged liability
of the bank arose out of banking acts done in England and which were intended to be
governed by English law. Further, the defendant had no relevant presence or business
connections with the USA.

Comity
An injunction may be granted even where England is not the natural forum, if ‘the
conduct of the foreign state is such as to deprive it of the respect normally required
by comity’† (per Lord Goff in Airbus Industrie GIE v Patel [1999] 1 AC 119, 140). There †
Comity: normal friendly and
had been an aircraft crash in India and the defendants (English claimants) brought courteous behaviour towards
proceedings in Texas against the plaintiffs, who were the plane’s manufacturers. The other sovereign states.
plaintiffs sought an injunction from the English courts restraining the defendants from
continuing with the Texas proceedings. The House of Lords held that the grant of an
injunction was inconsistent with comity. The English courts had no interest in, and no
connection with, the matter to justify interference.
page 78 University of London

Breach of legal or equitable rights

A defendant in proceedings abroad may seek an anti-suit injunction where the
proceedings involve the breach of his legal or equitable rights. For example, he has an
equitable defence to the claim, such as estoppel.† †
You should re-read
Chapter 5 ‘The EU regime’,
An example of this is where there is an arbitration clause or a clause conferring
to examine this problem
exclusive jurisdiction on the English courts and despite this there is an attempt to sue
in the context of the
abroad. It is said that in such circumstances an injunction should be granted unless
European Union.
there are ‘special countervailing factors’ (per Steyn LJ in Continental Bank NA v Aeakos
Compania Naviera SA [1994] 1 WLR 588, 598). An injunction may be refused, even though
there is an exclusive jurisdiction clause in favour of the English courts, where, in a case
involving many parties, foreign proceedings provide the best means of submitting the
whole dispute to a single tribunal. See Donohue v Armco Inc [2002] 1 All ER 749.

Self-assessment questions
1. What does an anti-suit injunction restrain? What happens if it is broken? Does
it have the same implications as the purported use of such an injunction has
where the foreign court is in the European Union?

2. Why should the requirement emphasise ‘vexation or oppression’? Would it not

be enough if it could be shown that there was another clearly more appropriate
forum for the litigation?

3. Is the restraint of foreign proceedings a jurisdiction that the English courts

should exercise at all?

Activities 6.1–6.4
6.1 When will an English court restrain foreign proceedings?

6.2 Define ‘vexatious or oppressive’.

6.3 What is meant by ‘comity’?

6.4 What is ‘forum-shopping’?

Summary
This chapter looks at the English courts’ jurisdiction to restrain the pursuit of foreign
legal proceedings by issuing an anti-suit injunction. The grounds for restraint differ
from those for staying an English action on forum non conveniens grounds.

Reminder of learning outcomes

By this stage you should be able to:
u explain and give examples of anti-suit injunctions
u state the general basis on which anti-suit injunctions may be granted.

Sample examination questions

Question 1 Discuss critically the doctrine of forum non conveniens.
Question 2 In what circumstances can a defendant escape from a jurisdiction
which he now thinks is unlikely to do him justice?
Conflict of laws  6  Stays and restraint of proceedings page 79

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain the concept of forum non conveniens

and the two-stage inquiry that is involved   

I can explain the significance of a foreign jurisdiction

clause and the effect of an arbitration agreement   

I can explain and give examples of anti-suit injunctions

  
I can state the general basis on which anti-suit
injunctions may be granted.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

6.1 Stays of English proceedings  

6.2 Foreign jurisdiction clauses  

6.3 Restraint of foreign proceedings  

page 80 University of London

Notes
7 Foreign judgments

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

7.1 The status of foreign judgments . . . . . . . . . . . . . . . . . . . . . 83

7.2 Foreign judgments: recognition and enforcement at common law . . . . 83

7.3 The nine available defences . . . . . . . . . . . . . . . . . . . . . . . 86

7.4 Recognition and enforcement of judgments – the EU regime . . . . . . . 89

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

page 82 University of London

Introduction
This chapter examines the conditions for enforcement of a foreign judgment and the
defences which may be raised where there is an attempt to enforce such a judgment.
At the end of the chapter the question of when a foreign judgment may be recognised
is considered. By the end of this chapter you should understand the conditions and
the defences. Remember we are talking about the enforcement of a judgment of a
court outside the European Union, such as a court in New York or Tokyo or Moscow.

The objective of the relevant EU legislation is the free movement of judgments

between the Member States. The harmonisation of jurisdiction rules (see Chapter 5) is
thus a means to an end. Provided the court in the other Member State had jurisdiction,
recognition and enforcement is straightforward. By the end of this chapter you
should understand how recognition and enforcement are effected in this regime
and you should know in particular what defences are available. You should also be
able to compare the Brussels regime with the traditional one based on common law
principles, in particular understanding the ways in which defences operate in the
two regimes. Thus, for example, it is important for you to understand the different
approaches to fraud, natural justice and public policy in the two regimes.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u state the conditions on which an English court will enforce a foreign judgment at
common law
u compare the attitude of English courts to subsidiary companies with that of US
courts
u explain how English courts treat mistakes made in foreign judgments
u list the defences against enforcement of a foreign judgment
u explain what is meant by ‘fraud’ in this context
u state the conditions on which foreign judgments will be recognised and enforced
by English courts
u state the grounds on which an English court may refuse to do so
u explain the principal differences between recognition and enforcement of
judgments under (a) common law and (b) the EU regime.
Conflict of laws  7  Foreign judgments page 83

7.1 The status of foreign judgments

Core text
¢ Clarkson and Hill, Chapter 3 ‘Foreign judgments’, Section I ‘Introduction’.

Foreign judgments have no direct operation in England. Nevertheless, they may be

recognised or enforced in England. English courts have recognised and enforced
foreign judgments since the 17th century. It was at one time supposed that the basis
of enforcement was to be found in the doctrine of comity. Later this theory was
superseded by what is called the doctrine of obligation (see Schibsby v Westenholz
(1870) LR 6 QB 155). It followed that provided the foreign court had jurisdiction to give
judgment (according to English conflict of laws rules), the judgment is conclusive in
England, unless it is impeachable for reasons of fraud, public policy, etc., and it is not
merely prima facie evidence of the defendant’s liability, as once had been assumed to
be the case. The obligation doctrine has been restated in the modern case of Adams
v Cape Industries plc [1990] Ch 433. The CA accepted the obligation doctrine, but also
expressed the view that the same notion of comity lay behind the recognition of
judgments: ‘the society of nations will work better if some foreign judgments are
taken to create rights which supersede the underlying cause of action, and which may
be directly enforced in countries where the defendant or his assets are to be found’ (at
p.552).

When we studied jurisdiction we saw there were parallel systems, one based on
common law principles (the so-called traditional rules), and the other now found in
the EU regime. Questions relating to the recognition and enforcement of judgments
similarly have to be separated into recognition and enforcement at common law, and
recognition and enforcement under the ‘Brussels regime’.† †
There are a number of
other statutory enforcement
Activities 7.1 and 7.2 regimes, in particular under
7.1 What is the status of a judgment of a Brazilian court in England? the Administration of
Justice Act 1920 and Foreign
7.2 On what basis does an English court recognise a foreign judgment? Judgments (Reciprocal
Enforcement) Act 1933
(Clarkson and Hill, Chapter 3
7.2 Foreign judgments: recognition and enforcement at ‘Foreign judgments’, Section
common law III ‘Statutory regimes based
on the common law’ provide
a summary). These statutory
Core text
provisions are relatively
¢ Clarkson and Hill, Chapter 3 ‘Foreign judgments’, Section II ‘Recognition and
unimportant – at least for
enforcement at common law’. students – and are never
examined.
7.2.1 Conditions for enforcement
For a judgment to be entitled to enforcement at common law the following conditions
must be satisfied:

u the foreign court must have been a court of competent jurisdiction

u its judgment must be final and conclusive

u the judgment must be for a fixed sum of money.

If these criteria are satisfied, the foreign judgment is prima facie entitled to
enforcement. And it will be enforced unless the judgment debtor† can establish a †
Judgment debtor: person
defence which negatives the effect of the judgment in England. against whom a court
judgment has been made,
The court will be one of competent jurisdiction where it has exercised jurisdiction on
and who is therefore now
one of the bases of jurisdiction recognised as acceptable according to English rules of
obliged to pay money that he
private international law. The question is not whether the court in Moscow believes it or she owes.
has jurisdiction, but whether the English court, applying its conflict of laws rules, says
it has jurisdiction.
page 84 University of London
The foreign court has jurisdiction over an individual defendant if he or she is resident
within the foreign country (Emanuel v Symon [1908] 1 KB 302) or present within the
foreign country (Carrick v Hancock (1895) 12 TLR 59). It may be said that casual presence
is hardly a satisfactory basis of jurisdiction, but, of course, English courts exercise
jurisdiction over defendants on this basis.

Companies and their subsidiaries

A company cannot be resident or present as such, though it can carry on business
abroad. This can amount to residence or presence if (i) it has a fixed place of business
from which it has carried on its own business for more than a minimal time and (ii)
the business is transacted from that fixed place of business (Adams v Cape Industries plc
[1990] Ch 433, 530–531). This is easily established where there is a branch office: it is more
difficult where the business is conducted by a representative, an agent or an employee.

In the Adams case, the corporation carried on business by means of a subsidiary

company. The facts were that D, an English company which mined asbestos, and E, its
worldwide marketing subsidiary, carried on business in the USA through F, companies
incorporated in the US state of Illinois. Asbestos mined by D was sold for use in an
asbestos factory in Texas. A (206 plaintiffs) was injured working at the factory. A sued
for damages in the Federal Court in Tyler, Texas. D took no part in the proceedings,
though they had done in previous Tyler actions involving different plaintiffs, and a
default judgment was awarded against them by the US Court.

Could the default judgment be enforced in England? The CA held that it could not. It
held that D was not present in Illinois since F, D’s representatives, were carrying on
their own business and not that of D.

But were not the English company and its American subsidiary a single economic unit?
This ‘radical’ idea has found favour in the USA where the emphasis is on the economic
realities of the situation. But it did not appeal to the English courts which preferred
the conventional conceptual analysis – the Salomon principle – that the parent and the
subsidiary are separate legal entities. Of course, this means that an English company
can set up business abroad in such a way that it is not present or resident there.
Judgments against it will then not be enforceable in England. The same analysis will
apply if it carries on business abroad through associated companies.

The trial was in Texas. Suppose D had been resident or present in Illinois? The CA
thought this might have been sufficient because the trial was in a federal court. But
a federal court judge sitting in Texas has to apply Texas rules on jurisdiction, and a
federal judgment is a foreign judgment when it comes to enforcement within the USA.

Submission to jurisdiction by voluntary appearance

If a person submits to the jurisdiction of a foreign court, he cannot afterwards say that the
court did not have jurisdiction over him. Submission may be founded in agreements to
submit that are less than explicit – for example by a contract which confers jurisdiction
as regards disputes to a foreign court. This was the case in Copin v Adamson [1874] LR 9
Ex Ch 345, where, by taking shares in a French company whose articles of association
provided that disputes arising during liquidation should be submitted to a French court,
a domiciled Englishman had agreed to submit to the French court’s jurisdiction and its
judgment could be enforced against him in England. There are different views on whether
an agreement to submit can be implied: for example Scott J obiter in Adams v Cape
Industries plc seemed to accept that an implied agreement to submit might be sufficient.

The effect of appearances to protest against jurisdiction

What of an appearance to protest against jurisdiction? Is this a submission? The Civil
Jurisdiction and Judgments Act 1982 s.33(1) provides that:

… the person against whom the judgment was given shall not be regarded as having
submitted to the jurisdiction of the court by reason only of the fact that he appeared
(conditionally or otherwise) in the proceedings for all or any one or more of the following
purposes, namely:
Conflict of laws  7  Foreign judgments page 85
(a) to contest the jurisdiction of the court;

(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in
question should be submitted to arbitration or to the determination of the courts of
another country;

(c) to protect, or obtain the release of, property seized or threatened with seizure in the
proceedings.

Other tests of jurisdiction

Nothing else founds jurisdiction. So the following do not found jurisdiction:

u political nationality

u domicile

u locality of cause of action (e.g. contract broken or tort committed in the country)

u choice of governing law (e.g. no jurisdiction in Japan merely because Japanese law
is the applicable law)

u possession of immovable property in the jurisdiction

u foreign judgment based on service out of jurisdiction.

Other suggestions have been made. For example, that the test should be ‘a real and
substantial connection with the action’: this was adopted by the Canadian Supreme
Court in Morguard Investments Ltd v De Savoye [1991] 76 DLR (4th) 256. Another
suggestion is that we should accord recognition but not enforcement where the
foreign court is the natural forum (see Briggs [1992] 109 LQR 549).

‘Final and conclusive’

Secondly, the foreign judgment must be final (i.e. it must be res judicata by the law
of the country where it was given). A provisional judgment is not res judicata. For
example, see Nouvion v Freeman [1889] 15 App Cas 1: a Spanish judgment, which could
be abrogated by the adjudicating court, was not res judicata. See also Blohn v Desser
[1962] 2 QB 116, an Austrian judgment against a firm rather than an individual. To have
rendered her personally liable a separate action would have had to be brought against
her individually and she would have been able to raise various defences. Held: that
even if the judgment could be regarded as having been given against her personally, it
was not final and conclusive.

The requirement of finality means that the judgment must be final in the particular
court in which it was given. It does not mean that there must be no right of appeal. An
action can be brought in England even if an appeal is pending in the foreign court.

Fixed sum
The judgment must be for a fixed sum. There is no question of enforcing a foreign
decree of specific performance or for specific delivery or restitution of chattels. This
is contested by the Supreme Court of Canada: see Pro Swing v Elta Golf [2007] 273 DLR
(4th) 663 where it was said that the door should be opened to modern equitable
remedies, such as injunctions.

Provided the judgment meets these tests, an English court will enforce it, unless it
can be impeached by the judgment-debtor on one of the grounds to be discussed. It
is irrelevant that the judgment is wrong: the English court does not sit as a Court of
Appeal against a judgment pronounced by a foreign court which was competent to
exercise jurisdiction over the parties.

Mistakes
But suppose it got the English law wrong? This was tested in Godard v Gray [1870]
LR 6 QB 139. A French court took a mistaken view of English law and thus quantified
damages wrongly. The judgment-debtor pleaded this mistaken view of English law in
defence. The plea failed. The court held that there could be no difference between a
mistake as to English law and any other mistake.
page 86 University of London
Although this was once doubted (see Lindley LJ in Pemberton v Hughes [1899] 1 Ch 781),
it is now clear that if a foreign court makes a mistake as to its own jurisdiction, so that
it hears a case when it had no jurisdiction to do so, an English court will not enforce
its judgment (see Papadopoulos v Papadopoulos [1930] P 55; Adams v Adams [1971] P
188). Any other conclusion would be inconsistent with the principle that we do not
question a foreign court’s jurisdiction.

If the foreign court has erred in its own rules of procedure, an English court will still
enforce its judgment. So in Pemberton v Hughes, where in divorce proceedings a wife
had received nine days’ notice of the proceedings instead of the 10 prescribed by
Florida law, the Court of Appeal held that the judgment was binding in England.

Defences which were available before the foreign court should have been raised there
and accordingly cannot be raised in England. Thus, in Israel Discount Bank of New York v
Hadjipateras [1984] 1 WLR 137, the defendant raised the issue that he had only entered
into a guarantee under the undue influence of his father for the first time when
enforcement of a New York judgment against him was sought in England. He could
have raised it during the New York proceedings. Held: since it was available to him
in New York, he could not now raise it in England. But suppose the defence of undue
influence had not been available under New York law? Or what if the defence had been
available, but the factual existence of undue influence had only emerged after the
New York proceedings? We await answers to these questions.

Reminder of learning outcomes

By this stage you should be able to:
u state the conditions on which an English court will enforce a foreign judgment at
common law
u compare the attitude of English courts to subsidiary companies with that of US
courts
u explain how English courts treat mistakes made in foreign judgments.

7.3 The nine available defences

We must now examine the defences that are available to the defendant. There are
nine.

1. Judgment obtained by fraud

The first is that the foreign judgment was obtained by fraud. Fraud may take one of a
number of forms. The judge may have taken a bribe. The defendant may have been
deprived of the opportunity to take part in the foreign proceedings because of a trick
(e.g. saying you were going to arbitration and going to court behind the defendant’s
back as in Ochsenbein v Papelier [1873] 8 Ch App 695) or because of a threat of violence
(Jet Holdings Inc v Patel [1990] 1QB 335).

But what if the fraud was raised in the court abroad? It is clear that in normal
circumstances fraud can be raised as a defence even if it has been raised and dismissed
abroad. This was stated in Abouloff v Oppenheimer (1882) 10 QBD 295 (see also Vadala v
Lawes [1890] 25 QBD 310) and restated relatively recently in Jet Holdings Inc v Patel. The
plaintiffs brought an action in California to recover money allegedly misappropriated
by the defendant. The defendant appeared and claimed that he had suffered and been
threatened with violence by the president of the plaintiff company. The defendant
failed to attend a medical examination, and a default judgment was entered. The
Court of Appeal held that this could not be enforced in England. It took the view that
the plaintiffs had implicitly (even expressly) asserted to the Californian court that
the defendant’s account of violence was untrue. If it was true, this (and the actual
incidents of violence relied on) could amount to fraud. See also Owens Bank v Bracco
[1992] 2 AC 443.

Can the Abouloff rule (as it is called) be avoided? There are two ways of doing this. The
first is by distinguishing it. An example is House of Spring Gardens Ltd v Waite [1991] 1 QB
Conflict of laws  7  Foreign judgments page 87
241. It was alleged that an Irish judgment had been obtained by fraud but there had
been a second case in Ireland which had determined that there had not been fraud.
It was held that this second judgment created an estoppel: the first could not thus be
questioned.

The second way of avoiding the Abouloff rule is that the court has an inherent power to
prevent misuse of its process so that:

Where allegations of fraud have been made and determined abroad, summary judgment
or striking out in subsequent proceedings are appropriate remedies in the absence of
plausible evidence disclosing at least a prima facie case of fraud (see Owens Bank Ltd v
Etoile Commerciale SA [1995] 1 WLR 44).

If the fraud was not raised abroad, it can be raised in England notwithstanding that the
decision not to raise it in the foreign proceedings was deliberate. This means in effect
that you can reserve the defence of fraud, only raising it in enforcement proceedings
if judgment goes against you (see Syal v Hayward [1948] 2 KB 443). And remember that
a failure to raise undue influence abroad was not treated in this way in Israel Discount
Bank of New York v Hadjipateras [1984] 1 WLR 137.

2. Public policy
The second is where the foreign judgment is contrary to English public policy.
Examples are undue influence, duress and coercion (see Israel Discount Bank of
New York v Hadjipateras [1984] 1 WLR 137). See also Re Macartney [1921] 1 Ch 522 (a
Maltese judgment awarding the mother on behalf of an illegitimate child perpetual
maintenance against the estate of the deceased father contrary to public policy
since it was not limited to minority). And Vervaeke v Smith [1983] 1 AC 145: a foreign
judgment will not be recognised if it is inconsistent with a previous decision of a
competent English court in proceedings between the same parties. It has been held
that the enforcement of a judgment for exemplary or punitive damages is not contrary
to public policy (SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] QB
279): interestingly, the German Federal Supreme Court has refused such a Californian
judgment recognition on public policy grounds.

This must now be seen in the light of human rights law. In Al-Bassam v Al-Bassam [2004]
EWCA Civ 857, the CA said the first instance judge was right to voice concern that the
judgment of a foreign court given in proceedings which, in the eyes of English law,
had failed to meet the standards of a fair trial, would not be recognised in England. An
English court ‘will have regard to its own obligations to act in a manner which is not
inconsistent with the Convention right (in Article 6 of the ECHR) to a fair trial’.

3. A breach of Article 6 of the ECHR

There is a separate defence, the source of which is Article 6 of the ECHR. In Drozd and
Janousek v France and Spain [1992] 14 EHRR 745 it was said that an ECHR Contracting
state may incur responsibility if it assists in the enforcement of a foreign judgment
obtained in flagrant breach of Article 6. In Pellegrini v Italy [2001] 35 EHRR 44 it was said
the breach did not have to be ‘flagrant’. In Govt of the USA v Montgomery (No.2) [2004]
3 WLR 2241, the House of Lords accepted that Article 6 can have indirect effect in cases
of enforcement of foreign judgments. The dictum in Drozd was accepted, so that there
must be a flagrant breach of Article 6. The Lords refused to accept the wider principle
in Pellegrini. See Fawcett (2007) 56 ICLQ 1.

4. Revenue, penal or other public laws

The fourth ground relates to foreign revenue, penal or other public laws (see also
Chapter 6). English courts will not enforce foreign revenue, penal or other public laws
either directly or through the recognition of a foreign judgment. See USA v Inkley [1989]
QB 255 (enforcement refused of a bail appearance bond). But an order by a criminal
court that a defendant compensate his victim is enforceable (Raulin v Fischer [1911] 2
KB 93). So, a civil judgment, combined with a criminal judgment may be actionable in
England, as creating a separate and independent course of action.
page 88 University of London

5. Natural justice
The fifth ground is that a foreign judgment contrary to natural justice will not be
enforced. It is not clear what ‘natural justice’ means. In Jacobson v Frachon [1927] 138 L
T 386, Atkin LJ it was said to involve ‘the court being a court of competent jurisdiction,
having given notice to the litigant that they are about to proceed to determine the
rights between him and the other litigant… and notice (to) afford… an opportunity of
substantially presenting his case before the court’. So two elements of natural justice
are due notice and a proper opportunity to be heard. In addition, in Adams v Cape
Industries plc [1990] Ch 433 (see above), it was held it could extend to a lack of judicial
assessment of damages (damages had been fixed on an average basis, rather than an
individual entitlement according to evidence).

6. Multiple damages
The sixth ground is statutory. The Protection of Trading Interests Act 1980 provides
(s.5(2)) that a court in the UK cannot enforce a judgment for multiple damages. This
targets US anti-trust laws. The prohibition applies to all the judgment, not just its
non-compensatory part (see Lewis v Eliades [2004] 1 WLR 692). It has been extended to
similar Australian judgments.

But where a foreign court gives a composite judgment with both a multiplied award
and ordinary compensatory damages, it is possible to separate the different parts, and
enforce the latter, but not the former. An illustration is the case of Lewis v Eliades (a US
judgment for $8 million – $1.1 for racketeering – a multiple damages award – and $6.8
million for breach of fiduciary duty and fraud). The Court of Appeal enforced the latter
part of the judgment.

7. Matter previously determined by an English court

The seventh ground – which overlaps with that of public policy – is that a foreign
judgment will not be recognised if the matter has previously been determined by
an English court. Thus, in Vervaeke v Smith [1983] 1 AC 145 the English courts refused
recognition to a Belgian judgment annulling a marriage in London involving a Belgian
prostitute, who was domiciled in Belgium but plied her trade in Paddington (West
London), because an English court had already determined it was a valid marriage. The
difference hinged on English law’s refusal to accept the notion of a ‘sham marriage’
(one entered into in this case to avoid deportation) and Belgian law which said that
such a marriage was not a marriage at all.

8. Matter previously determined by another foreign court

The eighth ground is where a foreign judgment is given on a matter previously
determined by a court in another foreign state. Thus, if there are two conflicting
foreign judgments, both of which satisfy the conditions for recognition or
enforcement, the earlier judgment will prevail, unless the circumstances are such
that the party wishing to rely on the earlier judgment is estopped from doing so (see
Showlag v Mansour [1995] 1 AC 431).

9. Foreign judgment in breach of arbitration or jurisdiction clause

The ninth ground is where a foreign judgment has been given in breach of an
arbitration or jurisdiction clause (s.32 of the Civil Jurisdiction and Judgments Act 1982).
However, a jurisdiction or arbitration clause cannot provide a defence to recognition
or enforcement if it was illegal, void, unenforceable or incapable of being performed
(s.32 (2)). An illustration is Tracomin SA v Sudan Oil Seeds [1983] 1 All ER 404. The contract
referred any dispute to arbitration in England. Nevertheless, P sued D in Switzerland.
The Swiss court concluded the arbitration clause was of no effect and ordered D to pay
damages. The CA refused to enforce the judgment. English law was the proper law and
under this the arbitration clause was valid. D was therefore entitled to rely on it as a
defence to the Swiss judgment.
Conflict of laws  7  Foreign judgments page 89

Activities 7.3 and 7.4

7.3 When will an English court regard a foreign court as competent to try an
action?

7.4 What is the Abouloff defence?

Self-assessment questions
1. Explain the scope of the ‘natural justice’ defence. Does it extend too far?

2. Define ‘fraud’ for the purposes of raising it as a defence to the enforcement of a

foreign judgment. Give examples of what constitutes fraud, and what does not.

3. We will not enforce a judgment for multiple damages. Why not? Why then will
we enforce a judgment awarding punitive damages?

4. In common law, can an English court enforce a foreign judgment for:

i. restitution

ii. exemplary damages

iii. payment of unpaid taxes

iv. a fine arising from a criminal offence

v. a personal debt

vi. compensation for criminal injury

vii. a judgment given in breach of the ECHR?

Reminder of learning outcomes

By this stage you should be able to:
u list the defences against enforcement of a foreign judgment
u explain what is meant by ‘fraud’ in this context.

7.4 Recognition and enforcement of judgments – the EU regime

Core text
¢ Clarkson and Hill, Chapter 3 ‘Foreign judgments’, Section IV ‘Recognition and
enforcement under the Brussels I Regulation’.

Essential reading
¢ Hartley, Chapter 14 ‘EU law’ (available in Cambridge Core via the Online Library).

7.4.1 The basic rule for recognition of foreign judgments

The basic rule is that a judgment given by a court in a State party to the Brussels
Regulation (recast) (or the Lugano Convention, or in the case of Denmark the Brussels
Convention) which falls within the scope of the Regulation (or the Conventions) has,
on registration in the appropriate court in the United Kingdom, the same force and
effect as a judgment of the court in which it is registered, and proceedings for or with
respect to its enforcement may be taken, as if the judgment had originally been given
by the registering UK court.

Note that:

u The judgment must have been given by a court of a Member State (the regime
applies only to international recognition, and not, therefore, for example to the
recognition and enforcement of a Scottish judgment in England).
page 90 University of London
u The judgment must fall within the scope of the Brussels/Regulation regime, so it
must be a ‘civil and commercial matter’.

u It includes judgments given by a Member State court exercising exorbitant

jurisdiction, for example a French court giving judgment against a New Yorker,
which it can do under the Civil Code if the claimant is a French national, even
though the New Yorker is not domiciled in France. Or where a German court
exercises jurisdiction over a Japanese person because he has assets in Germany. In
a similar fashion, an Italian court would recognise and enforce a judgment of an
English court against an Australian who was only fleetingly present in England.

If a judgment falls within the scope of the Regulation, Article 36 of the Brussels
Regulation (recast) provides that it ‘shall be recognised in the other Member States
without any special procedure being required’.

There is no requirement that the foreign judgment should be final and conclusive,
or for a fixed sum of money. A decree of specific performance or an injunction is
enforceable. It is also provided that a judgment which orders a periodic payment ‘by
way of a penalty’ is enforceable, though it is likely that where payment accrues to the
state rather than to an individual that it will concern public law questions rather than
‘civil and commercial matters’, and so will fall outside the Brussels regime altogether.

7.4.2 Limits to recognition and enforcement

The jurisdiction of the foreign court may only be investigated by the English court if
the case relates to insurance, consumer contracts, or exclusive jurisdiction. Even in
these circumstances the English court is bound by findings of fact on which the foreign
court based its judgment. It is no objection to enforcement, therefore, that the foreign
court took jurisdiction wrongly. If this is the objection, it should have been taken at the
outset of the proceedings in the foreign court. There are, however, limited grounds for
refusal to recognise or enforce.

1. Judgment manifestly contrary to public policy

The first ground is that the foreign judgment is manifestly contrary to public policy
(Article 45(1)(a)). The word ‘manifestly’ was not in the Brussels Convention. It first
appeared in the Brussels Regulation and has been carried forward to the Brussels
Regulation (recast). It suggests a narrower recourse to public policy than was the case
previously. Under the Convention, it was held (see Krombach v Bamberski [2001] All
ER (EC) 584) that where recognition of the judgment would infringe a law regarded
as fundamental in the recognising state, such as where the adjudicating court had
failed to comply with the European Convention on Human Rights by refusing the party
the right to be heard, recognition could be considered contrary to public policy. It
has been held that the argument that the judgment was obtained by fraud will not
prevent recognition, if the state of origin has its own procedures for investigating
such a plea (Interdesco SA v Nullifire Ltd [1992] 1 Lloyd’s Rep 180). However, if a foreign
court has refused to give effect to a commercial arbitration agreement, this may
well be contrary to English public policy: see Philip Alexander Securities & Futures Ltd v
Bamberger [1997] JL Pr.73 and s.32 of The Civil Jurisdiction and Judgments Act 1982.

A useful example of an English court using public policy is Maronier v Larmer [2002]
3 WLR 1060: the judgment of a Dutch court had been given 12 years after the initial
proceedings had apparently been abandoned. The defendant could not rely on
Article 34(2) of the Brussels Regulation (now Article 45(1)(b) of the Brussels Regulation
(recast)), because he had notice of the original proceedings but he had not been
informed of their revival. To uphold the judgment was said to be contrary to public
policy (the English court accepted that this had to be used sparingly), and also to
human rights.
Conflict of laws  7  Foreign judgments page 91

2. Natural justice
The second ground hinges on natural justice. Article 45(1)(b) of the Brussels Regulation
(recast) provides that a judgment shall not be recognised ‘where it was given in
default of appearance, if the defendant was not served with the document which
instituted the proceedings or with an equivalent document in sufficient time and in
such a way as to enable him to arrange for his defence, unless the defendant failed to
commence proceedings to challenge the judgment when it was possible for him to
do so’. A defendant may rely on Article 45(1)(b) even though the issues at stake have
already been considered by the original court – which, presumably, has concluded
that the defendant was served in sufficient time. Note the defence only applies if the
judgment was given ‘in default of appearance’. Any ‘appearance’ seems to satisfy this,
even where it is only to contest the court’s jurisdiction or ask for a postponement of
the proceedings. Whether a defendant can resist recognition or enforcement under
Article 45(1)(b) is primarily a question of fact. A mere formal irregularity in the service
procedure will not debar recognition or enforcement if it has not prevented the
defendant from arranging his defence. Further, it is for the court in which recognition
is sought to decide whether service was in sufficient time and effected in an
appropriate way.

3. Irreconcilability
The third ground (Article 45(1)(c)) is that the judgment is irreconcilable with
a judgment given in a dispute between the same parties in the state in which
recognition is sought. For example, a German judgment ordering a husband to pay
maintenance to his wife was held to be irreconcilable with a Dutch decree dissolving
the marriage (Hoffmann v Krieg [1988] ECR 645).

The fourth ground deals with irreconcilability with a prior foreign judgment. If a
judgment from a Member State (or non-Member State) was given in proceedings
between the same parties and involving the same cause of action, and was the first
to be handed down, and is irreconcilable with a later Member State judgment, Article
45(1)(c) provides that the later Member State judgment will not be recognised.

These are the only grounds for non-recognition. Indeed, Article 45(1)(c) explicitly
provides that public policy may not be invoked to launch a collateral attack on the
jurisdiction of the adjudicating court.

A judgment obtained in Scotland or Northern Ireland can be registered and enforced

in England. No jurisdictional requirements need to be satisfied. Enforcement is not
confined to money judgments. The defences of fraud, natural justice and public policy
do not apply to judgments given in other parts of the UK.

Self-assessment questions
1. When can a French judgment be refused recognition in England? Explain why.

2. Explain what scope there is for public policy in challenging the judgment of an
Italian court.

3. Write out a list of the differences you can find between the common law regime
and the Brussels regime when it comes to the enforcement of judgments.

4. Explain why it is easier to enforce a Portuguese judgment in England than an

Australian one.

5. What defences are not available? Are there any you think should be available?
page 92 University of London

Summary
The Brussels Regime is designed to secure the mobility of judgments between Member
States. Thus a judgment in one state is readily enforceable in another. There are
limited grounds upon which one Member State may refuse to enforce the judgment of
another. They are that the judgment is manifestly contrary to public policy, is in breach
of natural law, as defined, or is incompatible with another judgment.

Reminder of learning outcomes

By this stage you should be able to:
u state the conditions on which foreign judgments will be recognised and enforced
by English courts
u state the grounds on which an English court may refuse to do so
u explain the principal differences between recognition and enforcement of
judgments under (a) common law and (b) the EU regime.

Sample examination question

In what circumstances is a judgment from a court in Los Angeles impeachable in an
English court?

Advice on answering the question

Examination questions on this subject tend to be essay questions. They test knowledge
and understanding of defences in particular and expect a detailed knowledge of these
(particularly the ‘fraud’ defence’).
Conflict of laws  7  Foreign judgments page 93

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can state the conditions on which an English court

will enforce a foreign judgment at common law   

I can compare the attitude of English courts to

subsidiary companies with that of US courts   

I can explain how English courts treat mistakes made

in foreign judgments   

I can list the defences against enforcement of a

foreign judgment   

I can explain what is meant by ‘fraud’ in this context

  
I can state the conditions on which foreign
judgments will be recognised and enforced by
  
English courts

I can state the grounds on which an English court

may refuse to do so   

I can explain the principal differences between

recognition and enforcement of judgments under   
(a) common law and (b) the EU regime.

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
done
revise

7.1 The status of foreign judgments  

7.2 Foreign judgments: recognition and enforcement at  

common law

7.3 The nine available defences  

7.4 Recognition and enforcement of judgments – the EU regime  

page 94 University of London

Notes
8 Contracts

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

8.1 The Rome I Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 97

8.2 Choice of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

8.3 In the absence of express choice . . . . . . . . . . . . . . . . . . . . 100

8.4 Mandatory rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

8.5 Validity of contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

8.6 Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

8.7 Scope of the applicable law . . . . . . . . . . . . . . . . . . . . . . . 107

8.8 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

page 96 University of London

Introduction
In this chapter we will examine the choice of law process in contract. Until 1 April 1991
the rules were a matter of common law. Since that date and until 16 December 2009,
the law was substantially governed by the Rome Convention, enacted by the Contracts
(Applicable Law) Act 1990 which harmonised the choice of law rules for contract
throughout the Member States of the European Union. From 17 December 2009 the
rules applicable to choice of law in contract are incorporated in Regulation (EC) No
53/2008 of the European Parliament and the Council (commonly known as the Rome I
Regulation), which has completely replaced the Rome Convention. It should be noted,
however, that as disputes in relation to contracts concluded before the date the
Regulation came into effect will still be governed by the Rome Convention, the latter
will still be relevant for the foreseeable future.

It should be noted that, whereas the Regulation departs from the Convention in
certain respects, the policy considerations of the two instruments are very similar:

u under Article 2, any law specified by Rome I shall be applied whether or not it is the
law of a Member State

u the parties are free to choose the applicable law of the contract (Article 3)

u general choice of law rules operate when the parties have failed to choose an
applicable law (Article 4)

u bespoke rules apply to specific contracts that are concluded with parties that are
considered weaker (Articles 5, 6, 7 and 9)

u under Article 19, the relevant point for the purposes of determining habitual
residence is the time of the conclusion of the contract.

You should be able to find the applicable law of a contract. Having found it we will
see that it governs most contractual questions that can arise – but not all. Later
in this chapter we will take the questions that arise in contract and see how each
is answered. By the end of this chapter you should understand material validity,
formal validity, capacity and incapacity, the scope of the applicable law (including
performance) and illegality. We will consider each of these subjects in turn.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the choice of law process in contract
u explain the concepts of ‘characteristic performance’ and ‘mandatory rules’
u explain the conditions that apply to choice of applicable law by parties to a
contract
u state what rules apply in the absence of such a choice
u solve problems which require you to work out the applicable law of the contract
u explain the importance of material and formal validity
u outline the common law rules that are applied in cases where capacity is in
question
u state what matters come within the scope of the applicable law
u explain what rules apply when a contract involves some illegality.

Core text
¢ Clarkson and Hill, Chapter 4 ‘Contractual obligations’.

Essential reading
¢ Garcimartín Alférez, F.J. ‘The Rome I Regulation: Much ado about nothing?’
(2008) 2 The European Legal Forum (E), 61–80 (available on the VLE).
Conflict of laws  8  Contracts page 97

8.1 The Rome I Regulation

The Rome I Regulation applies to contractual obligations in any situation involving a
choice between the laws of different countries (Article 1(1)). The Regulation does not
define ‘contractual obligations’, but it is clear that we should adopt a broad European
approach to the concept. At common law we were prepared to regard as a contract
a promise that lacked consideration (see Re Bonacina [1912] 2 Ch 394): so there is no
reason why our view of contract should now be confined to our own concept of it.

Exclusions
The Rome I Regulation excludes some matters though they involve contractual
obligations. The exclusions are:

u Questions involving status or legal capacity of natural persons subject to Article 13.

u Obligations arising out of family relationships and maintenance obligations.

u Contractual obligations relating to rights in property arising out of a matrimonial

relationship, and wills and succession.

u Obligations arising under bills of exchange, cheques and promissory notes, and
other negotiable instruments to the extent that the obligations under other
negotiable instruments arise out of their negotiable character.

u Arbitration agreements and agreements on the choice of court.

u Questions governed by company law such as the creation, legal capacity, internal
organisation or winding up of companies and the personal liability of officers and
members as such for the obligations of the company or body.

u The question of whether an agent is able to bind a principal, or an organ to bind a

company or unincorporated association, to a third party.

u The constitution of trusts and the relationship between settlers, trustees and
beneficiaries.

u Questions of evidence and procedure.

u Certain life insurance contracts.

Rome I makes it clear that a reference to the law of a country is a reference to the
domestic law of that country. Renvoi thus has no part to play (Article 20).

Determining the applicable law

The main thrust of Rome I is to provide rules to enable us to determine the applicable
law of a contract. If we ignore for a moment specialised contracts, the rules are to
be found in Articles 3 and 4 of the Regulation. Article 3 deals with express choice
(including a choice which may be implied from the terms of the contract or the
circumstances of the case). Article 4 deals with the determination of the applicable
law in the absence of choice. Each of the Articles must be examined in turn.

8.2 Choice of law

8.2.1 Freedom to choose

Article 3 bears the heading ‘Freedom of Choice’ and expresses the basic principle of
party autonomy. This principle was accepted in the common law. Thus, Lord Reid in
Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd [1970] AC 583,
603 said:

Parties are entitled to agree what is to be the proper law of their contract … There is no
doubt that they are entitled to make such an agreement, and I see no good reason why,
subject it may be to some limitations, they should not be so entitled.
page 98 University of London
See also Lord Wright in Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, 290:

Where there is an express statement by the parties of their intention to select the law of
the contract, it is difficult to see what qualifications are possible, provided the intention
expressed is bona fide and legal, and provided there is no reason for avoiding the choice on
ground of public policy.

Article 3 provides that the parties are free to choose the law to govern their
contractual relationship. So a contract may include a specific clause providing that
the contract ‘shall be governed by the law of Germany’. You will have noted that Lord
Wright – in the leading common law authority – was hunting about for a limitation
to complete freedom. He found it in the necessity for the choice to be bona fide, legal
and not contrary to public policy. This raises the obvious question as to whether
the parties have complete freedom of choice under Rome I: can they choose a law
which has no connection with either of them or the subject matter of the contract?
Suppose an English company and a Germany corporation contract about the supply
of German beer to an English supermarket chain. Could they agree that their rights
and obligations be governed by the law of Peru? The answer is ‘yes’: Rome I allows the
choice of a law which has no connection with the contract. Parties may have a good
reason for doing this (seeking a neutral law or choosing the law which governs the
financing or insurance of the contract), but they may also have none.

8.2.2 Provisions limiting the effect of choice

The Regulation does not invalidate a choice of law, but there are a number of
provisions which limit the effect of a choice of law by the parties. These will be dealt
with more fully below, but here we should be aware of them.

First, there are what are called mandatory rules, that is rules of the law which
cannot be ‘derogated from by contract’ (Article 3(3)). The rules providing controls
on exemption clauses contained in the Unfair Contract Terms Act 1977 (see s.27 (2))
would be one example. If parties to an entirely German contract (which contains
an exemption clause) choose French law to govern it, the courts of any Contracting
State which tries the case will have to apply any controls on exemption clauses in the
German equivalent of the 1977 Act. This will prevent evasions of the law, but will also
knock out some choices made for perfectly legitimate reasons.

Second, Article 9(2) provides that nothing in the Regulation shall restrict the
application of the rules of law of the forum in a situation where they are mandatory,
irrespective of the law otherwise applicable to the contract: so, for example, an
express choice of foreign law may be nullified or limited by the terms of English
legislation such as the Unfair Contracts Terms Act 1977 s.27(2).

The third limitation and the fourth relate to consumer contracts and employment
contracts. Articles 6(2) and 8(1) provide that a choice of law made by the parties does
not have the effect of depriving the consumer or employee of the protection of certain
mandatory rules: in the case of consumers, under the law of their habitual residence;
in the case of employees, under the law which would be applicable in the absence of a
choice of law.

Fifth, a choice of foreign law will not prevent the forum from disregarding it if its
application would be manifestly incompatible with the public policy of the forum
(Article 21).

Subject to these limitations the parties may choose the law to govern their contract.
The Convention states they may choose the ‘law of a country’. It is therefore generally
thought that they cannot choose the lex mercatoria (the internationally accepted
principles of trade law) or the principles of European contract law or even public
international law. But it may be said by way of riposte that if the parties are free to
choose they ought to be able to choose whatever they think is best for them.
Conflict of laws  8  Contracts page 99
They cannot make a choice which is meaningless. What is meaningless will, of course,
depend upon what a court subsequently thinks. A good illustration is the common
law case of Compagnie D’Armement Maritime SA v Cie Tunisienne de Navigation [1971]
AC 572. The Court of Appeal held that the clause ‘This contract shall be governed by
the laws of the flag of the vessel carrying the goods’ was meaningless in a contract
which contemplated that it would be performed in a number of different vessels
flying different flags. The HL by 3–2 did not agree: it held French law governed since
the flag ‘primarily’ flying was that of France. You may find the CA’s interpretation
more convincing. Another example is found in Shamil Bank of Bahrain v BeximCo
Pharmaceuticals [2004] WLR 1784 where the contract expressed that it has to be
governed by the English law ‘subject to the principles of the Glorious Sharia’a’. Since
it was not clear which principles were to be incorporated, the clause was self-
contradictory and meaningless.

Dépeçage
Parties may choose different laws to govern different parts of their contract. For
example, an index linking clause may be made subject to a law different from the
rest of the contract. This ‘pick and choose’ approach is called dépeçage. If parties do
choose in this way their choices must be logically consistent. So, for example, the
choice would fail if the parties were to make repudiation for non-performance refer
to different laws (i.e. one for the vendor, the other for the purchaser). It would then be
necessary to determine (under Article 4) the applicable law in the absence of express
choice.

The parties cannot choose a floating applicable law. This was the common law
position too. Thus, in Armar Shipping Co Ltd v Caisse Algérienne d’Assurance [1981] 1 WLR
207 the CA held that it was not right to take into account, in determining whether a
Lloyd’s average bond was governed by English law, the fact that it was subsequently
decided by the parties that general average adjustment should take place in London.
The applicable law must exist and be identifiable at the time when the contract is
made.

8.2.3 Delayed choice of law

Article 3(2) provides that

The parties may at any time agree to subject the contract to a law other than that which
previously governed it, whether as a result of an earlier choice made under this Article or
of other provisions of this Regulation.

So parties who do not make a choice initially can subsequently make one. Until
they do so their contract will be governed by the applicable law in the absence of
choice (determined under Article 4). Also parties who have made a choice can vary
it subsequently. The effect of this will be that one law will govern their rights and
obligations until the variation, and a different one afterwards. There are problems
with this, and these have been anticipated. Article 3(2) therefore also provides that
any variation shall not prejudice the formal validity of the contract (the contract might
have become formally invalid under the new law) or adversely affect the rights of third
parties.

Summary
The Rome I Regulation is committed to party autonomy, so parties are free to choose
the law to govern their contract (the applicable law). There are some limitations to
this. Even if they have not chosen the applicable law they may do so subsequently.
page 100 University of London

8.3 In the absence of express choice

There may not be an express choice of applicable law. But it may still be possible to
infer a choice under Article 3(1) if such a choice (and it is a choice) can be ‘clearly
demonstrated by the terms of the contract or the circumstances of the case’.

8.3.1 Implied choice

Examples of where a choice may be implied from the terms of a contract are:

u where the contract is in a standard form known to be governed by a particular

system of law

u where there is a choice of forum clause or an arbitration clause naming the place
of arbitration.

More doubtful would be where the parties have referred to a particular currency.
Since we are looking for parties’ intentions, it may be more difficult to infer them ‘with
reasonable certainty’ from a currency reference. There are many reasons for choosing
a particular currency (e.g. its international character or negotiability).

The most common term from which a choice of applicable law will be implied is
the choice of the courts of a particular country to determine a dispute. The maxim
qui elegit iudicem elegit ius (if you choose a judge you choose his law) is often cited.
But whether a choice of law can be inferred from an arbitration clause will depend
on the circumstances. No choice can be inferred from an arbitration clause which
does not indicate the place of arbitration. But one which clearly contemplates that
the arbitration will take place in a particular country will permit an inference that
the parties intended that the law of that country should be applied. Thus, in Egon
Oldendorff v Libera Corporation (No.2) [1996] 1 Lloyd’s Rep 380; [1996] CLC 482 it was held
that a choice of English law was to be inferred from the choice of English arbitration
for the determination of disputes arising out of a well-known English language form of
charterparty. It was a reasonable inference that German and Japanese parties, having
agreed a ‘neutral forum’, had also intended that forum to apply English law.

The inference can be drawn also from the circumstances of the case. Examples are
(a) where there is an express choice in a related transaction, and (b) where there is
a previous course of dealing under contracts containing an express choice and this
clause has been omitted in circumstances which do not indicate a deliberate change
of policy by the parties.

If there are conflicting inferences it cannot be said that a choice has been
demonstrated with reasonable certainty. It becomes necessary then to turn to the
rules (in Article 4) on applicable law in the absence of choice.

8.3.2 Article 4
Where the parties have not chosen an applicable law and one cannot be inferred,
Article 4 of Rome I will be resorted to by the courts. Compared to its predecessor in
the Rome Convention, Article 4 of Rome I is much simpler and contains more detailed
rules in relation to the most commonly entered types of contract. Under Article 4(1)(a),
a contract for the sale of goods is governed by the law of the country where the seller
has habitual residence, and under Article 4(1)(b) a contract for the provision of services
will be governed by the law of the service provider’s habitual residence. Article 19 of
Rome I provides clarity in relation to what is considered to be habitual residence. It
defines the latter as being the place of central administration in the case of companies
and other corporate or unincorporated bodies. Where the contract is concluded
in the course of the operations of a branch, agency or any other establishment or
performance under the contract is the responsibility of a branch, agency or other
establishment, the place where that branch or agency or establishment is located
shall be the place of habitual residence. For a natural person acting in the course of a
business, the habitual residence is his or her principal place of business.

Article 4(1)(c–h) determines the applicable law for other types of contract.
Conflict of laws  8  Contracts page 101
In those circumstances where none of the rules of Article 4(1) apply to the contract, either
because the type of contract is not covered or the particular contract falls within more
than one limb of Article 4(1), Article 4(2) comes into play for the purposes of choice of
law. It stipulates that the contract will be governed by the law of the country where the
party required to effect the characteristic performance (the seller) has habitual residence.
‘Characteristic performance’ is not defined in Rome I (or the Rome Convention in that
respect). It is said to link the contract to the social and economic environment of which
it will form a part. It is not difficult to identify the characteristic performance if only
one party has to perform (e.g. a contract of gift). Where, as is more likely, there are two
performances (e.g. one party performs services or sell goods, the other pays for them),
it is not immediately obvious which of the performances constitutes the essence of the
contract. Giuliano and Lagarde state that the characteristic performance is usually the
performance for which payment is due. You may ask why the payment of money is not the
performance which is characteristic of the contract.

It is important to note here that Article 4(2) can only provide guidance if the
characteristic performance of the contract can be identified. If that proves impossible,
then the general escape clause of Article 4(4) will come to the rescue.

Article 4(3) provides a rule of displacement. It constitutes an exception to Articles

(1) and (2), in those exceptional circumstances where a country other than the one
indicated in the latter appears to have a closer connection to the contract. The
contract must be manifestly more closely connected to the other country. Guidance
as to the meaning of the term ‘manifestly’ is provided by Recital 20 of Rome I, which
states that the decision of whether a contract is manifestly more connected with a
country other than the one indicated should take into account, among other factors,
whether the contract has a very close relationship with another contract or contracts.

Where the applicable law cannot be determined under either Article 4(1) or (2),
namely when it cannot be determined where the person effecting characteristic
performance has habitual residence, Article 4(4) provides that the contract will
be governed by the law of the country with which it is most closely connected. It
should be emphasised that this rule will apply only in those circumstances where the
application of Article 4, in its strict sense, would produce undesirable results. English
courts have, in the past, been willing to resort to this general escape clause and
displace the presumptions of the Rome Convention.

In Definitely Maybe v Marek Lieberberg Konzertagentur GmbH [2001] 2 All ER (Comm) 1,

DM (a company based in England) contracted with ML (a German concert promoter) to
provide the services of the pop group, Oasis, at two festivals in Germany. Noel Gallagher,
Oasis’s guitarist, did not play in Germany. ML argued that Oasis without NG was not the
group contracted for, and refused to pay the full price for Oasis’s services. DM wished to
sue ML in England. ML was domiciled in Germany. For an English court to have jurisdiction
under Article 5(1) of the Brussels Convention, the place of performance of the obligation
in question would have to have been England. The obligation in question was the duty
to pay. But the place of performance of an obligation may depend upon which system of
law governs the contract. Under German law the place of performance of an obligation
to pay is the debtor’s domicile; under English law it is the place where money is to be
received. So, whether an English court had jurisdiction depended on the law governing
the contract. There was no choice of applicable law.

The court therefore had to look to Article 4 and in particular to Article 4(2) of the
Rome Convention. The characteristic performance was for Oasis to perform concerts
in Germany. DM is located in England and so English law would be the governing law
of the contract. The court thought this a case which called for displacement of the
presumption: ‘The centre of gravity of the dispute was Germany’. The court thought
that Germany would provide the more convenient forum for deciding to what extent
Oasis without NG was worth anything and, if so, how much. This meant that DM
could not sue in England under Article 5(1) of the Brussels Convention (the Council
Regulation 44/2001) since German law said the place of performance of the obligation
to pay was where the debtor was domiciled, and this was Germany. You should read
this case: it is a particularly good illustration not just of the displacement process but
also of the interrelationship of jurisdiction and choice of law questions.
page 102 University of London
Another example illustrating displacement is Kenburn Waste Management v Bergman
[2001] All ER (D) 155. The case centred upon an agreement between a German and
an English company that the German would not communicate with the English
company’s customers. The defendant was allegedly in breach of this agreement. There
was no choice of law clause. The communication would take place from Germany to
England. The law governing as a result of the presumption would have been German
law: the characteristic performance was to be effected by the defendant. The court
held the presumption to be rebutted: the defendant’s obligations could be performed
anywhere in the world, but the effect had to take place in England, and the contract
was to protect the claimant’s business in England.

For a third example see the older case of Bank of Baroda v Vysya Bank [1994] 2 Lloyd’s
Rep 87: an Indian bank issued a letter of credit in favour of an Irish company to be
confirmed by a bank in London, and payable in London. The performance which was
characteristic of the contract was the issue of a letter of credit in London. The central
administration of the party which was to effect the performance was in India, and so
under Article 4(2) it was presumed that the contract was most closely connected with
India. The presumption was displaced in favour of English law: the contract between
the Indian bank and the confirming bank in London (which was an Indian bank with a
branch in London) was governed by English law, and it was important that all aspects
of the letter of credit transaction should be governed by the same law.

For other examples you may see Ennstone Building Products v Stanger [2002] 2 All ER
(Comm) 479 and Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All
ER 821. For a different approach to the relationship between Articles 4(2) and 4(5) by
the Dutch court take a look at Struycken [1996] LMCLQ 18 who discusses Société Nouvelle
des Papeteries de l’Aa SA v BV Machinefabrike BOA (a 1992 Dutch decision). This is also
discussed in Clarkson and Hill, p.223.

Consumer and employment contracts

There are special rules in Rome I dealing with consumer contracts, and with individual
employment contracts (see Articles 6 and 8). The aim is to provide protection to the
weaker party (the consumer and the employee). The details of these provisions are not
in the syllabus: some introduction to them is in the section on mandatory rules (which
follows).

We turn now to limitation on the applicable law (briefly discussed above). We are
principally concerned with mandatory rules. This is not a concept known to English law, at
least under this name. They are an exception to the general philosophy of contract, where
party autonomy is the key. Mandatory rules are designed either to protect a specified
group (consumers or employees) or the national economic system (rules on such matters
as monopolies, export control, exchange control). The state’s interest may be so strong
that it will uphold this protection or these laws even though the issue is, in principle,
governed by a different law as a result of the rules on applicable law in Articles 3 and 4.

Summary
Where there is no express choice of applicable law, there may nevertheless be a choice
that can be inferred from the terms of the contract or the circumstances of the case. In
default, the applicable law is that with which the contract is most closely connected.
The process for finding this is set out in Article 4 and hinges on the ‘characteristic
performance’ and ‘territorial connection’ presumptions in Article 4(2). These
presumptions may be rebutted.

8.4 Mandatory rules

Mandatory rules are those rules which ‘cannot be derogated from by agreement’
(Article 3(3)). To determine whether the rules of a particular country are mandatory,
reference must be made to the law of that country. The effect given to mandatory
rules under the Regulation is to override the normal rules on the applicable law
contained within it.
Conflict of laws  8  Contracts page 103

The concept of mandatory rules is used in various provisions in the Regulation:

u Article 3(3): the limitation on freedom of choice

u Article 6(2): consumer contracts

u Article 8(1): individual employment contracts

u Article 9(2): mandatory rules of the forum

u Article 9(3): overriding mandatory rules of a foreign country

u Article 11(5): formal validity as regards contracts for the use of immovable property.

These provisions share the same definition of a mandatory rule, but otherwise they
differ from each other:

i. on the question of which country’s mandatory rules are being referred to

ii. on the type of mandatory rules with which they are dealing, and

iii. on the effect given to a mandatory rule (under the first three provisions the effect
is to override parties’ freedom to choose the applicable law; under the latter three
it is to override all the rules on applicable law including those in the absence of
choice).

This is more fully explained by Cheshire, North and Fawcett pp.745–46.

8.4.1 Article 9(1)

According to Article 9(1):

Overriding mandatory provisions are provisions the respect for which is regarded as
crucial by a country for safeguarding its public interests, such as political social or
economic organisation, to such an extent that they are applicable to any situation falling
within their scope, irrespective of the law otherwise applicable to the contract under this
Regulation.

It should be pointed out that these provisions will apply both in circumstances when
the parties have made a choice of law or, in the absence of choice of law, when the
applicable law has to be determined under the Regulation.

Article 9(2) provides that:

Nothing in this Regulation shall restrict the application of the rules of the law of the forum
in a situation where they are mandatory irrespective of the law of the forum.

The sorts of law this Article is designed to protect are rules on cartels, competition and
restrictive practices, and consumer protection.

Article 9(3) deals with the mandatory rules of countries other than the forum. It states:

Effect may be given to the overriding mandatory provisions of the law of the country
where the obligations arising out of the contract have to be or have been performed, in
so far as those overriding mandatory provisions render the performance of the contract
unlawful. In considering whether to give effect to those provisions regard shall be had to
their nature and purpose and to the consequences of their application or non-application.

Article 9 is an improvement on the position previously adopted by the Rome

Convention in Article 7(1). It is more clearly worded and, very importantly, more
specific than its predecessor as it is limited to the rules of the country of performance
and only to those rules which render performance unlawful.

Rules with over-riding effect

The first problem is to identify rules which have an overriding effect, that is that will
apply irrespective of the otherwise applicable law. The policy is likely to be embodied
in statute. As a general rule, a statute will not say when it is to apply: in those cases it
will apply to a contract with foreign elements only if English law is the applicable law.
So, for example, in a contract of sale which is by virtue of Article 4 governed by German
page 104 University of London

law, the implied terms of the Sale of Goods Act 1979 will not apply. They are mandatory
in terms of Article 3(3), but not overriding for the purposes of Article 9(2).

Some statutes expressly state their scope. The Unfair Contract Terms Act 1977 is an
example. It is provided (by s.27(2)) that the Act applies to a contract, notwithstanding
the choice of a foreign law if such a choice was

imposed wholly or mainly for the purpose of enabling the party imposing it to evade the
operation of the Act or in the making of the contract one of the parties dealt as consumer,
and he was then habitually resident in the UK, and the essential steps necessary for the
making of the contract were taken there…

If the statute does not expressly identify the circumstances in which it applies, the
court must decide whether or not its provisions are overriding. In Boissevain v Weil
[1950] AC 327 (decided under the common law) the House of Lords interpreted the
Defence Regulation which made it an offence for a ‘British subject’ to carry out certain
currency transactions to embrace a loan contract made in Monte Carlo, whose proper
law was that of Monaco. † †
Monaco is a tiny
independent state situated
Article 21 of the Regulation provides that ‘the application of a provision of the law
on the south coast of France.
of any country specified by this Regulation may be refused only if such application
Monte Carlo is its capital.
is manifestly incompatible with the public policy (‘ordre public’) of the forum’.
As the word ‘manifestly’ indicates, Article 16 should only be used in exceptional
circumstances. Examples drawn from common law cases include an agreement to
stifle a prosecution (Kaufman v Gerson [1904] 1 KB 591), an agreement in restraint of
English trade (Rousillon v Rousillon [1880] 40 Ch D 351) and a contract which involved
trading with the enemy (Dynamit A/G v Rio Tinto Co [1918] AC 292). More recently it
was held that making contractual payments in violation of UN sanctions enacted into
Dutch law was akin to trading with the enemy (Royal Boskalis NV v Mountain [1999]
QB 674, in which one party to a contract governed by the law of Iraq intended that it
should be performed in the Netherlands in contravention of Dutch sanctions against
Iraq). At common law there were cases where English courts refused to enforce
contracts said to be against public policy because they envisaged breaking the law of a
friendly foreign state (see, for example, Foster v Driscoll [1929] 1 KB 470).

Activity 8.1
Does the Rome I Regulation apply to:
a. a pre-nuptial agreement

b. the question of whether a minor can buy goods which are not necessaries

c. a dispute between principal and agent about commission

d. a bill of lading

e. a contract between an English woman and a French insurance company to

insure her African safari trip?

Summary
The main limitations on freedom of choice are mandatory rules. The state’s interests
may be so strong that it will uphold certain protections (of consumers, or employees,
or the national economic system) regardless of what the parties say in their contract.

Reminder of learning outcomes

By this stage you should be able to:
u explain the choice of law process in contract
u explain the concepts of ‘characteristic performance’ and ‘mandatory rules’
u explain the conditions that apply to choice of applicable law by parties to a
contract
u state what rules apply in the absence of such a choice
u solve problems which require you to work out the applicable law of the contract.
Conflict of laws  8  Contracts page 105

8.5 Validity of contracts

Core text
¢ Clarkson and Hill, Chapter 4 ‘Contractual obligations’, Section VI ‘Particular
aspects of the contract’.

8.5.1 Material validity

Material validity covers such issues as:

u formation of the contract (offer and acceptance, consideration)

u the validity of consent (mistake, misrepresentation, duress).

Article 10(1) provides that:

The existence and validity of a contract, or any term of a contract, shall be determined by
the law which would govern it under this Regulation if the contract or term were valid.

In other words the law that would be applicable were there a contract governs such
questions as ‘Is there a contract?’. Since it can hardly be the applicable law until it
is ascertained that there is a contract, it is usual to refer to the ‘putative applicable
law’. An example may assist. An English company sends an offer to a Swiss company
which accepts by post. The letter of acceptance does not arrive. By English law there
is a contract (you will remember ‘the postal acceptance rule’); by Swiss law there is
no contract. To answer the question of whether there is or is not a contract, reference
must be made to what would be the applicable law were there a contract. This will
depend on the rules we studied in the previous sections. The parties are free to choose
the governing law: this means that they can choose a law under which the contract
would be valid. Cheshire, North and Fawcett (p.756) say ‘The principle has much to
commend it. Businessmen use choice of law clauses in order to avoid the problems
of ascertaining the objective governing law and their wishes should be respected
whatever the issue’. But they concede that it can lead to unfairness.

So Article 10(2) provides a safeguard in relation to consent. This states that:

Nevertheless, a party may, in order to establish that he did not consent, rely upon the law
of the country in which he has his habitual residence if it appears from the circumstances
that it would not be reasonable to determine the effect of his conduct in accordance with
the law specified in paragraph 1.

This is aimed at tackling the problem which can arise, for example where there is a
law that silence constitutes consent. Imagine that A makes an offer to B and inserts a
choice of law clause in the contract stating that the law of Utopia governs. B remains
silent. Under Utopian law silence constitutes an acceptance. Clearly, it is unfair that B
should be contractually bound. Under Article 8(2) he can claim that he did not consent
to the contract according to the law of his habitual residence. This applies, provided
it would not be reasonable to determine the effect of his silence under Utopian law.
It might, of course, be reasonable if there was a continuing business relationship
between the parties.

The equivalent of Article 10(2) of the Regulation in the Rome Convention (Article 8(2)),
was used in Egon Oldendorff v Libera Corporation [1995] 2 Lloyd’s Rep 64; [1996] CLC 482.
The court had to determine whether a contract had been concluded between a German
company and a Japanese company and, if so, whether a London arbitration agreement was
incorporated in the contract. It was held that English law should apply to these questions
and that it would be wrong for Japanese law to determine the effect of the Japanese
company’s conduct. Japanese law would only be relevant if the arbitration clause were
ignored, and to do this would be contrary to ordinary commercial expectations.

Article 10 applies also to questions of reality of consent: mistake, misrepresentation,

duress, undue influence. In Dimskal Shipping Co SA v I.T.W.F. [1992] 2 AC 152 it was held
that whether a contract was voidable on the ground of economic duress depended on
English law as the putative governing law of the contract. The ‘contract’ was between
page 106 University of London

shipowners and a trade union which had (in Sweden) ‘blacked’ the ship until the
owners agreed to pay additional wages to the crew and a contribution to the union’s
welfare fund. The ‘contract’ was expressed to be governed by English law. It was held
that the existence and effect of duress were governed by English law as the putative
governing law and not by Swedish law, as the place where the duress allegedly
occurred.

8.5.2 Formal validity

Formal validity covers every external manifestation required on the part of a person
expressing the will to be legally bound, and in the absence of which such expression of
will would not be regarded as fully effective. For example, does a contract have to be
in writing?

Article 11(1) provides a formal validity rule of alternative reference: a contract is valid
if valid by the applicable law or the law of the country where it was concluded. The
applicable law is, of course, the putative applicable law. If a contract is varied after it is
concluded, subsequent variation does not prejudice formal validity (see Article 3(2)). A
variation which formally validates a contract which is invalid at its inception is allowed
and will validate the contract from that date.

If the parties are in different countries when the contract is concluded, it will be
formally valid if valid by the applicable law (the putative applicable law) or the law of
either of these countries (Article 11(2)).

There are special rules for consumer contracts: formal validity is governed by the law
of the country in which the consumer has his habitual residence (Article 9(5)), and for
immovables, which are subjected to the mandatory requirements of form of the lex
situs (Article 9(6)).

Summary
Matters of essential validity are governed by the putative applicable law. Matters of
formal validity are governed by the applicable law or the law of the country where the
contract is concluded.

8.6 Capacity
The status or legal capacity of natural persons is, in general, excluded from the scope
of the Regulation (Article 1(2)(a)). This is subject to Article 13. Because capacity falls
outside the Regulation it is necessary to look to common law principles to decide
what law governs capacity. Article 13 will be examined after this.

The common law rule on capacity to enter into a commercial contract has never been
conclusively determined. There are three possible rules: lex domicilii, lex loci contractus
and the proper law. There are cases which contain dicta favouring the domiciliary law.
They are old and were all decided in the context of marriage and marriage settlements
(e.g. Cooper v Cooper [1888] 13 App Cas 88). The personal law hardly sits comfortably with
modern conditions of trade. There is an old authority (Male v Roberts (1790) 3 Esp 163)
supporting the lex loci contractus. This too has little to commend it: someone lacking in
capacity could merely contract where he did have capacity. A relatively modern Canadian
decision (Charron v Montreal Trust Co (1958) 15 DLR (2d) 240) has held that capacity to enter
into a separation agreement is to be determined by the law of the country with which
the contract is most substantially connected, (i.e. the proper law). In this case this was,
however, also the law of the place where the contract was made. For this reason it is weak
authority.

The proper law view has the support, albeit obiter, of Brightman J in Bodley Head v
Flegon [1972] 1 WLR 680. The issue was whether the Russian author, Solzhenitsyn, could
execute a power of attorney in favour of a Swiss lawyer. It was contended that the
contract was void, since he lacked capacity by Russian law, his lex domicilii. It was also
contended that he lacked capacity by the law of the place where the contract was
Conflict of laws  8  Contracts page 107

made. It was held that the issue was not one of capacity, but of material validity, and
was therefore governed by the applicable law, which was Swiss law. The judge went on
to hold that, even if it had been the case that Solzhenitsyn lacked capacity by Russian
law, the contract would still have been valid, because capacity is also governed by the
proper law.

The present law therefore remains in some doubt. There is support for Dicey, Morris
and Collins’ view (pp.1271–74) that capacity either by personal law or by the objective
proper law should be sufficient.

Although questions of capacity are outside the Regulation, there is the strange Article
13. This provides that:

In a contract … between persons … in the same country, a natural person who would
have capacity under the law of that country may invoke his incapacity … from the law of
another country only if the other party … was aware of this incapacity at the time of … the
contract or was not aware … as a result of negligence.

The purpose of Article 13 is to protect a party who in good faith believed himself to be
contracting with a person of full capacity and who, after the contract has been entered
into, is confronted by his incapacity. Note that Article 13 only applies:

u where the parties are in the same country

u where there is a conflict of laws.

The person claiming to be under a disability must be deemed to have full capacity by
the law of the country where the contract was concluded.

Note also that ‘it is not at all clear how the negligence test is to be applied’ (Clarkson
and Hill, p.251).

Summary
Capacity questions are largely still determined by the common law, since they fall
outside the Regulation. This has not yet been finally determined. The better view is
that the objective proper law governs, but it seems that the contract will also be valid
if there is capacity by the personal law.

8.7 Scope of the applicable law

Article 12 indicates what is the scope of the applicable law. It governs:

u interpretation

u performance

u within the limits of the parties conferred on the court by its procedural law, the
consequences of breach, including the assessment of damages in so far as it is
governed by rules of law

u the various ways of extinguishing obligations, and prescription and limitation of

actions

u the consequences of nullity of the contract.

These are examples. Article 12 is not intended to be exhaustive.

In relation to performance and the steps to be taken in the event of defective

performance ‘regard shall be had to the law of the country in which the performance
takes place’ (Article 12(2)). This gives the lex loci solutionis (the law of the place of
performance) a role, but it is not clear how much of a role. The court has a discretion
to apply it or not, thus introducing uncertainty into the law.

Consequences of breach include the liability of the party to whom the breach is
attributable, and claims to terminate the contract for breach. A Dutch court has said it
includes strikes (Buenaventura v Ocean Trade Company [1984] ECC 183). In this case the court
page 108 University of London

ordered striking crew members of a Saudi Arabian ship lying at Rotterdam to return to
work on the basis that the strike was unlawful under Philippine law, the expressly-chosen
applicable law. Other matters within the applicable law are questions of causation, and
whether the defendant can rely on a defence such as set-off to limit his liability (see
Meridien BIAO Bank GmbH v Bank of New York [1997] 1 Lloyd’s Rep 437).

The circumstances in which a contract comes to an end are also for the applicable law
to determine. So questions such as frustration, insolvency and novation are governed
by the applicable law. We used to regard limitation as a procedural matter, but the
Foreign Limitation Periods Act 1984 re-conceptualised it as a substantive matter. The
applicable law therefore determines whether a claim is barred by lapse of time.

8.8 Illegality
Article 10 subjects illegality to the normal rules of the Regulation. It provides that
the existence and validity of a contract shall be determined by the law which would
govern it under the Regulation if the contract or term were valid (Article 10(1)). Thus,
clearly, a contract which is illegal by its applicable law will not be enforced. This is
known as ‘putative applicable law’. Article 10(2) of the Regulation provides that a party,
in order to establish that he did not consent, may rely upon the law of the country in
which he has his habitual residence, if it appears from the circumstances that it would
not be reasonable to determine the effect of his conduct in accordance with the law
specified in paragraph 1. The aim of this provision is to offer protection to a party that
did not reply to an offer (which in certain countries could imply acceptance).

Activities 8.2–8.4
8.2 What is meant by ‘putative applicable law’?

8.3 By what law is capacity to enter into a commercial contract governed?

8.4 What questions relating to issues of contract may be referred to the lex loci
solutionis?

Reminder of learning outcomes

By this stage you should be able to:
u explain the importance of material and formal validity
u outline the common law rules that are applied in cases where capacity is in
question
u state what matters come within the scope of the applicable law
u explain what rules apply when a contract involves some illegality.

Self-assessment questions
1. Explain why parties are given autonomy to choose the law to govern their
contract.

2. What is the scope of this freedom? Compare the limits laid down in Vita Foods
with those found in the Rome I Regulation.

3. Explain dépeçage. What are its implications?

4. Explain ‘mandatory rules’. What is their significance?

5. Consider the following contracts. What is their applicable law if they were
concluded in 2008? Would your answer be different if they were concluded in
2015?

i. A contract between Cheapgoods plc, an English supermarket chain, and

Polska Jams, a Polish jam producer, to supply jams. Payment is to be in US
Dollars at a Polish bank in London upon delivery of the jams. Nothing is said
about the applicable law.
Conflict of laws  8  Contracts page 109

ii. A contract between a German car manufacturer and a Taiwanese ship owner
to charter ships to transport cars from Germany to West Africa. The contract
provides for arbitration in London. The contract, which was negotiated by a
Taiwanese shipbroker, provided for delivery of the ships in Taiwan and their
redelivery there. Previous contracts between these parties were expressly
governed by Taiwanese law.

6. How would an English court decide the applicable law of the following
contracts, all of which were made in 2006? Would the court reach a different
decision if the contracts were concluded in 2013?

i. A contract between a Virginian tobacco grower and a Spanish cigarette

corporation to manufacture cigarettes with high tar content for sale in the
United States and the United Arab Emirates. The contract provides that the
law of Dubai governs the contract. Sale of such cigarettes is not permitted in
the USA but it is in the UAE, and the contract is lawful by the law of Dubai. The
cigarettes are being shipped via the United Kingdom and the US Government
has sought an injunction to prevent the cigarettes being imported into the
USA.

ii. A publishing contract between an English author, domiciled and resident

in England, and a publisher with central administration in the Netherlands
which is refusing to pay the author his royalties because the book is
considerably longer than that contracted for.

iii. A contract between an Australian company and a Norwegian supermarket

chain to supply fruit. The companies have dealt with each other for many
years and previous contracts have stipulated that Australian law governs.
There is no such clause this time but there is one that provides that any
dispute is to be referred to the High Court in London.

iv. A contract between a Spanish sherry producer and a consortium of English

off-licences to supply 10,000 bottles of sherry a month. Payment is to be in
Euros at a branch of a Spanish bank in London. The contract stipulates that
‘in the unlikely event of a dispute arising between us, we will choose the law
to govern our contractual relationship’. A dispute has now arisen and the
parties cannot agree a law.

7. A & Co (Lloyd’s underwriters) insure B & Co (Belgian diamond merchants)

against loss of their stock. The contract contains a clause that it is to be governed
by Belgian law. A & Co claim the contract is void because B & Co did not disclose
it was in the habit of smuggling diamonds into Italy, where the loss occurred. If
the contract is void under English law, but not under Belgian law, which law will
apply?

8. By a contract expressly governed by English law, X, who carries on business in

England, agrees to sell Y, who carries on business in Switzerland, a quantity of
jute bags c.i.f. Genoa. Both parties know that India is the only possible source
of supply and that Y intends to resell the bags to South Africa. They also know
it is illegal under Indian law to ship jute from India if the ultimate destination
is South Africa. Will an English court enforce this contract? You might consult
Regazzoni v KC Sethia Ltd [1958] AC 301.
page 110 University of London

Sample examination questions

Question 1 Explain the concept of ‘characteristic performance’. Is it a valuable
addition to our law?
Question 2 Discuss critically the Rome I Regulation rules for the ascertainment of
the applicable law in the absence of choice by the parties. How do they differ, if at
all, from the equivalent rules of the Rome Convention?
Question 3 By a letter posted in Germany and addressed to A, an Englishman, in
England, B (a German) offers to be the sole agent of A’s goods in Germany. The letter
provides that the sole agency is to be governed by German law. A does not reply.
Under German law there is a contract. Under English law there is not. Does B have a
cause of action against A?
Question 4 A Frenchman living in Paris promises by deed made in England to make
a gift to a French charity. The promise is valid, though it does not comply with the
notarial form required by the French Civil Code. Is it formally valid? Explain.
Question 5 By a contract made in London X & Co, a French firm carrying on business
in England, agrees to sell to Y & Co, another firm carrying on business there, a
quantity of dates to be shipped by instalments from a port in Turkey, payment to
be made in England. An insurrection breaks out in Turkey and X & Co refuses to
deliver the dates. By French law it is excused from performance of the contract by
force majeure; by English law it is liable for breach of contract. The governing law is
English law. Is X & Co liable? (You might like to read Jacobs v Crédit Lyonnais [1884] 12
QBD 389 before answering this question.)
Question 6 X, an English youth of 17, agrees – while on holiday in France – to buy
a motorbike from Y, a French seller. X has capacity under French law because he is
married. He refuses to pay for the motorbike and Y intends to sue him in England.
Can X rely on the fact that he does not have capacity under English domestic law?
You might like to see Clarkson and Hill on this.

Advice on answering the questions

When answering a contract question, always check the date of the contract and ensure
that you know whether it is governed by the Convention or the Rome I Regulation.

It is important to identify the conceptual problem in issue. This is usually

straightforward, but you may get a question which involves more than one. It is
important to recognise the scope for laws other than the applicable law and to
identify which these are.
Conflict of laws  8  Contracts page 111

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain the choice of law process in contract

  
I can explain the concepts of ‘characteristic
performance’ and ‘mandatory rules’   

I can explain the conditions that apply to choice of

applicable law by parties to a contract   

I can state what rules apply in the absence of such a

choice   

I can solve problems which require you to work out

the applicable law of the contract   

I can explain the importance of material and formal

validity   

I can outline the common law rules that are applied

in cases where capacity is in question   

I can state what matters come within the scope of

the applicable law   

I can explain what rules apply when a contract

involves some illegality.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

8.1 Rome I Regulation  

8.2 Choice of law  

8.3 In the absence of express choice  

8.4 Mandatory rules  

8.5 Validity of contracts  

8.6 Capacity  

8.7 Scope of the applicable law  

8.8 Illegality  
page 112 University of London

Notes
9 Torts

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

9.1 Background: the common law rules . . . . . . . . . . . . . . . . . . . 115

9.2 The 1995 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

9.3 Rome II Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

page 114 University of London

Introduction
This chapter discusses the law applicable to issues in tort. It considers first the
common law – which remains applicable to defamation and related claims – and then
briefly the determination of the applicable law under the Private International Law
(Miscellaneous Provisions) Act 1995 Part III. It concludes with the law as now set out in
Rome II Regulation.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u outline the choice of law rules for tort (a) at common law (b) under the 1995 Act
and (c) under Rome II Regulation.
u explain the ‘displacement’ process
u describe the issues arising over questions of defamation.

Core text
¢ Clarkson and Hill, Chapter 5 ‘Non-contractual obligations’.
Conflict of laws  9  Torts page 115

9.1 Background: the common law rules

The question of what law governs liability in tort has troubled both courts and writers.
At various times it has been suggested that tort liability is governed by the lex fori, the
lex loci delicti commissi,† or a combination of these laws (the ‘double actionability’ rule). †
Lex loci delicti commissi
It was suggested by Morris (see [1951] 64 Harvard LR 881) that it should be governed by (Latin). You may already have
‘the proper law of the tort’ (i.e. ‘the law which, on policy grounds, seems to have the worked this out: ‘the law of
most significant connection with the chain of acts and consequences in the particular the place where the wrong
situation’). Continental European jurisdictions have applied the lex loci delicti commissi. was committed’.
In the USA, proper law emerged as the dominant doctrine in the 1960s. The seminal
decision was Babcock v Jackson 191 NE 2d 279 [1963]. Fuld J observed that:

Justice, fairness and ‘the best practical result’… may best be achieved by giving controlling
effect to the law of the jurisdiction which, because of its relationship with the occurrence
or the parties, has the greatest concern with the specific issue raised in the litigation.

This approach was adopted in the US Second Restatement on the Conflict of Laws, and
exerted some influence over the judicial development of the common law in England
(see Boys v Chaplin [1971] AC 356 and Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC
190). But until the 1995 Act, the common law retained the double actionability rule,
which was formulated by Willes J in Phillips v Eyre [1870] LR 6 QB 1. Willes J stated:

As a general rule, in order to found a suit in England for a wrong alleged to have been
committed abroad, two conditions must be fulfilled. First, the wrong must be of such a
character that it would have been actionable if committed in England… Secondly, the act
must not have been justifiable by the law of the place where it was done. (pp.28–29)

In Boys v Chaplin, the House of Lords had the opportunity to reconsider this 19th-
century formulation. The majority affirmed that the general rule was as stated in
Phillips v Eyre. The rule was, however, according to Lords Hodson and Wilberforce
(whose judgments came to be considered authoritative in subsequent cases) not an
invariable one, and was subject to an exception. As a result, ‘a particular issue between
the parties may be governed by the law of the country which, with respect to that
issue, has the most significant relationship with the occurrence and the parties’. In
Boys v Chaplin the lex loci delicti was displaced, and English law applied (both plaintiff
and defendant were British servicemen stationed in Malta and one suffered injury as
a result of the other’s negligence). Subsequently, in the Red Sea case, it was held that
the exception could equally well be invoked to disapply the lex fori and secure the sole
application of the lex loci delicti. And this principle was approved in Pearce v Ove Arup
Partnership Ltd [1999] 1 All ER 769.

Summary
The common law had a double actionability rule. But it eventually came to be
recognised that this was a general rule only, and could be displaced by a law which
had a more significant relationship with the occurrence and the parties.
page 116 University of London

9.2 The 1995 Act

The Private International (Miscellaneous Provisions) Act 1995, introduced reform.
From the time this came into operation in 1996, the English tort choice of law rules
were a combination of the common law and this statute. These rules will continue to
apply in relation to those torts (including defamation and invasion of privacy) which
fall outside the scope of Rome II. The 1995 Act put tort choice of law rules largely on a
statutory basis by abolishing the common law rules and by introducing new statutory
rules. The general rule (in s.11) applied the law of the country in which the events
constituting the tort or delict occur. Where the elements of these events occur in
different countries, there is a series of rules to identify the applicable law (s.11(2)).
For example, for a course of action in respect of personal injury the applicable law is
that of the country where an individual sustained the injury (s.11(2)(a)). There is also
a displacement rule, which applies a flexible exception (see s.12). This provides that
where it is substantially more appropriate for the applicable law for determining the
issues arising in the case to be the law of some other country than the one stipulated
by the general rule, the general rule will be displaced and the law of that other country
will apply. An illustration of this process is Edmunds v Simmonds [2001] 1 WLR 1003.
There are no special rules for particular torts with the exception of defamation. The
common law rules continue to apply to defamation cases.

9.3 Rome II Regulation

Rome II Regulation came into force in all European Community Member States (except
Denmark) from 11 January 2009. Rome II governs all non-contractual obligations,
including restitution and equitable obligations. It does not have retrospective effect.
The traditional English common law and statutory rules will continue to apply to
events giving rise to damage which occur before 11 July 2007 (when this Regulation
was adopted).

9.3.1
The Regulation applies to situations involving a conflict of laws to non-contractual
obligations in civil and commercial matters (Article 1(1)). A wide variety of matters is
excluded from the scope of the Regulation, for example, non-contractual obligations
arising out of family relationships including maintenance obligations. Also excluded
are non-contractual obligations arising out of matrimonial property regimes, and wills
and succession. Other exclusions include non-contractual obligations arising under
bills of exchange, cheques and promissory notes and other negotiable instruments;
those arising out of the law of companies; and those arising out of violations of privacy
and rights relating to personality including defamation. Article 1(3) provides that the
Regulation does not apply to evidence and procedure.

9.3.2
Rome II is intended to be of universal application. It applies regardless of whether the
situation giving rise to the obligation and the obligation itself has any connection with
an EU Member State. There is no need for either party to be domiciled or resident in
a Member State. The only thing that matters is that the dispute is tried in a Member
State. Article 3 provides that ‘Any law specified by this Regulation shall be applied
whether or not it is the law of a Member State’.

9.3.3
Renvoi has no place in the choice of law rules (Article 24). The applicable law refers to
the domestic law of the country in question.
Conflict of laws  9  Torts page 117

9.3.4
The general rule is set out in Article 4. It comprises three rules: a general principle,
an exception to this, and an ‘escape clause’, which functions as a let-out to both the
general principle and its exception. The three rules together are not dissimilar from
the English statutory choice of law rules.

9.3.5
Article 4 applies to a ‘non-contractual obligation arising out of a tort/delict’. But not
included are product liability, unfair competition, acts restricting free competition,
environmental damage, infringement of intellectual property rights and industrial
action. There are separate rules for these in Articles 5–9.

9.3.6
Article 4(1) provides that:

Unless otherwise provided for in this Regulation, the law applicable to a non-contractual
obligation arising out of a tort/delict shall be the law of the country in which the damage
occurs irrespective of the country in which the events giving rise to the damage occurred
and irrespective of the country or countries in which the indirect consequences of that
event occur.

9.3.7
The words ‘unless otherwise provided for’ make it clear that this provision is subject to
other provisions in the Regulation. Article 4(1) is thus subject to:

i. the exception in Article 4(2)

ii. the escape clause in Article 4(3)

iii. specific rules for special torts in Article 5–9

iv. the right of the parties to choose the applicable law (in Article 14)

v. limitations on the applicable law

a. overriding mandatory provisions of the forum (in Article 16)

b. public policy (in Article 26).

Article 4(1) presupposes that it is always possible to identify the country where the
damage occurs. This is not always so: for example, it may not always be possible to
ascertain where the damage occurred if perishable goods being transported across
Europe in a refrigerated lorry gradually rot due to the refrigeration breaking down. At
some unknown point the refrigeration breaks down and the goods rot. Presumably,
the only answer is to apply the law of the place where the damage was discovered.
Also with economic torts such as negligent misstatement, there can be very real
problems in ascertaining the place of damage. Here, it may be necessary to resort
to the rule which applies the law of the country with which the tort is more closely
connected (under Article 4(3)).

9.3.8
Article 4(2) sets out an exception to Article 4(1). This provides that ‘...where the person
claimed to be liable and the person sustaining damage both have their habitual
residence in the same country at the time when the damage occurs, the law of that
country shall apply.’

Habitual residence can change, but it is habitual residence at the time when the
damage occurs which is relevant.
page 118 University of London

9.3.9
The escape clause is in Article 4(3). This provides:

Where it is clear from all the circumstances of the case that the tort/delict is manifestly
more closely connected with a country other than that indicated in paragraphs 1 or 2, the
law of that other country shall apply.

It is not enough that the tort/delict is more closely connected with a country other
than that indicated in paragraphs 1 or 2, it must be manifestly more closely connected.
So the escape clause only applies to exceptional situations. An example is given. It
might be based on a ‘pre-existing relationship between the parties, such as a contract,
that is closely connected with the tort/delict in question.’

9.3.10
Article 4(3) operates as an escape clause from both Article 4(1) and (2). It is assumed
that Article 4(3) is likely to operate more commonly as an exception to Article 4(1).

9.3.11
There are specific rules for special torts. Only that for product liability is considered
here. Article 5 applies where there is a non-contractual obligation arising out of
damage caused by a product. It is in two paragraphs. The first is complicated: it sets
out a ‘cascading’ series of rules to which there is a lack of foreseeability exception. All
of this is subject to Article 4(2). The second paragraph of Article 5 provides an escape
from paragraph 1, based on a manifestly closer connection with another country.

The first of the cascading rules is in Article 5(1) (a), which provides that the law
applicable is ‘the law of the country in which the person sustaining the damage had
his or her habitual residence when the damage occurred, if the product was marketed
in that country’. The victim will normally have acquired the product and been injured
in the state of his habitual residence, but even if he acquired it abroad and is injured
in a state other than his habitual residence, the law of his habitual residence will still
apply. The requirement that the product was marketed in that country is designed to
protect the interests of the producer. If the product is not marketed in the country
in which the person sustaining the damage had his habitual residence, paragraph (a)
does not apply, and you move to paragraph (b). This provides that the law is applicable
to ‘the law of the country in which the product was acquired, if the product was
marketed in that country.’ If paragraph (b) does not apply, one moves to paragraph (c),
which provides that the law applicable is ‘the law of the country in which the damage
occurred, if the product was marketed in that country.

9.3.12
Rome II also applies to unjust enrichment, negotiorum gestio and culpa in contrahendo.
Unjust enrichment is considered in the next chapter.

Self-assessment question
What is the applicable law in the following cases:
u A, an English resident, suffers injuries in France when travelling as a passenger in
a car hired by his English friend, B, from X & Co, a car rental company, domiciled
in England, with branches all over Europe. B hired the car at X & Co’s branch
in Calais. A’s injuries are caused by X and Co’s failure to maintain the vehicle
properly in France. A sues X & Co in England. What law determines the standard
of care expected of X & Co?
u X & Co, an English company, owns a business magazine which is published in New
York. One issue contains a statement that A, a well-known New York politician,
is guilty of corruption. This is an actionable libel by English law, but not by New
York law because A is a public official. If A were to sue X & Co in England, would
his claim succeed?
Conflict of laws  9  Torts page 119

Activities 9.1–9.3
9.1 Why does it remain important to know the common law rules for choice of
law in tort?

9.2 State the Rome II choice of law rule which an English court will apply to an
action brought for negligence committed in Germany.

9.3 A, a Maltese resident, suffers injuries in an accident in Malta caused by the

negligence of B, an English resident holidaying in Malta. By Maltese law, A
cannot recover damages for pain and suffering. A sues B in England. Can A
recover damages for pain and suffering?

Summary
The new rule in Rome II applies the law of the country in which the damage occurs.
But it is possible to displace this law if significant factors relating to parties, events,
circumstances or consequences connect the tort with another country. There are
exceptions to these rules. Defamation is still governed by the common law rule.

Reminder of learning outcomes

By this stage you should be able to:
u outline the choice of law rules for tort (a) at common law and (b) under the 1995
Act and (c) under Rome II Regulation
u explain the ‘displacement’ process
u describe the issues arising over questions of defamation.

Sample examination questions

Question 1 The common law was described as anomalous, unjust and uncertain.
Are these criticisms fair?
Question 2 Mr and Mrs Adams, who are UK nationals domiciled in England, have
for many years corresponded with Mr and Mrs Sharma, Indians who live in Delhi.
Last year the Sharmas persuaded the Adamses to go on a climbing holiday with
them in the Himalayas. On the plane going to Delhi the Adamses met two French
students (Claude and Marie) and agreed that they could accompany them without
payment on the climbing trip. When the six of them got to the Himalayas in Nepal
Mr Adams hired the services of two local sherpas who were to act as their guides
and transport their luggage. Almost immediately after the climb began, an accident
occurred. The rope carrying the party broke and Claude plunged to his death. Mrs
Adams fractured her skull and one of the sherpas was so severely injured that he
will spend the rest of his life in a wheelchair. The rope had not been properly tied
because Mr Adams had been too busy chatting and drinking with Mr Sharma and
the two of them were inebriated.
On the assumption that by the law of Nepal:
a. there is a gratuitous passenger statute

b. wives are not permitted to sue their husbands

c. there is a state compensation fund to provide for injured sherpas; maximum

sum payable is the equivalent of £5,000

d. damages awarded against an inebriated defendant are punitive.

You are asked to advise Marie (who is Claude’s executor), Mrs Adams and the
sherpa, all of whom wish to sue Mr Adams in England.
page 120 University of London

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can outline the choice of law rules for tort (a) at

common law (b) under the 1995 Act and (c) under
  
Rome II Regulation.

I can explain the ‘displacement’ process

  
I can describe the issues arising over questions of
defamation.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

9.1 Background: the common law rules  

9.2 The 1995 Act  

9.3 Rome II Regulation  

10 Restitutionary remedies

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

10.1 Rome II Regulation (Article 10) . . . . . . . . . . . . . . . . . . . . . 123

10.2 Characterising unjust enrichment . . . . . . . . . . . . . . . . . . . . 123

page 122 University of London

Introduction
Given that the domestic law of restitution is in its infancy it should be no surprise
that the conflict of laws in this area is still developing. After discussing the issue of
characterisation, this chapter explores an important aspect of restitution – that of
unjust enrichment.
Conflict of laws  10  Restitutionary remedies page 123

10.1 Rome II Regulation (Article 10)

Rome II Regulation (Article 10) sets out special choice of law rules for unjust
enrichment. This gives an example of unjust enrichment – payments of amounts
wrongly received – but does not offer a definition of ‘unjust enrichment’.

10.2 Characterising unjust enrichment

It is first necessary therefore to characterise unjust enrichment because it is not always
clear whether an obligation arises out of unjust enrichment, contract, tort or equity.
Only if it is unjust enrichment will Article 10 apply.

10.2.1
At common law the English courts characterised the cause of action and the issue. See
Macmillan Inc v Bishopgate Investment Trust [1996] 1 WLR 387. But in the context of the
Regulation, characterisation should not be carried out through English eyes. There is a
full discussion of this in Cheshire, North and Fawcett, pp.836–42.

10.2.2
Article 10 contains four rules. It provides that:

If a non-contractual obligation arising out of unjust enrichment... concerns a relationship

existing between the parties, such as one arising out of contract or tort/delict, that is
closely connected with that unjust enrichment, it should be governed by the law that
governs that relationship.

10.2.3
Where the law applicable cannot be determined in either of these ways, ‘it shall be
the law of the country in which the unjust enrichment took place’ (Article 10(3)). But
which is that country? This could refer to:

a. the place where the legal event giving rise to the claim occurred

b. the place in which the act was committed responsible for conferring the benefit or
enrichment

c. the place where the impoverishment occurs

d. the place where the enrichment occurs.

Cheshire, North and Fawcett prefer the country in which the unjust enrichment
occurred. They point out that this is the rule in Germany, and the German law was
influential to the development of Article 10 (see p.847).

10.2.4
Article 10(4) contains an escape clause.

Where it is clear from all circumstances of the case that the non-contractual obligation
arising out of unjust enrichment is manifestly more closely connected with a country
other than that indicated in paragraphs 1, 2 or 3, the law of that other country shall apply.

It is not certain where this escape clause will operate.

Self-assessment questions
1. Why is characterisation so important in this area of conflict of laws?

2. Why is it difficult to formulate a choice of law rule?

page 124 University of London

Notes
11 Property

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

11.1 Classifications of property . . . . . . . . . . . . . . . . . . . . . . . . 127

11.2 Tangible movable property . . . . . . . . . . . . . . . . . . . . . . . 128

11.3 Intangible movable property . . . . . . . . . . . . . . . . . . . . . . 130

11.4 Negotiable instruments and shares . . . . . . . . . . . . . . . . . . . 132

11.5 Jurisdiction over immovable property situated outside England . . . . 133

11.6 Matrimonial property . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

page 126 University of London

Introduction
English domestic law divides property into real property and personal property. Civil
law systems use a different classification: movables and immovables. English conflict
of laws has adopted this, as the most universal classification. Similarly, whereas we
distinguish between choses in possession and choses in action, for conflict of laws
purposes we adopt the civilian classification of tangible movables and intangible
movables. This chapter introduces these concepts, explores some of the implications
of the different classifications, and also look at transfers involving tangible and
intangible movables. As far as tangible movables are concerned, we first explore the
possible choice of law rules, and then, having established the dominance of the lex
situs, examine the difficulties which occur when this changes. Some limitations to the
lex situs are noted. With intangible movables, it is first necessary to solve how their
situs is found (where is a debt located?). The choice of law rules regarding assignment
is then discussed and proprietary and contractual questions are differentiated. Finally,
there is a brief discussion of negotiable instruments and of shares.

Jurisdiction and choice of law in relation to immovables situated outside England are
relatively straightforward, since the lex situs is held to apply in all but a small number
of exceptions.

What system of law regulates the rights of a husband and wife in the movable and
immovable property which either of them may possess at the time of marriage or may
acquire afterwards? This is the final subject of this chapter. It is necessary to consider
separately two types of case: first, where the parties have not made an ante-nuptial
contract or settlement; second, where there is such a contract or settlement. Different
countries have different rules about the effect of a marriage on the property of the
spouses: some have a system of community of property: others (including England)
operate a system of separate property.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain movables and immovables, tangible and intangible movables, the
implications of the differences and the classification issues involved
u explain the choice of law rules for transfers of tangible movables and
assignments of intangible movables
u in relation to intangible movables, demonstrate the distinction between
proprietary and contractual questions
u state the rules which apply to negotiable instruments and shares
u explain the Moçambique rule of jurisdiction and the exceptions to it
u state the choice of law rule for immovable property
u describe the operation of lex situs in respect of capacity, the formalities and the
essential validity of transfers
u in relation to matrimonial property, identify the applicable law where there is no
marriage contract or settlement
u explain the effect that a change of domicile has on matrimonial property
u outline the law relating to ante-nuptial marriage contracts and settlements.
Conflict of laws  11  Property page 127

11.1 Classifications of property

Core text
¢ Clarkson and Hill, Chapter 9 ‘Property’, Section I ‘Movables and immovables’.

11.1.1 Movable and immovable property

To determine whether an item of property is a movable or an immovable we do not
look to English conceptual distinctions. Rather, we look to the lex situs of the property.
Were we not to do so, we would find ourselves reaching conclusions that the courts
of the relevant countries would not agree with and would not enforce. To take an
example, if A dies intestate, domiciled in England and owning a farm in Bulgaria with
animals on it, then if the animals are classified as movables, and they will be inherited
by whoever is entitled to them under English law (intestate succession to movables is
governed by the law of the last domicile of the deceased). Were they to be regarded as
immovables (as in a very old case, slaves were in Jamaica (see Ex p. Rucker [1834] 3 LJ Bcy
104), they would descend to whomsoever is entitled to them by Bulgarian law (the lex
situs governs intestate succession to immovables).

Thus, leasehold land in England (which is personal property in English law) is an

interest in an immovable. So, in Freke v Lord Carbery [1873] LR 16 Eq 461, a testator
died domiciled in Ireland, leaving a leasehold house in England. The question was
whether the validity of the disposition should be governed by English or Irish law. If the
property were regarded as an immovable, English law (the lex situs) governed. But if it
were classified as a movable, Irish law (the testator’s domiciliary law) applied. It was
held that the property in question was to be classified as immovable. The validity of
the disposition was thus governed by English law, according to which it was invalid.

A second example can be found in Re Berchtold [1923] 1 Ch 192. B died domiciled in

Hungary possessed of freehold land in England, which was settled on trust for sale
with power to postpone sale. Was this movable or immovable property? English law
regarded land held on trust for sale as personalty. Was it therefore movable property?
But the first question is whether the land was immovable or movable. And, since land
is an immovable by English law, the interest was an interest in an immovable, and so
English law governed. Only then did the question whether it was realty or personalty
arise, to determine who, under English law, was entitled to it.

11.1.2 Tangible and intangible property

The distinction between tangible movables and intangible movables is very similar to
the distinction English law draws between choses in possession and choses in action.
The rules relating to tangible movables apply to such things as paintings, jewellery
and cars. The rules relating to intangible movables apply to interests such as shares,
patents, copyright, debts and trade marks. It becomes less clear where title to an
intangible interest (e.g. shares in a company) is represented by a tangible document
(a share certificate). Questions might arise which required us to distinguish who is
entitled to possession of the certificates from who is entitled to the shares themselves.
This is discussed further below.

Summary
Property is divided into movable property and immovable property. Movable
property is itself divided into tangible and intangible movable property. There are
characterisation issues, for answers to which we look to the lex situs.

Reminder of Learning outcomes

By this stage you should be able to:
u explain movables and immovables, tangible and intangible movables, the
implications of the differences and the classification issues involved.
page 128 University of London

Activities 11.1–11.4
11.1 What are movable and immovable property?

11.2 What is land held on trust for sale but not yet sold?

11.3 What is the distinction between tangible and intangible movable property?

11.4 How is the task of classification (characterisation) undertaken?

11.2 Tangible movable property

Core text
¢ Clarkson and Hill, Chapter 9 ‘Property’, Section II ‘Transfers inter vivos’, B
‘Tangible movables’.

First, we look at the law governing the transfer of tangible movables. A number of laws
have been suggested in an effort to work out the best choice of law rule:

u the law of the domicile of the parties

But what if the parties have different domiciles?

u the lex loci actus (where the transaction took place)

Its equivalent in contract (the lex loci contractus) is out of favour, so why invoke a
similar notion here?

u the lex actus (the proper law of the transaction)

What if there is no transaction (e.g. a theft?)
Or more than one transaction in different countries?

u the lex situs

This is simple and certain (except where goods are in transit).

11.2.1 The lex situs

The lex situs is supported by dicta in many cases: see Re Anziani [1930] 1 Ch 407, 420,
Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287,
330 and Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 where Devlin J (at
p.257) said: ‘there is little doubt that it is the lex situs which, as a general rule, governs
the transfer of movables when effected contractually’.

It is now clear that the lex situs governs the transfer of tangible movables. Thus, where
the situs remains constant in one country, that country’s law will determine title to
the goods. So, the validity of a pledge in England of goods in Scotland is determined by
Scottish law (Inglis v Robertson [1898] AC 616).

Where the situs is changed by the goods being moved from one country to another, the
problem is more complicated. To illustrate, let us look at the case of Cammell v Sewell
[1858] 3 H&M 617; [1860] 5 H&M 728. Timber belonging to the plaintiff was shipped from
Russia to England on a Prussian† vessel. The ship was wrecked on the coast of Norway. †
Prussia was the most
The ship’s master sold the timber to the defendant in Norway. This gave the defendant important German state
title under Norwegian law, but not by English law. The plaintiff claimed the timber prior to the 19th-century
when the defendant subsequently brought it to England. It was held that the title unification of Germany.
acquired by the defendant when the timber was in Norway prevailed.

More recently the question was raised in Winkworth v Christie, Manson & Woods Ltd
[1980] 1 Ch 496. Works of art belonging to the plaintiff were stolen from him in England
and taken to Italy, where D2 bought them in good faith. He later sent them back to
England to be sold by auction by D1. The plaintiff brought proceedings against the
defendants in England for a declaration that the works of art had at all times been his
property. Had title passed to D2 as a result of the sale in Italy? By English law, it would
not have passed. By Italian law, it would, because the buyer was in good faith. But
which law should apply? It was held – following Cammell v Sewell – that Italian law,
as the law of the country where the goods were situated at the time of the delivery,
governed the question.
Conflict of laws  11  Property page 129
You may think this conclusion is unfair to the plaintiff. But would not a result the
other way have been unfair to D1? He was an innocent purchaser. Slade J justified his
conclusion by saying:

Commercial convenience may be said imperatively to demand that proprietary rights to

movables shall generally be determined by the lex situs (p.512).

11.2.2 Exceptions
There are some exceptions to this general rule.

u First, an English court may refuse to recognise the effect of the lex situs if it is
considered to be contrary to English public policy. But the lex situs would need to be
particularly outrageous for public policy to override it (e.g. a Nazi expropriatory law).

u Second, according to Slade J in the Winkworth case, where the purchaser claiming
title did not act in good faith. But it is possible for a purchaser who does not act
in good faith to obtain a good title in English law (see Sale of Goods Act 1979 s.48).
Why should English law take a different stance when a foreign law is in issue?

u Third, where goods are in transit and their situs is casual or unknown at the time of
the transaction, a transfer valid and effective by its proper law should be valid and
effective in England.

u Fourth, where an English statute prescribes the application of English law (i.e. there
is a mandatory rule). There is probably no such statute.

u Fifth, note the unsuccessful attempt to expand the categories of permitted

exceptions in Glencore Int v Metro Trading Int [2001] 1 Lloyd’s Rep 284; [2001] 1 All ER
Comm 103. The litigation arose out of the collapse of an oil storage facility operated
by MTI in Fujairah in the UAE. The claimants had entered into agreements with
MTI, in terms of which they delivered oil products to MTI for storage. MTI became
insolvent, and the claimants asserted proprietary rights to the oil then held by MTI.
There were competing claims by several banks, and by the purchasers of various
cargo parcels of fuel oil. The question was what law governed non-contractual
liabilities which MTI and the purchasers may have incurred to the claimants. MTI
and the producers alleged that the transfer of title to the oil was governed by the
law of Fujairah, under which property passed to MTI and then to the purchasers.
The claimants argued that relevance should be placed on the law governing the
contracts between themselves and MTI:

u So the issue was as between the immediate parties to the contract under
which goods are delivered by the party to the other, the passing of property
is governed by the intention of the parties as expressed in the contract (the
proper law) or by the law of the place where the property is situated (the lex
situs) where these do not coincide in their effect.

u The claimant argued that English law as the proper law of the contract should
apply. The court did not agree: it applied the law of Fujairah, as the situs of the
oil:

It would be highly anomalous if questions of the title to the goods were to be

governed by English law as the proper law of the contract if the seller had not
purported to re-sell the goods to a third party, but by the lex situs if he had.

u Cheshire, North and Fawcett (p.1266) retort that it would not be anomalous,
but rather ‘fact-sensitive’.

It should also be noted that if – for example in Winkworth – the Italian law would refer
to English law, an English court would apply English law. This was the view of Slade J in
that case and it seems right.
page 130 University of London

11.2.3 Renvoi
When English law refers to the law of the situs, does the doctrine of renvoi apply? This
question arose in The Islamic Republic of Iran v Berend [2007] 2 All ER (Comm) 132. The
case concerned the disputed ownership of a fragment of limestone relief believed to
originate in 5th-century BC Persepolis. The defendant claimed to have acquired title
to the fragment when it was delivered to her in Paris in 1974, following purchase at
an auction in New York. Should the English court apply French domestic law or the
relevant French conflict of laws rules as well as French domestic law? The court did
not introduce renvoi and so the question was determined in accordance with French
domestic law, under which valid title was acquired in 1974. The judge said ‘Whether or
not renvoi should apply in any given circumstance is largely a question of policy’.

Self-assessment question
Write a summary of Section 11.2 in no more than 100 words.

11.3 Intangible movable property

We now turn to questions involving the assignment of intangible movables
(intangibles). A preliminary point must be made. Unlike a piece of tangible property,
an intangible does not physically exist: the law therefore has to ascribe a situs to
intangibles. Intellectual property rights (copyrights, etc.) have their situs where, by
the law which governs their creation, they can be effectively transferred and, if they
are assigned, where their holder is. A share issued by a company is situated where the
register is kept – if it is kept in two or more countries, the situs of a share is the place
where the register is kept in which the shares can be effectively dealt with. The situs of
a debt is where it is properly recoverable or can be enforced, that is usually where the
debtor resides – if this is two or more countries, the situs is where payment is expressly
or implicitly stipulated for.

11.3.1 Provisions of the Rome I Regulation

The question of which law governs the transfer of intangible movables is far from
certain. There are old and inconsistent common law authorities. Some certainty, at
least as regards some issues, has been injected into the law by Article 14(1) of the Rome
I Regulation, which has replaced Article 12 of the Rome Convention. Article 14 will apply,
not only to contractual aspects of the assignation, but also to the proprietary ones
according to Recital 38. Article 14 states that the relationship between the assignor and
the assignee under a voluntary assignation or contractual subrogation of a claim against
another person shall be governed by the law that applies to the contract between the
assignor and the assignee under the Regulation (Article 3 if a choice of law has been
made, or Article 4 in its absence).

On principle this should be the proper law of the contract, but old cases (e.g. Lee v
Abdy [1886] 17 QBD 309) support rather the law of the place of acting. In Republica de
Guatemala v Nunez [1927] 1 KB 669 Scrutton LJ was of the view that it was either the
lex domicilii or the lex loci actus. Cheshire, North and Fawcett are of the opinion that
‘Just as there has been a development in the general common law rules of contract in
favour of the proper law as the law to govern capacity, so there should also be a similar
development in the particular context of assignment’.

The assignment of a debt may raise questions that can only be answered by first
considering the legal effect of the transaction to which the debt owes its origin. This
view is now found in Article 14(2) of the Rome I Regulation, which states that the law
governing the assigned or subrogated claim shall determine its assignability.

This will include such a fundamental question as whether the right may be assigned at
all. Thus in Trendtex Trading Corporation v Crédit Suisse [1982] AC 679, the assignability of
an English cause of action was held to be governed by English law and not by Swiss law,
the proper law of the assignment.
Conflict of laws  11  Property page 131
Where the right assigned does not arise out of a contract (for example an intellectual
property right) it is not really possible to talk of the applicable law. There are different
views as to what a court should do in such circumstances. Cheshire, North and Fawcett
hope the courts will apply Article 12 by analogy. Collier submits the governing law
should be the lex situs.

The question of priorities

Another question which arises concerns priorities. This may be illustrated by Kelly v
Selwyn [1905] 2 Ch 117. There was an assignment in 1891 in New York by X to his wife
of an interest in English trust funds. Notice wasn’t given to the trustees until 1903,
none being required by the law of New York, where X was domiciled at the time of
the assignment. In 1894 X assigned the same interest to the plaintiff in England and
immediate notice of this was given to the trustees. Held: the plaintiff ranked first, since
the rights of the claimant fell to be considered by English law. It is not clear whether
English law was chosen by the judge as the lex fori, the lex situs or the law governing
the validity of the debt. Cheshire, North and Fawcett say the third view was what really
dictated the judge’s decision (the governing law of the trust fund was English law).
This approach is confirmed by Article 14(2) of the Rome I Regulation.

The Regulation is only concerned with contractual obligations. So it is arguable

that the proprietary effect of an assignment of an intangible should be governed by
the lex situs. An assignment valid by virtue of Article 12(1) could still not confer title
on the assignee if by the lex situs it does not do so. However, this is not the view of
Cheshire, North and Fawcett (pp.1288–89) or Dicey, Morris and Collins (pp.980 and
983). The Dutch Supreme Court (in 1997) also does not agree (the case is discussed
by H. Struycken [1998] LMCLQ 35). Nor it seems does the Court of Appeal. In Raiffeisen
ZentralBank Österreich AG v Five Star General Trading LLC [2001] QB 825 the claimant was
the assignee of a marine insurance policy made with French insurers but governed by
English law. By French law (the lex situs of the debt), the assignee could not recover
since notice of the assignment had not been given to the insurers by or through a
French bailiff. By English law, the law governing the contract of insurance, he could
recover, since notice had been given in writing, which was all that was required. It
was held that Article 12(2) applied, and English law governed the matter. Clarkson
and Hill (p.483) see ‘an obvious attraction to applying the lex situs to proprietary
questions concerning intangibles’ and cite Macmillan Inc v Bishopsgate Investment
Trust plc [1996] 1 WLR 387. This involved competing claims to shares in a New York
incorporated company, although the transactions on which the claims were based
had been effected in London. The Court of Appeal held that the issue as to who has
title to shares should be decided by the lex situs. Clarkson and Hill point out that
the implication of the application of the lex situs to proprietary questions is that ‘an
assignee under a contract of assignment which is valid according to the applicable law
may, nevertheless, be unable to claim title to the intangible in question’.

11.3.2 Involuntary assignments

There are also assignments which take place without the agreement of the assignor
and assignee. These are involuntary assignments. The garnishee order is the best
example. This is a method of execution of a judgment by attachment of a debt. In
purely domestic proceedings the garnishee is effectively discharged from further
liability once he has paid the judgment creditor. Where there is a foreign element, the
position is more complicated (e.g. the garnishee may be in one country and the debt
situated in another). In garnishment proceedings in England, it is necessary that the
garnishee be within the jurisdiction or have submitted to the jurisdiction. But it is not
necessary that the judgment debtor is in the jurisdiction or that the debt is situated
within the jurisdiction. If the debt is enforceable within the jurisdiction, the court has
the jurisdiction to garnish it. As far as the garnishee is concerned, there is a risk that,
having complied with an order made in one country, he will remain liable to pay his
debt a second time if sued by the judgment debtor in a foreign court, if this were to
refuse to recognise the validity of the order. This was argued in Swiss Bank Corporation
v Boehmische Industrial Bank [1923] 1 KB 673. SB had recovered judgment for a large
page 132 University of London
sum of money against BI, a company carrying on business in Czechoslovakia. BI had an
account at a London bank and SB issued a garnishee summons against the bank. It was
argued that to make a garnishee order would be inequitable since the bank, if later
sued in Czechoslovakia, would be ordered to pay the sum again. It was held that since
the debt was situated here and the Czech bank had submitted to jurisdiction, there
was no more than a theoretical risk that it would have to pay twice over. A garnishee
order may be refused if there is a real risk that the debtor will have to pay again: see
Deutsche Schachtbau v Shell International Petroleum Co Ltd [1990] 1 AC 295. There was a
concern here that the foreign court was indulging in judicial extortion.

11.4 Negotiable instruments and shares

There is a full account of the choice of law rules relating to negotiable instruments in
Cheshire, North and Fawcett (pp.1294–97). The Bills of Exchange Act 1982 s.72 provides:

The validity of a bill as regards … form is determined by the law of the place of issue,
and the validity as regards … form of the supervening contracts, such as acceptance, or
indorsement, or acceptance supra protest, is determined by the law of the place where
such contract was made…

The interpretation of the drawing, indorsement, acceptance, or acceptance supra protest

of a bill, is determined by the law of the place where such contract is made.

In two of the relevant cases since the Act, little attention has been paid to this statutory
provision. In Alcock v Smith [1892] 1 Ch 238, the court applied the lex loci actus. In
Embiricos v Anglo-Austrian Bank [1904] 2 KB 870, the lex loci actus was again applied
(though Cheshire, North and Fawcett point out (p.1296) that what may have been in the
mind of the court was the lex situs, since this necessarily coincided with the law of the
place of acting). Section 72, however, played a decisive part in the third case, Koechlin
et Cie v Kestenbaum [1927] 1 KB 889. The Court of Appeal held that s.72 had settled the
choice of law rule in favour of the law of the place of acting (the lex loci actus).

Shares
Questions relating to title to shares are governed by the lex situs of the shares. Shares
are deemed to be situated in the country where they can be effectively dealt with
as between the shareholder and the company. Many of the issues involved may be
illustrated by examining Macmillan Inc v Bishopsgate Investment Trust plc [1996] 1 WLR
387. P (a wholly-owned subsidiary of one of the Robert Maxwell† group of companies) †
The business affairs of
owned shares in a New York incorporated company. The share register was in New Robert Maxwell, one-time
York. The shares were transferred into the name of D1 as nominee and deposited Labour MP and publishing
with the Depository Trust Co (DTC) in New York. Later, without P’s knowledge, some tycoon, were extremely
of the shares were used by Maxwell companies to secure loans from three banks, complicated by the time of
who became D2. These loans were secured initially either by deposit of the share his mysterious death in 1991.
certificates in England or by transfer of the shares to D2 through the DTC system in New Maxwell had defrauded the
York. Eventually, all the shares were registered in New York in the names of the banks. shareholders and pension
funds of several of his
P sought a declaration that it was beneficially entitled to the shares as being held by
companies and embezzled
D2 on trust for it. Was P’s claim governed by New York law (in which case it would fail
large sums of money.
since D2 were bona fide purchasers without notice of P’s claim, or by English law, under
which P could rely on constructive notice of its claim). The Court of Appeal classified
the issue as proprietary, not restitutionary (see Chapter 10). The issue was, it said,
whether D2 had a good defence as bona fide purchasers for value without notice of P’s
claim. The question then was which law was to be applied to the issue of priority of
title to the shares. The Court of Appeal concluded that the applicable law was that of
the situs of the shares (i.e. New York law).

It is necessary to distinguish the situs of shares from the situs of the share certificates
(at least where the shares are non-negotiable). In Macmillan the court said that the
situs of such share certificates is where the certificates physically are situated at the
time of the transfer.
Conflict of laws  11  Property page 133

Self-assessment questions
1. A painting is stolen from a church in Italy. The thief sells it to an art dealer in
Switzerland who brings it to England to have it auctioned at a major auction
house in London. The church seeks a declaration from the English court that the
title to the painting still vests in it. By the law of what country will the case be
decided?

2. Mr A, who is domiciled in X, insured his life with an English insurance company.

He subsequently assigned it to Mrs A in X. By the law of X the assignment is
invalid because donations between spouses are invalid. Can Mrs A claim on the
policy in England (by the law of which such an assignment is valid)?

3. Explain the conflict of laws issue which may arise in garnishment proceedings.

4. Write a critical note on Macmillan Inc v Bishopsgate Investment Trust plc.

Summary
In the case of negotiable instruments such as bills of exchange the choice of law is the
lex loci actus. Matters relating to shares are governed by the lex situs, which is the place
where issues between the owner and the issuing company can effectively be dealt with.

Reminder of learning outcomes

By this stage you should be able to:
u explain the choice of law rules for transfers of tangible movables and
assignments of intangible movables
u in relation to intangible movables, demonstrate the distinction between
proprietary and contractual questions
u state the rules which apply to negotiable instruments and shares.

11.5 Jurisdiction over immovable property situated outside

England

Core text
¢ Clarkson and Hill, Chapter 2 ‘Civil jurisdiction’, Section III ‘Declining jurisdiction
and staying proceedings’, B.4 ‘Cases involving immovable property not
regulated by the Brussels I Regulation’.

11.5.1 The Moçambique rule

In British South Africa Co v Companhia de Moçambique [1893] AC 602 the House of Lords
held that as a general rule the English courts have no jurisdiction to try any action
involving the determination of title to or the right to possession of immovable
property situated out of England. In parenthesis it may be noted that this was
extended to bar actions concerning the validity or infringement of rights arising under
foreign copyright or other intellectual property laws (Tyburn Productions Ltd v Conan
Doyle [1991] Ch 75). This self-denying rule was extended in Hesperides Hotels v Aegean
Turkish Holidays Ltd [1979] AC 508 to bar an action in respect of an alleged conspiracy
in England to trespass upon a hotel in Cyprus. But this was reversed by the Civil
Jurisdiction and Judgments Act 1982 s.30, which provides that jurisdiction to entertain
proceedings for trespass, or any other tort affecting immovable property, extends to
property situated outside England ‘unless the proceedings are principally concerned
with a question of title to, or the right to possession of that property’.

The Moçambique rule is subject to two exceptions. First, where an English court is
administering a trust or will which consists in whole or part of foreign land, and the
question of title arises incidentally. Secondly, it is said that English courts can act in
personam upon a person within their jurisdiction to enforce a personal obligation
page 134 University of London
when the subject matter is land abroad. It does this by making a decree of specific
performance, and treating him as in contempt of court if he disobeys. There are three
requirements:

u the defendant is within the jurisdiction (or can be served under CPR 6.20)

u the subject matter of the action arises out of a

u contract between the parties

u or concerns fraudulent or other unconscionable conduct

u or arises from an equitable or fiduciary relationship

u the act the defendant is ordered to do is not illegal or impossible by the lex situs.

11.5.2 Choice of law

The choice of law rules could not be more straightforward, since there is almost
total dominance of the lex situs. There are exceptions to the lex situs in the case of
succession, but none as regards inter vivos transfers. The rule was authoritatively
stated in Nelson v Bridport [1846] 8 Beav 547. Lord Langdale MR stated:

The incidents to real estate, the right of alienating or limiting it, and the course of
succession to it, depend entirely on the law of the country where the estate is situated (at
p.570).

There is criticism of the rule today but it is likely to survive any onslaught because:

at the end of the day, only the law of the situs can control the way in which land, which
constitutes part of the situs itself, is transferred (Cheshire and North, p.1256).

‘Law of the situs’ means the whole of the law of the situs. This is one area where the
doctrine of renvoi applies (see Re Ross [1930] 1 Ch377; Re Duke of Wellington [1947] Ch 506).

Capacity to convey or take a conveyance of foreign land is governed by the lex situs.
In Bank of Africa v Cohen [1909] 2 Ch 129, a married woman, domiciled in England, by a
deed executed in England, agreed to make a mortgage to a bank in England of her land
in South Africa to secure the debts of her husband. Under South African law she lacked
the capacity to do this. It was held she had no capacity to enter into the agreement.
Buckley LJ said ‘Mr Dicey’s language I think is correct, that a person’s capacity to make
a contract with regard to an immovable is governed by the lex situs’. But was the South
African rule intended to protect married women domiciled in other countries?

The formal validity of a transfer of immovables is governed by the lex situs. See Adams
v Clutterbuck [1883] 10 QBD 403 (a conveyance between two domiciled Englishmen of
shooting rights in Scotland was valid despite not being under seal, which was required
by English law – it was not required by Scots law).

Essential validity too is governed by the lex situs. Thus, a disposition of English land
which contains limitations that infringe the rule as to perpetuities is void (Re Grassi
[1905] 1 Ch 584, 592). The lex situs determines what legal estates can legally be created
and the incidents of those estates.

Activities 11.5–11.6
11.5 What is the Moçambique rule?

11.6 What exceptions are there to the Moçambique rule?

Summary
Under the Moçambique rule English courts have no jurisdiction over actions regarding
title or possession of properties situated overseas (though they may try certain torts
related to such properties). There are some minor exceptions relating to wills and
trusts that include foreign land. The choice of law in matters relating to immovable
property outside England and Wales is the lex situs. This includes matters of capacity,
though as usual there are some minor exceptions.
Conflict of laws  11  Property page 135

Self-assessment questions
1. A man of 20 who is domiciled in the Netherlands (by the law of which he is a
minor) owns freehold land in London. Can he convey it? Explain.

2. A domiciled Scotsman conveys to a purchaser, also a Scots domiciliary, the

right of shooting over land on the Yorkshire Moors in Northern England. The
conveyance is by an instrument not under seal. This does not comply with
English law. Is the conveyance valid? Explain.

3. A domiciled Englishman conveys land in New York upon trusts which infringe
the New York rule against perpetuities. Are the trusts valid? What additional
information do you require to answer this question?

Reminder of learning outcomes

By this stage you should be able to:
u explain the Moçambique rule of jurisdiction and the exceptions to it
u state the choice of law rule for immovable property
u describe the operation of lex situs in respect of capacity, the formalities and the
essential validity of transfers.

11.6 Matrimonial property

Core text
¢ Clarkson and Hill, Chapter 9 ‘Property’, Section III ‘Matrimonial property’.

11.6.1 Effect of the matrimonial domicile

In the absence of a marriage contract or settlement the effect of the marriage on the
movable property of the spouses is governed by the matrimonial domicile. The effect
of marriage on immovable property would seem to be governed by the lex situs.

What is meant by ‘matrimonial domicile’? This has been held to be the domicile of the
husband at the time of the marriage. Thus, in Re Egerton’s Will Trusts [1956] Ch 593, a
domiciled English soldier married a domiciled French woman in England. They agreed
they should set up home in France ‘as soon as possible’, but it took them two years.
On the husband’s death his widow claimed that the estate was to be administered in
community as under French law. This claim was rejected. France may have been their
intended matrimonial home – and Cheshire had argued that this should be the test –
but the husband’s domicile at the time of the marriage was England. This was the law
of the matrimonial home. The judge accepted that in exceptional circumstances this
presumption could be rebutted in favour of the intended matrimonial home (if the
parties went at once and were then possessed of little property). Of course, now that
a married woman can have her own domicile, it might be easier to displace the law of
the husband’s domicile. A frequently-cited South African decision is Estate Frankel v The
Master [1950] (1) SA 220: a West German and a Czech married in Czechoslovakia, having
agreed to go to live in South Africa. They did so four months after the marriage. The
South African court held that West German law, under which their property was not
held in community, applied, not South African law under which it was.

Change of domicile
What is the effect of a change of matrimonial domicile in such cases? There are two
competing theories, those of ‘immutability’ and ‘mutability’. Mutability is the favoured
doctrine in the USA and there is an old Scottish case supporting it (Lashley v Hog [1804]
4 Paton 582). Under this doctrine, rights to property acquired after the change of
domicile are regulated by the law of the parties’ domicile at the date of its acquisition.
Under immutability, the parties’ property acquired after the change of domicile is
subject to the regime which was established before the change of domicile.
page 136 University of London
Lashley v Hog concerned a Scotsman with an English domicile who married a domiciled
English woman, and then re-acquired a domicile in Scotland. They died and their
daughter brought an action in the Scottish court claiming a share in the husband’s (her
father’s) movable property. Her argument was that it was subjected during the husband’s
lifetime after the change of domicile to community of property, and she was entitled
in right of her mother. The House of Lords agreed. The question of how much this case
offers to mutability depends upon interpretation of the ratio decidendi. It seems that the
Lords may have seen the case as one relating to testamentary, rather than matrimonial,
law. Certainly, that was how the House of Lords interpreted it in De Nicols v Curlier [1900]
AC 21. Cheshire, North and Fawcett (p.1370) conclude that ‘A more decisive authority than
Lashley v Hog must be found before it can be categorically asserted that the proprietary
relations of husband and wife change with a change of their domicile’. They believe
that ‘the clue’ to a statement of the law is the distinction between ‘inchoate and vested
rights’. They conclude (p.1021) that ‘if it should ultimately be decided that the proprietary
rights of spouses change with a change in their domicile, this would presumably be
subject to the exception that rights vested in either party under the law of some previous
domicile remain unaffected’. And, as they note, this view was accepted in two Canadian
decisions: Pink v Perlin & Co [1898] 40 NSR 260 and Re Heung Won Lee [1963] 36 DLR (2d) 177.
And, presumably, now that both spouses can change their domicile, it should require a
change by both to affect their property.

Thus far everything said has related to movables. Of course, rights in relation to
immovable property are governed by the lex situs. See Welch v Tennent [1891] AC 639.
One implication of this is that a holiday home purchased by a husband domiciled in
England in a country where property was held as community property would find –
you may think to his surprise – that the holiday home was community property.

Self-assessment question
What is the case for mutability? Why do you think it is the dominant doctrine in the
USA?

11.6.2 Ante-nuptial contracts

We turn now to the situation where the parties have made an ante-nuptial contract.
First, note that this is governed by the common law because the Rome I Regulation
does not apply to contractual obligations relating to ‘rights in property arising out of a
matrimonial relationship’. If a contract is made it will govern proprietary rights even if
domicile changes – the mutability/immutability question does not arise – and applies
whether the property is movable or immovable.

Express and tacit contracts

No distinction is drawn between an express and a tacit contract. The leading case
is De Nicols v Curlier [1990] AC 21 (the ‘Café Royal’ case). H and W, French nationals
with a French domicile, married in France without making an express contract as
to their proprietary rights. Nine years after their marriage, they came to England,
acquired a domicile here and became wealthy as their small café became the Café
Royal† in Regent Street. H died, having disposed of all his property in his will without †
The Café Royal is a large and
taking account of the wife’s entitlement to a half share under the French system of famous establishment in
community property. Had their change of domicile affected their legal position in Regent Street, one of Central
relation to the property? The House of Lords considered first their movables. Expert London’s most expensive and
evidence as to French law – this would be different today – was that parties who marry sought-after locations.
without an express marriage contract were bound by an implied contract to comply
with the system of community. Lord Macnaghten concluded:

if there is a valid compact between spouses as to their property, whether it be constituted

by the law of the land or by convention between the parties, it is difficult to see how that
compact can be nullified or blotted out merely by a change of domicile.

The question of the English immovables was then considered by Kekewich J (in Re De
Nicols [1990] 2 Ch 410). He held that the French implied contract extended to immovables
in England as well. There are weaknesses in Kekewich J’s judgment – there usually were.
On this see Cheshire, North and Fawcett (p.1373) and also the useful discussion in Dicey,
Conflict of laws  11  Property page 137
Morris and Collins (pp.1071–73). There is support for the application to immovables of the
law governing the ante-nuptial contract in Chiwell v Carlyon [1897] 14 SC 61 (South Africa)
(the case is fully discussed in Cheshire, North and Fawcett, p.1374).

The law on capacity to make a marriage contract is far from certain. If we reason by
analogy to commercial contracts we would (probably) conclude that the proper
law of the contract should govern. If we use the model of capacity to marry, then
we would conclude that the lex domicilii should govern, that is capacity would be
governed by the law of the domicile of the party alleged to be incapable. The better
view is that capacity is governed by the proper law of the contract, which is usually
(but not necessarily) the law of the matrimonial domicile. One can point to cases
which superficially support the lex domicilii but on examination none of these cases
is convincing or, indeed, totally supports that proposition (see Cooper v Cooper (1888)
13 App Cas 88; Re Cooke’s Trusts [1887] 56 LJ Ch 637 and Viditz v O’Hagan [1900] 2 Ch 87).
There is a good analysis of these cases in Cheshire, North and Fawcett (pp.1355–77).

For a marriage contract to be formally valid it needs to be so either by the proper law
or the lex loci contractus. Compliance with either of these laws is sufficient. See Van
Grutten v Digby [1862] 31 Beav 561 and Guépratte v Young [1851] 4 De G & Sm 217.

The essential validity of a marriage contract is governed by its proper law. This may
be expressly chosen: in the absence of choice, the proper law will be the law of the
country with which the contract is most closely connected. There is a presumption in
favour of the law of the matrimonial domicile: Re Fitzgerald [1904] 1 Ch 573. The proper
law will continue to govern even if the parties go to live in a country where a different
law prevails.

A marriage settlement may create a trust. If it does, essential validity will be governed
by reference to the Recognition of Trusts Act 1987 (see Chapter 12).

The Civil Partnership Act 2004 is silent on choice of law rules regarding the property
rights of civil partners. It is probable that they will be determined by the same rules as
those of married persons.

11.6.3 The European instruments

Regulations 2016/1103 and 2016/1104 of 24 June 2016, implementing enhanced
cooperation in the area of jurisdiction, applicable law and the recognition and
enforcement of decisions in matters of matrimonial property regimes and property
consequences of registered partnerships respectively, provide for uniform rules aiming
at facilitating the delivery of the relevant judgments in cross-border disputes. The
two Regulations are almost identical in terms of the numbering of the Articles and
the content. Both Regulations came into force on 29 January 2019 and they only apply
to 19 Member States, with the UK having opted out on the basis that it does not have
matrimonial regimes within its family law. The two instruments apply to marriages that
were celebrated and civil partnerships that were entered into after 29 January 2019.
They also apply in respect of issues of recognition and enforcement where proceedings
were initiated before 29 January 2019, as long as the decision is given after that date.

According to Article 21 of both Regulations, the rules on applicable law are universal
in scope. Therefore, the law of any state (and that includes non-EU Member States)
may be found to be applicable. The law provided by the Regulations is applicable to all
property, irrespective of the country the property is situated in.

The Regulations come into play in the event of the death of one of the spouses/
partners (Article 4) or in the case of divorce/dissolution or annulment of the
partnership (Article 5). In the former case, the court in a competent Member State in
accordance to Regulation 650/2012 will have jurisdiction in matters arising from the
matrimonial property/property consequences of the registered partnership.

In the case of divorce/dissolution or annulment, the court seized will have jurisdiction,
as long as the spouses/partners are in agreement. It should be pointed out that Articles
4 and 5(1) are only applicable in cases where a competent court has been seized.
page 138 University of London
In other circumstances, or when spouses/partners fail to reach an agreement
according to Article 5, jurisdiction lies with the courts of the Member State in the
territory of which the spouses/partners have their habitual residence. Articles 6, 7, 8
and 9 provide for jurisdictional alternatives but, if eventually no court is found to have
jurisdiction, a court may be found to have secondary jurisdiction according to Article
10. Article 11 allows for forum necessitatis, as a last resort.

Pursuant to Article 22, spouses/partners or future partners may choose the law of the
state they want to apply to their matrimonial property regime/property consequences
of the registered partnership. In the absence of a choice of law agreement, Article 26
makes provisions in relation to the applicable law. It should be pointed out that the
two instruments differ slightly on the jurisdictional basis that the parties may adopt
for the choice of law agreement because of the uncertainty as to whether a country
would recognise the registered partnership. The same applies in respect of the
applicable law in the absence of a choice of law agreement.

Finally, in accordance to Article 36, a decision given in a Member State shall be

recognised in the other Member States without any special procedure being required.
Similarly, a decision enforceable in one Member State shall be enforceable in another
Member State when it has been so declared in accordance with the procedure
provided for in Articles 44 and 47 of the Regulations.

Summary
In different legal systems marriage has different effects on property. Conflict of laws
distinguishes between those where there is no marriage contract or settlement and
those where there is. Where there is no contract or settlement, the main problem
occurs where the parties move from one country to another. The main issues relating
to contracts revolve around capacity and formal and essential validity.

Reminder of learning outcomes

By this stage you should be able to:
u in relation to matrimonial property identify the applicable law where there is no
marriage contract or settlement
u explain the effect that a change of domicile has on matrimonial property
u outline the law relating to ante-nuptial marriage contracts and settlements.

Sample examination questions

Question 1 In 1937 the Nazi Government in Germany looted the house of a German
Jew. Amongst the property stolen was a valuable painting. The painting was sold in
Germany to an Austrian art gallery. (You may assume that property in the painting
passed to the art gallery under the German law of the time.) There is currently in
London an exhibition of paintings and the Austrian art gallery has lent the London
gallery the painting in question. The grandson of the German Jew is now seeking the
return of the painting. Advise him.
Question 2 What scope is there for the application of laws other than the lex situs
in determining questions relating to the transfer of tangible movables and the
assignment of intangibles.
Question 3 Clarissa, whose domicile of origin was in England, married Pierre, a
wealthy French property developer with a domicile in France in 1965. By the law
of France, unless parties agree to the contrary, there is community of property
between married couples. The matrimonial home was set up in France where
they lived until 1970. In 1970 when Pierre had accumulated 10 million dollars, they
moved to England. Pierre’s property development continued to prosper and when
he died in 2006 he was worth 30 million dollars. He also had a chateau in France,
worth 5 million Euros.
By the law of France Clarissa is entitled to half of Pierre’s property. She wants to know
whether she can claim half of his assets. Pierre’s brother is contesting the claim.
Advise Clarissa.
Conflict of laws  11  Property page 139
Question 4 What if Clarissa and Pierre had made a marriage contract and she had
agreed that on Pierre’s death her maximum entitlement was 1 million dollars?
Use the facts of Question 3 to advise Clarissa.
Question 5 Discuss critically the law regulating the effect of marriage on property
in the English conflict of laws. Should civil partnership have the same effect? What
about cohabitation?
page 140 University of London

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain movables and immovables, tangible

and intangible movables, the implications of the
  
differences and the classification issues involved

I can explain the choice of law rules for transfers of

tangible movables and assignments of intangible
  
movables

I can in relation to intangible movables, demonstrate

the distinction between proprietary and contractual
  
questions

I can state the rules which apply to negotiable

instruments and shares   

I can explain the Moçambique rule of jurisdiction and

the exceptions to it   

I can state the choice of law rule for immovable

property   

I can describe the operation of lex situs in respect of

capacity, the formalities and the essential validity of
transfers   

I can, in relation to matrimonial property, identify

the applicable law where there is no marriage
  
contract or settlement

I can explain the effect that a change of domicile has

on matrimonial property   

I can outline the law relating to ante-nuptial

marriage contracts and settlements.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

11.1 Classifications of property  

11.2 Tangible movable property  

11.3 Intangible movable property  

11.4 Negotiable instruments and shares  

11.5 Jurisdiction over immovable property situated outside  

England
11.6 Matrimonial property  
12 Succession and trusts

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

12.1 Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

12.2 The EU Succession Regulation (Brussels IV) . . . . . . . . . . . . . . . 145

12.3 Trusts: the Hague Convention rules . . . . . . . . . . . . . . . . . . . 147

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

page 142 University of London

Introduction
This chapter begins by discussing the administration of estates and succession.
On the first question it examines the circumstances in which an English court may
appoint a representative and those when an English court will recognise the grant of
a foreign representative. On succession it discusses succession to both movables and
immovables, focusing in each case on questions relating to capacity, formal validity
and essential validity.

We then go on to the related issue of trusts. Before 1987, when the Recognition of
Trusts Act was passed, English conflict of laws offered very little guidance on the choice
of law rules governing trusts, or the rules for the recognition of foreign trusts. An
explanation is the virtual absence of the concept outside the common law world. As a
result of the Hague Convention (in 1986), the Recognition of Trusts Act was passed. Our
main interest in getting the Convention was to secure recognition of English trusts by
the courts of other countries. The Act deals – despite its name – with choice of law as
well as recognition questions.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u explain the rules for administration of estates
u outline the main issues relating to intestate succession and to wills, including
capacity, formal validity, essential validity, construction and revocation
u state the choice of law and recognition rules for trusts
u state the law on variation of trusts.
Conflict of laws  12  Succession and trusts page 143

12.1 Succession

Core text
¢ Clarkson and Hill, Chapter 9 ‘Property’, Section IV ‘Succession’.

12.1.1 Appointment of representatives

Upon the death of a testator or an intestate, the question arises as to who is to pay
the deceased’s debts and distribute his assets in accordance with his will or the rules
of intestate succession. This task is undertaken by the personal representative. In
England, the personal representative must obtain the authority of the court before he
can act (even if he is appointed in the will).

Two types of issue may arise.

First, under what circumstances can an English court appoint a representative? The
courts have a wide jurisdiction to make a grant of representation. A grant may be
made even when the deceased leaves no property in England (see Administration of
Justice Act 1932 s.2(1) and Supreme Court Act 1981 s.25(1)). A grant will normally extend
to all the deceased’s property, wherever this is situated. But whether the English
representative will be able to deal with the property situated in foreign countries
will depend upon whether the English grant is recognised there. Where the deceased
died domiciled in a foreign country, the English court will make the grant in the first
instance to the person entrusted with the administration of his estate under the law of
his domicile.

Second, when will the English court recognise a grant of a foreign representative? The
status of an administrator appointed by a foreign court is not recognised in England: his
title relates only to property that lies within the jurisdiction of the country from which
he derives his authority. Therefore, he has no right to take or recover by action property
in England without a grant from an English court. If, without such a grant, he succeeds
in obtaining property in England, he is liable as an executor de son tort to account for
assets received. Although a foreign administrator is not permitted to sue in England as
the representative of the deceased, he may enforce by action a right that is personal to
himself, and which he is entitled to assert in his own individual capacity.

All matters of administration are governed by the law of the country in which the
grant is obtained.

12.1.2 Succession to movables

Most systems adopt the principle of unity of succession (i.e. questions of succession
are governed by one single law). English law, by contrast, adheres to the principle of
scission, that is issues of movables and immovables are governed by different laws,
respectively the lex domicilli and the lex situs).

Where the deceased dies intestate, movable property is distributed according to his
lex domicilii at the time of his or her death.

Testamentary succession to movables is governed exclusively by the lex domicilii of the

deceased as it existed at the time of his death. A subsequent change in the lex domicilii
is in general of no effect. Lynch v Provisional Government of Paraguay (1871) LR 2 P&D 268
illustrates this.

Capacity
Capacity to make a will is determined by the testator’s domiciliary law: Re Fuld’s
Estate (No.3) [1968] P 675. Where the testator changes his domicile after making his
will, which law governs? There is no authority on this, but in principle it should be
the domiciliary law at the time of making the will. The capacity of a legatee to take
a bequest is determined by either his domicile or the law of the testator’s domicile.
In Re Hellman’s Will (1866) LR 2 Eq 363, the law most favourable to the propositus was
selected.
page 144 University of London

Formal validity
Formal validity is governed by the Wills Act 1963. Under this a will is treated as
properly executed if its execution conforms to the internal law – there is no scope for
renvoi – of the law in force in any of:

u the territory where the will was executed

u the territory where the testator was domiciled

either at the time of making the will
or the time of his death

u the territory where he was habitually resident

either at the time of making the will
or at the time of his death

u the State of which the testator was a national

either at the time of making the will
or at the time of his death.

Essential validity
The essential validity of a will (or of any particular gift of movables in it) is determined
by the law of the country in which the testator was domiciled at death. This
determines whether and to what extent a will is invalid by reason of a requirement
that a certain part of the estate (the legitima portio) must go to a particular person or
class of persons. Renvoi has been applied here: Re Annesley [1926] Ch 692. An illustration
is Re Groos [1915] 1 Ch 572. A Dutch lady made her will in the Netherlands, constituting
her husband heir of her movable property except for ‘the legitimate portion to which
her descendents were entitled’. She died domiciled in England, leaving a husband and
five children. By Dutch law the legitimate portion was three-fourths of the estate. By
English law it was nothing. Held: since the will operated under English law, the whole
estate passed to her husband.

But there is a distinction between a right to give and a right to receive. For example,
there is no reason of principle why a legatee domiciled in France should not take
despite the bequest being contrary to the English rule against perpetuities.† The object †
‘Basically, the rule against
of the perpetuity rule is local, and cannot justifiably be invoked to destroy a bequest of perpetuities prevents settlors
money that is to be enjoyed and administered in a foreign country. US and Australian creating perpetual trusts. At
courts have come to this conclusion. See Cheshire, North and Fawcett, pp.1346. some point, the beneficiaries
must be free to wind up the
Interpretation (or construction) of wills of movables is governed by the law intended by trust and call for a transfer
the testator. Although the law is not beyond doubt, the best approach is to look to the of the trust rights to them.
testator’s law of domicile at the time when he makes his will. This is, of course, the law The only exception is with
with which he is most likely to be familiar. Of course, this rule will be displaced if it is the regard to charitable trusts,
case that the testator intended construction according to some other system of law. to which no perpetuity
period attaches.’ From the
Revocation of a will Law of trusts module guide,
Chapter 5.
A will can be revoked in three ways. Each must be treated separately.

By a later will
A will purporting to revoke an earlier will is formally valid if it satisfies the
requirements of any one of the laws, by which, under the Wills Act 1963, its formal
validity is determinable. Additionally, the revoking will is effective if it complies with
the requirements of any one of the laws qualified to govern the formal validity of the
earlier will.

By destruction of the will

This is governed by the common law principle of domicile. A problem is created if the
testator has one domicile at the time of the act of destruction, and another at the time
of his death. An effective revocation by the earlier law may be ineffective by the later.
The better view is that the legal effect of the act of destruction falls to be determined
at the time of its performance.
Conflict of laws  12  Succession and trusts page 145
By marriage
In English law – though in few others – a will is revoked by a subsequent marriage,
unless explicitly stated to be in contemplation of it. The question that may arise is
whether it is the domiciliary law at the time of the marriage or at the time of death
which determines the effect of marriage on the will. If the former, then its effect must
be tested by the lex domicilii at the time of the marriage; if the latter, by the lex domicilii
at the time of the death. English law has classified this as a rule of matrimonial
law, rather than of testamentary law. This seems right as it is essentially a doctrine
concerned with the relationship of marriage: see Re Martin [1900] P 211. If the spouses
have different domiciles (possible since 1974), it will be the domicile of the testator at
marriage which is the governing law.

Summary
English law adheres to the principle of scission: movables and immovables are
governed by different laws. Succession to movables is governed by the testator’s lex
domicilii at the time of his or her death. Capacity is also governed. The law relating to
formal validity is in the Wills Act 1963. Essential validity is determined by the law of the
country in which the testator is domiciled at the time of his or her death. Wills may be
revoked by a later will, destruction of a will, or marriage.

12.1.3 Succession to immovables

Intestate succession to immovables is governed by the lex situs. This rule can be
criticised (see Morris [1969] 85 LQR 339, 348–52). It is a historical anomaly. You should
read Re Collens [1986] Ch 505 for a good example of the complications of the rule.

Testamentary succession to immovables is also governed by the lex situs.

Although there is little authority, there is no doubt that the lex situs determines both
capacity to make a will of immovables and capacity to take a bequest.

Formal validity is governed by the Wills Act 1963. Accordingly, compliance with
any one of the laws in s.l is sufficient. Additionally, the Act retains the common law
rule that compliance with the formalities of the lex situs is sufficient (s.2(1)(b)). The
provision actually says ‘the internal law in force in the territory where the property is
situated’, thus excluding renvoi.

Essential validity is governed by the lex situs, including its choice of law rules. The
doctrine of renvoi is thus used here.

It is generally accepted that a will of immovables must be considered according to

the system intended by the testator. This is presumed to be the law of his domicile at
the time when the will is made, but the presumption may be rebutted if the evidence
is adduced from the language of the will proving that he made his disposition with
reference to some other legal system. But if the interest which arises from such
construction is not permitted or recognised by the law of the situs, the latter law must
prevail. See Studd v Cook [1883] 8 App Cas 577 and Re Miller [1914] 1 Ch 511 (Cheshire,
North and Fawcett, pp.1353–54 is a useful discussion of these cases).

In general, revocation is dealt with as it is for movables (Section 12.1.2). But where
revocation by subsequent marriage is in issue, there is some dispute about whether
this should be referred to the lex situs or the law of domicile at marriage. One English
authority (Re Caithness [1891] 7 TL R 354) supports the situs. An Australian case (Re
Micallef’s Estate [1977] 2 NSWLR 929) supports the lex domicilii. Cheshire, North and
Fawcett (pp.1358) supports the lex domicilii. You can read about Re Micallef’s Estate there.

12.2 The EU Succession Regulation (Brussels IV)

Regulation (EU) 650/2012 on ‘jurisdiction, applicable law, recognition and enforcement
of decisions and acceptance and enforcement of authentic instruments in matters of
succession and on the creation of a European Certificate of Succession’ (also referred
to as ‘Brussels IV’) was adopted on 4 July 2012, has been in force upon the deaths of
page 146 University of London
residents of the succession countries since 17 August 2015, and constitutes a major
step towards the facilitation of cross border successions. It should be noted that
the United Kingdom, Ireland and Denmark have opted out of Brussels IV and as a
consequence they are not covered by its provisions. The rationale behind the decision
of the United Kingdom and Ireland to opt out had to do with concerns in relation
to the obligation of one Member State to apply claw back provisions applicable
to lifetime gifts in the law of another state. In England and Wales, for example, no
such provisions exist, but instead individuals are given full rights of lifetime and
testamentary disposition over their property.

12.2.1 Overview of the EU Succession Regulation

The Regulation consists of seven chapters. Chapter I (Scope and Definitions), Chapter II
(Jurisdiction), Chapter III (Applicable Law), Chapter IV (Recognition, Enforceability and
Enforcement of Decisions), Chapter V (Authentic Instruments and Court Settlements),
Chapter VI (European Certificate of Succession) and Chapter VII (General and Final
Provisions). The objectives of the Regulation as enshrined in Recitals 7 and 8 are to
remove obstacles to the free movement of persons who currently face difficulties in
asserting their rights in the context of a succession having cross-border implications,
enable EU citizens to organise succession matters in advance and guarantee the rights
of heirs and legatees, of other persons close to the deceased and of creditors of the
succession. It should be noted that Brussels IV does not affect the situation of people
who remain resident in their home country. It does not introduce any harmonisation
of national laws.

See the Summary of the Regulation – ‘Jurisdiction, applicable law and a European
Certificate in succession matters’ – at http://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=URISERV%3Ajl0070

There is also a useful summary of the Regulation in the presentation by Deville,

R. ‘Brussels IV in a nutshell’, EJTN seminar on cross-border inheritance law, 17 – 18
February 2014, Recklinghausen which can be found at www.ejtn.eu/PageFiles/6333/
Brussels_IV_nutshell.pdf

12.2.2 Renvoi
Article 34

(1) The application of the law of any third State specified by this Regulation shall mean
the application of the rules of law in force in that State, including its rules of private
international law in so far as those rules make a renvoi:

(a) to the law of a Member State; or

(b) to the law of another third State which would apply its own law.

(2) No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22,
Article 27, point (b) of Article 28 and Article 30.

In most circumstances, renvoi… will longer be relevant under Brussels IV. However, renvoi
will be relevant where the law which applies to a deceased’s estate under Brussels IV rules
is that of a non-Brussels IV state, and that state’s law makes a renvoi to the law of a Brussels
IV state or to the law of another non-Brussels IV state, which would apply its own domestic
law.

Where a choice of national law has been made (and in certain other circumstances), no
renvoi will apply.

(www.internationallawoffice.com/Newsletters/Offshore-Services/European-Union/
Lawrence-Graham-LLP/The-long-arm-of-EU-law-the-new-European-Succession-Regulation)

The importance of the ESC results mainly from its use and meaning, which establishes
a presumption regarding the status of heirs, legatees or that the content of the ESC is
authentic...
Conflict of laws  12  Succession and trusts page 147

ESC will not present authentic instrument, judicial decision and an enforceable title and
will not replace national documents or procedures, but will rather present a certificate
with probative value which reflects elements identified by the law applicable to the
succession.

(www.ejtn.eu/PageFiles/6333/European_succession_certificate.pdf)

As the UK has opted out of Brussels IV, the ECS won’t be given automatic recognition in
the UK and Confirmation or Probate will still be needed in relation to assets in the UK.

(www.morton-fraser.com/knowledge-hub/eu-succession-what-has-changed)

Self-assessment question
Mr Jones is a national of Utopia who is domiciled in Urbania. He died intestate
recently in England. He left a house in Utopia and shares in companies in England.
He had three children (a son and two daughters), the youngest of whom is 13. His
wife died five years ago. Under the law of Utopia the deceased’s estate devolves to
a surviving son. Under the law of Urbania, a child under 16 cannot inherit and the
other two children would take jointly. By English law all children are entitled to
share the estate equally. Under the law of Urbania, intestate succession to property
is governed by the deceased’s lex patriae. Under the law of Utopia, it is governed by
the lex domicilii.
Advise the administrator of the estate on the distribution of Mr Jones’s assets.

Activities 12.1–12.3
12.1 In relation to wills, what issues of capacity arise?

12.2 In what circumstances may a will be formally valid?

12.3 How can a will be revoked?

Summary
Both testate and intestate succession to immovables are governed by the lex situs.
Formal validity is governed by the Wills Act 1963, and essential validity by the lex situs,
including its choice of law rules (so renvoi is used in this context).

Reminder of learning outcomes

By this stage you should be able to:
u explain the rules for administration of estates
u outline the main issues relating to intestate succession and to wills, including
capacity, formal validity, essential validity, construction and revocation.

12.3 Trusts: the Hague Convention rules

Core text
¢ Cheshire, North and Fawcett, pp.1382–96 (available on the VLE).

The Hague Convention applies to trusts created voluntarily and evidenced in writing
(Article 3), and not therefore to oral trusts. Common law principles apply to oral trusts:
these do not differ materially from those of the Convention. Trusts created by judicial
decision are included, not by the Convention, but by s.1(2) of the Recognition of Trusts
Act 1987. Accordingly, many constructive trusts are included, but not when such a trust
has been created by way of remedy.

A trust is defined (Article 2(1)) as ‘the legal relationship created – inter vivos or on death
– by a person, the settlor, when assets have been placed under the control of a trustee
for the benefit of a beneficiary or for a specified purpose’. (This therefore includes
charitable trusts.)
page 148 University of London

Preliminary issues
When the trust has been created by a voluntary testamentary or inter vivos trust, there
is an important preliminary issue – whether the instrument which creates the trust is
valid. Article 4 states that this question falls outside the Convention: the answer will
depend on the law governing wills (or, if there is a settlement, contracts). Whether the
assets have been validly and effectively transferred to the trustees is also a preliminary
issue. This will be determined by the lex situs.

Choice of law
The Hague Convention adopts the principle of party autonomy (Article 6). It provides
that a trust is governed by the law chosen by the settlor. This choice may be express
or implied from the terms of the instrument which creates, or the writing which
evidences, the trust, interpreted in the light of the circumstances of the case. There is
no guidance in the Convention on what is an implied choice. If no choice is made, the
applicable law is the law with which the trust is ‘most closely connected’. Chellaram
v Chellaram [1985] Ch 409 suggests that this is to be ascertained by reference or
particular to:

a. the place of administration designated by the settlor

b. the situs of the assets

c. the trustee’s place of residence or business

d. the objects of the trust and the places where these are to be fulfilled.

See also Iveagh v IRC [1954] Ch 364, where the settlor’s domicile was referred to. The
relative weight of these factors has still to be decided.

Renvoi is excluded by the Convention (Article 17).

The Convention allows for severability (Article 9). So, the construction of the terms of
a trust instrument might be governed by a law different from that which governs the
trust (e.g. the domicile) even if the settlor has not expressly stipulated this.

There are limits on freedom of choice:

u the choice must not be meaningless

u mandatory rules of the forum, mandatory rules of other countries applicable by

reason of the forum’s private international law rules, and the forum’s rules on
public policy may be applied, notwithstanding the choice of another applicable
law. Article 8 lists a range of matters governed by the applicable law. These include:

u appointment and removal of trustees

u rights and duties of trustees

u powers of investment of trustees

u liabilities of trustees to beneficiaries

u variation or termination of the trust

u duties of trustees to account for their administration.

Limitations on recognition
Article 11(1) provides that ‘a trust created in accordance with the law specified in the
Convention must be recognised as a trust’. There are limitations on recognition. By
Article 13, English courts need not recognise a trust if its significant elements are,
but for the choice of the applicable law, the place of administration and the habitual
residence of the trustee, more closely connected with a state or states which do not
have the institution of the trust or the category of trust involved. English courts may
continue to apply mandatory rules of English law, that is ‘provisions of the law of the
Conflict of laws  12  Succession and trusts page 149
forum which must be applied even to international situations’ (Article 16). You might
compare this definition with that in the Rome Convention (see Chapter 8). A possible
example is the rule against perpetuities. In addition, Article 15 of the Convention
provides that the Convention ‘does not prevent’ the English court applying provisions
in a law designated by its own conflicts rules in so far as such provisions cannot be
derogated from by voluntary act, relating to certain matters in particular. These are:

u the protection of minors and incapable persons

u the personal and proprietary effect of marriage

u succession rights, especially indefeasible shares of spouses and relatives

u transfer of title to property and security interests therein

u protection of creditors on an insolvency

u protection of third parties acting in good faith.

If recognition of a trust is thereby prevented, the court must try to give effect to the
objects of the trust by other means.

Article 18 provides the Convention’s provisions may be disregarded if their application

would be ‘manifestly incompatible’ with English public policy.

The jurisdiction or power to vary the terms of a foreign trust is unaffected by the Act.
This can be done under the Variation of Trusts Act 1958: see Re Ker’s Settlement [1963] Ch
553. In Re Paget’s Settlement, Cross J, however, did warn that where there are substantial
foreign elements involved, the court must consider carefully whether it is proper to
exercise the jurisdiction. Further, it can only vary such a trust if the law governing the
trust allows it to be varied (see Article 8(2)(h)).

Where an English settlement is concerned, s.1(1) of the 1958 Act allows the court to
approve an arrangement revoking the settlement and substituting for it a foreign
settlement and foreign trustees. They will not approve it if they do not think the
variation is proper, as in Re Weston’s Settlement [1969] 1 Ch 223 where the aim was to
avoid taxation.

Self-assessment questions
1. Does the Hague Convention apply to:

i. charitable trusts?

ii. constructive trusts?

iii. resulting trusts?

(You may find Hayton [1987] 36 ICLQ 260 useful.)

2. In what circumstances will a foreign trust be recognised?

3. In what circumstances may we refuse to recognise a foreign trust?

4. When will an English court vary an English settlement and a foreign trust?

Summary
The law on trusts is to be found in the Recognition of Trusts Act 1987. Despite its name
this deals with choice of law as well. The underlying principle of this is party autonomy.
There are limitations on recognition, which are set out above.

Reminder of learning outcomes

By this stage you should be able to:
u state the choice of law and recognition rules for trusts
u state the law on variation of trusts.
page 150 University of London

Sample examination questions

Question 1 Mrs Smith who is domiciled in England makes a will leaving her
property to her sister. Ten years later she moves to the Netherlands and acquires
a domicile there. She has recently died leaving a large bank account in a branch of
NatWest bank in London and a house in the Netherlands. Her husband wishes to
†
contest the will in England. Advise him.† For Question 1 you should
read Re Groos (1915) 1 Ch 572.
Question 2 Should we abandon the principle of scission? If so, what rule should we
substitute in its place?† †
For Question 2 you should
first explain scission. Then
try to think of problems
Reflect and review that applying one law might
cause. Which would it be?
Look through the points listed below. Are you ready to move on to the next chapter?
Would it have to be one of
Ready to move on = I am satisfied that I have sufficient understanding of the principles the existing choice of law
outlined in this chapter to enable me to go on to the next chapter. rules?

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can explain the rules for administration of estates

  
I can outline the main issues relating to intestate
succession and to wills, including capacity, formal
validity, essential validity, construction and   
revocation

I can state the choice of law and recognition rules for

trusts   

I can state the law on variation of trusts.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

12.1 Succession  

12.2 The EU Succession Regulation (Brussels IV)  

12.3 Trusts: the Hague Convention rules  

13 Marriage and other adult relationships
and the status of children

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

13.1 Formal validity of marriage . . . . . . . . . . . . . . . . . . . . . . . 153

13.2 Essential validity of marriage . . . . . . . . . . . . . . . . . . . . . . 155

13.3 Polygamous marriage . . . . . . . . . . . . . . . . . . . . . . . . . . 157

13.4 Same-sex marriages . . . . . . . . . . . . . . . . . . . . . . . . . . 161

13.5 Legitimacy of children . . . . . . . . . . . . . . . . . . . . . . . . . 162

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

page 152 University of London

Introduction
This chapter investigates the conflict of laws rules to determine whether a marriage
is valid or not. There are many reasons why a marriage may not be valid, such as
failure to comply with formal requirements, being under age, or the parties not being
respectively a man and a woman. For choice of law purposes, rules about the validity
of marriage are divided into those concerned with formal validity and essential validity
(the substance of the marriage relationship itself).

The choice of law rule for formal validity is the lex loci celebrationis. The choice of law
rule for essential validity is the personal law of the parties at the time of celebration of
the marriage.

The final section of this chapter (Section 13.5) considers questions relating to the
status of children, in particular legitimacy and legitimation.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u state the conflict rules that apply to matters of (a) formal and (b) essential
validity in respect of marriage
u explain how English law responds to polygamous marriages, and to civil
partnerships and cohabitation
u explain who can marry in a polygamous form, and when
u state the rules governing legitimacy and legitimation
u explain the circumstances in which foreign legitimations will be recognised by
an English court.

core text
¢ Clarkson and Hill, Chapter 7 ‘Marriage’.

ESSENTIAL READING
¢ Hartley, T. ‘The policy basis of the English conflict of lawS of marriage’ (1972) 35
MLR 571 (available in HeinOnline and JSTOR via the Online Library).
Conflict of laws  13  Marriage and other adult relationships and the status of children page 153

13.1 Formal validity of marriage

13.1.1 The Lex loci celebrationis rule

Although it will (or should) be obvious what matters are formal and what essential,
systems of law differ and questions of characterisation therefore arise (see the
discussion of Ogden v Ogden in Chapter 2). Problems have arisen in particular in relation
to proxy marriages and parental consent.

Proxy marriages
English law requires the parties to be present at the ceremony. Some other systems
(mainly in South America) allow for proxy marriages. In Apt v Apt [1948] P 83 we
classified the requirement of presence (according to the lex fori) as relating to the
method of giving consent, not the fact of consent. Had it been classified as the latter
it would have been an issue of essential validity. By classifying it as relating to method
of giving consent, it was an issue of formal validity, and therefore governed by the
lex loci celebrationis. This was Argentinian law, by which the marriage (between an
English domiciliary and an Argentinian domiciliary) was valid. See also Pazpena de Vira
v Pazpena de Vira [2001] 1 FLR 460 (proxy marriage in Uruguay). An even more striking
example is McCabe v McCabe [1994] 1 FCR 257 in which an English court upheld the
formal validity of a marriage in Ghana under customary law where neither spouse was
present (they were both in England).

Parental consent
English law requires parental consent for 16 and 17 year olds, but a marriage without
consent is valid (we regard it as an issue of form, not capacity). As we saw in Chapter 2,
we also characterise foreign rules relating to parental consent as an issue relating to
form (Ogden v Ogden [1908] P 46). Thus, a marriage in England between an English-
domiciled woman and an under-age French national domiciled in France is valid
because it is formally valid by the lex loci celebrationis. See also Lodge v Lodge [1963] 107
Sol Jo 437.

There is hardly a rule of conflict of laws more firmly entrenched than that which says
that the formal validity of marriage is governed by the lex loci celebrationis. So, in
Berthiaume v Dastous [1930] AC 79 a couple who were domiciled in Quebec married
in a Roman Catholic church in France. French law requires a civil ceremony. It was
irrelevant that Quebec law did not. The marriage was void. In McCabe v McCabe [1994] 1
FLR 410, a marriage between an Irish domiciliary and a Ghanaian one according to Akan
custom in Ghana – which seemed to require that the groom provided gin, but not his
physical presence – was formally valid because it satisfied Ghanaian law, the lex loci
celebrationis.

This rule extends even to retrospective validation by the lex loci celebrationis of a
marriage originally void under that law. See Starkowski v A-G [1954] AC 155: a marriage
of two Poles in Vienna, void at the time but retrospectively validated by legislation,
was held by the House of Lords five years later to be a valid marriage, even though
the parties were now domiciled in England and the wife had remarried in Croydon.
The effect of the decision was to hold the child of the first marriage legitimate and
to bastardise the child of the second marriage. The case raises interesting questions
including what the court would have held had the second marriage preceded the
validation. Would this retrospectively invalidate the second marriage? Another
interesting question is what an English court would say to foreign legislation which
retrospectively invalidated valid marriages. (This happened in Spain after the 1930s
civil war.) We may assume that an English court would refuse to recognise such
legislation on public policy grounds.
page 154 University of London

13.1.2 Exceptions
There are common law and statutory exceptions to the lex loci celebrationis rule. The
statutory exceptions – the details of which you need not know – apply to consular
marriages and military marriages.

Common law exceptions

There are three common law exceptions (this is the correct use of the well-known
but usually incorrectly used ‘common law marriage’†). A common law marriage is †
The term ‘common law
one which complies with the English common law as it stood in 1753. There are three marriage’ is often used
situations today in which common law marriages may be regarded as formally valid: inaccurately to describe the
situation of an unmarried
u where English common law applies
couple living together as man
u where there is insuperable difficulty in complying with the local law and wife. Such ‘marriages’ are
not recognised in law, though
u where there is belligerent occupation. cohabitants increasingly
The first two examples can be discussed briefly. The English common law will apply benefit from the same legal
where the Crown exercises extraterritorial jurisdiction over British subjects. There are protections as married
couples. See the Family law
no surviving examples of this: the case of Wolfenden v Wolfenden [1946] P 61 illustrates
module guide, Chapter 8.
this (the marriage was in Hupeh in China). This is not a true exception since the
common law is deemed to be the local law for British subjects. Secondly, where there
is insuperable difficulty complying with the local law (e.g. because only polygamous
marriage is available).

The third exception is more significant and led to a lot of case law in the 1950s and 1960s.
Oddly, the common law marriage doctrine was extended to marriages celebrated by
members of occupying forces in Germany and Italy in the aftermath of the Second World
War. The leading case is Taczanowska v Taczonowski [1957] P 301. Two Polish domiciliaries
married in Italy without complying with local Italian formalities. The marriage was upheld
as a valid common law marriage. The husband was a member of the Polish occupying
forces. The rationale of the locus regit actum principle was said to be the presumption
that parties marrying in a country submit themselves to its law, a presumption deemed
inapplicable where a conqueror was involved. Clarkson and Hill (p.353) describe the
decision as ‘extraordinary’ and prefers the Australian approach (see Savenis v Savenis
[1950] SASR 309) which allows circumvention of the general rule only where there is an
‘insuperable difficulty’. An obvious riposte to the English court is why, if the presumption
was rebutted, was the spouses’ personal law (Polish law) not applied. The parties had
no connection with England, and certainly none with English common law pre-1753.
Taczanowska has been followed many times. And in Merker v Merker [1963] P 283 an
attempt was made to explain it differently. An army of occupation or ‘an organised body
of escaped prisoners of war’ formed an ‘enclave’ within which it was unreasonable to
apply the local law. But why just ‘escaped’ prisoners of war? What about concentration
camp inmates? And why apply pre-1753 English law? The law is most unsatisfactory.

We have constantly referred to the lex loci celebrationis. Does this mean the domestic
law of the relevant country or all of its law including its conflict of laws rules? In other
words, does renvoi apply? In Taczanowska v Taczanowski it was accepted that this was
an area where renvoi had a part to play. The court said Italian law would refer to the
parties’ lex patriae (Poland) and that if the marriage was formally valid by Polish law, it
would be valid in English eyes too. In fact this was irrelevant because the marriage was
not valid according to Polish law. There is a good discussion of the renvoi question in
Clarkson and Hill, pp.34–43.

Summary
Questions of formal validity are governed by the lex loci celebrationis. So well-
established is this rule, that even a marriage that is formally invalid will be regarded
as valid if retrospectively validated. Characterisation questions arise. English law
characterises questions of parental consent and issues relating to the validity of a
proxy marriage as matters of formal validity. There are some exceptions to the locus
regit actum rule, in particular the so-called common-law marriage.
Conflict of laws  13  Marriage and other adult relationships and the status of children page 155

13.2 Essential validity of marriage

We turn now to questions of essential validity. This is sometimes called ‘capacity’ but
essential capacity goes beyond conventional capacity questions. For essential validity
it is the personal law which is important. The lex loci celebrationis plays a minor role
only. Were it to be the governing law, it would be possible to escape a restriction by
marrying where it didn’t apply, for example to enter into a same-sex marriage, where
this is allowed (e.g. in the Netherlands, Canada and Spain).

There are a number of suggestions as to what ‘personal law’ should mean in this
context:

u domicile (of both): the dual domicile doctrine

u the intended matrimonial home

u real and substantial connection

u an alternative reference test

u either party’s domicile

u a variable rule.

We will now consider each of these models.

13.2.1 Dual domicile

Both case law and juristic argument largely support the dual domicile test. According
to this, the law of each party’s domicile at the date of the marriage has to be
considered. If either party lacks capacity by the law of his/her domicile, the marriage
is void. Thus, if two 15 year olds marry in Paraguay and one of them is domiciled
in England (where you have to be 16 to get married) and the other is domiciled
in Paraguay (where the minimum age for marriage is 14 for boys and 12 for girls),
the marriage will be void. The dual domicile doctrine has much to commend it. It
fits in with reasonable expectations. It is relatively easy to apply. It is however not
particularly appropriate where a couple marry prior to emigrating: there is a case for
the law of their new home governing the validity of their relationship.

13.2.2 Intended matrimonial home

The intended matrimonial home doctrine was strongly advocated by Cheshire. In
fact (and rather deceptively) this doctrine offers a basic presumption in favour of the
law of the country in which the husband is domiciled at the date of the marriage. The
presumption can be rebutted if at the time of the marriage the parties intended to
establish their matrimonial home somewhere else, and did so within a reasonable
time. Cheshire formulated the doctrine at a time when (i) if a couple had different
domiciles, they were likely to make their home where the man lived, and (ii) on
marriage the woman took his domicile as a domicile of dependency. Today, if there is to
be a presumption it would be in favour of dual domicile (see below). The question then
is whether it should ever be displaced in favour of ‘home’, and whether a ‘proper law’
concept has any place here. The case for the intended matrimonial home is strongest
where ties are immediately severed and a couple emigrate. But the doctrine can
only be applied retrospectively. Suppose the boat sinks and it becomes important to
determine validity of marriage for a succession question? Or suppose they change their
mind: they don’t move (war has broken out, one of them has become ill) or they move
twice or three times – is the validity of the marriage to be constantly re-assessed? It is
also an argument against the intended matrimonial home doctrine that it would lead
to some uncomfortable conclusions. (Suppose you take your 13-year-old daughter on
holiday and she falls in love with a local waiter and marries him intending to spend the
rest of her life there.) Or conversely – and much more commonly – a 13 year old from
Northern Nigeria marries there and intends to come to live in England. On the intended
matrimonial home doctrine the first marriage is valid and the second is invalidated by
their emigration. And, of course, there are problems of proof and interpretation. What
page 156 University of London
is meant by ‘intended’? How soon does the intention have to be put into effect? How
long does one have to live in the new country? We clearly cannot stipulate a time but
do they have to acquire (or intend to acquire) a domicile there? The doctrine may be
thought to inject too much uncertainty into the law.

13.2.3 Real and substantial connection

Another view with a little judicial support and some among the academic writers is
that the essential validity of marriage should be governed by the law of the country
with which the marriage has its most real and substantial connection. This will, of
course, normally be the country where the matrimonial home is. It enables factors like
domicile and nationality to be taken into account too. The test was formulated by Lord
Simon in Vervaeke v Smith [1983] 1 AC 145 (see Chapter 7). He said it should be applied
at least to ‘the question of the sort of quintessential validity in issue in this appeal,
the question of which law’s public policy should determine the validity of marriage’
(p.166) (English law said the marriage of convenience was a valid marriage; Belgian
law said it wasn’t). But which questions are included? All prohibitions on marriage
are statements of public policy. Are they all therefore ‘quintessential’? The test has
its supporters (e.g. Fentiman [1985] CLJ 256) but it question-begs: it does not answer
the problem, but rather restates the question. It is vague and unpredictable. It would
introduce undue uncertainty into the law.

13.2.4 Alternative reference test

There is some support for an alternative reference test (i.e. a marriage would be valid
if it is so regarded either by the dual domicile test or the intended matrimonial home
doctrine). The Law Commission rejected this (see Working Paper No. 89, para.3.20)
and Jaffey (p.330) describes it as ‘an abdication of the quest for a rational choice of law
rule’. It has support in Lawrence v Lawrence [1985] 1 All ER 506.

Another posited test is that a marriage should be regarded as essentially valid if

it is valid under either party’s ante-nuptial domiciliary law. Under this ‘rule’ more
marriages would be valid. But there is nothing else to commend it. As the Law
Commission noted (Working Paper No. 89, para.3.38) it ‘would enable a party to evade
the requirements of his domiciliary law and would also lead to limping relationships’.

13.2.5 A variable rule?

But why a single rule? In Radwan v Radwan (No.2) [1973] Fam 35, Cumming-Bruce J said:

It is arguable that it is an over-simplification of the common law to assume that the name test
for purposes of choice of law applies to every kind of incapacity – non-age, affinity, prohibition
of monogamous contract by virtue of an existing spouse, and capacity for polygamy. Different
public and social factors are relevant to each of these types of incapacity (p.51).

Cheshire, North and Fawcett (p.923) are scathing: this would lead to ‘uncertainty, anarchy
and ultimately injustice’. Clarkson and Hill (p.362), by contrast, say that it has ‘much
to commend it’, pinpointing the different social and policy factors underlying each
incapacity and explaining how it fits with an ‘interest’ analysis (see p.364). Looked at in
this way, the prohibition on polygamy might be referred to the intended matrimonial
home doctrine (as it was in Radwan v Radwan) and that on minimum age for marriage,
there to protect minors from improvident marriages, to that person’s personal law.† †
There is a lot of literature
on this subject. You might
An exception consult Hartley (1972) 35 MLR
571, Jaffey (1982) 2 Ox JLS 368
Whatever the choice of law rule, there is an exception. If the marriage is celebrated in
and Davie (1994) 23 Anglo-Am
England, and one party is domiciled in England at the time of the marriage, the validity
L Rev 32.
of the marriage is governed by English law. Any invalidity under the law of the foreign
domicile of the other party is ignored. This exception was laid down in Sottomayor v
de Barros (No.2) [1879] 5 PD 94 (a marriage in England between first cousins, H being
domiciled in England and W in Portugal whose law prohibited such marriages).
Cheshire, North and Fawcett (p.919) describe the exception as ‘xenophobic’. It is
defended in Clarkson and Hill (p.365):
Conflict of laws  13  Marriage and other adult relationships and the status of children page 157
Inevitably, the lex fori will adopt a role of protecting English interests, values and
institutions… Marriages contracted in England have a greater potential impact in England
than marriages contracted abroad and, accordingly, there is greater interest in ensuring
conformity to the standards of English law.

The Law Commission has recommended the exception be abolished (Working Paper
No. 89, paras 3.46–3.48).

Public policy issues

Does the lex loci celebrationis have a role to play in determining essential validity? It
was assumed in Breen v Breen [1964] P 144 that a marriage must be valid by the law of
the country of celebration. The decision is universally criticised, and there is authority
in Australia (Re Swan’s Will [1871] 2 VLR (IE & M) 47) and Canada (Reed v Reed [1969] 6 DLR
(3d) 617) the other way. Of course, when the marriage takes place in England we do
expect English law’s rules to be satisfied: we wouldn’t allow a 13 year old to marry in
England. This is discussed further by Clarkson [1990] 10 LS 80.

When a foreign domiciliary law governs the capacity of the parties to a marriage, it
will not be recognised if it is repugnant to public policy. This discretion is exercised
sparingly. Thus, in Cheni v Cheni [1965] P 85, a marriage celebrated in Cairo between an
uncle and a niece, both domiciled in Egypt, was held to be valid. Reasonable tolerance
had to be shown. Marriages between uncle and niece were accepted in Jewish law
(the couple were Jewish) and by many Christian churches. It would therefore be
unjustifiable to stigmatise as unconscionable a capacity acceptable ‘to many people of
deep religious convictions, lofty ethical standards and high civilisation’ (ibid., p.99).

Renvoi
Does renvoi have a part to play in questions of essential validity? There is a decision
which says so: R v Brentwood Superintendent Registrar of Marriages, ex p. Arias [1968] 2 QB
956. There are good reasons for excluding renvoi in this area of law (see Clarkson and
Hill, pp.42–43).

Summary
Essential validity of marriage is governed by the personal law. Both case law and juristic
argument largely support the dual domicile test. But other tests have been advocated.
Cheshire was a strong supporter of the ‘intended matrimonial home’ doctrine. Whatever
the test, there is unlikely to be more than a minor role for the lex loci celebrationis (though
the significance of Sottomayor v de Barros cannot be underestimated). Nor can public
policy be entirely ignored, though it is used most sparingly.

13.3 Polygamous marriage

13.3.1 Definition
In 1866 Lord Penzance defined ‘marriage, as understood in Christendom… as the
voluntary union for life of one man and one woman to the exclusion of all others’
(Hyde v Hyde [1866] LR 1 P&D 130). He held that a marriage he assumed to be potentially
polygamous could not be dissolved because the matrimonial laws of England are
wholly inapplicable to polygamy. Parties to a polygamous marriage were ‘not entitled
to the remedies, the adjudication, or the relief of the matrimonial law of England’
(ibid., p.138). Although much has changed since 1866, there remain interesting issues
relating to polygamous marriages. These will now be considered.

First, by what law is it determined whether a marriage is monogamous or

polygamous? This has never been finally determined but there is sound argument for
holding that the lex loci celebrationis should determine the nature and incidents of
the marriage according to its own view, but then the forum should classify. This view
was taken in Lee v Lau [1967] P 14. This involved a marriage in Hong Kong in which the
husband, under Chinese customary law, could take ‘tsipsis’ (concubines or secondary
page 158 University of London
wives). This was held to be a potentially polygamous marriage. Cheshire, North
and Fawcett (p.931), by contrast, argue that the nature of the marriage should be
determined by the lex domicilii. You may consult M v M [2001] 2 FLR 6 as an illustration
of the problem.

13.3.2 Can the nature of a marriage change?

We must consider mutability both from polygamy to monogamy, and monogamy to
polygamy. A marriage which is potentially polygamous may subsequently become
monogamous as a result of some event or a change in the law. Thus, in Cheni v
Cheni [1965] P 85 the birth of a child had rendered the marriage monogamous; in
Ali v Ali [1968] P 564, the acquisition of a domicile in England changed a potentially
polygamous marriage into a monogamous one; in Parkasho v Singh [1968] P 233, a
change in Indian law, which prevented the husband marrying further wives, rendered
the marriage monogamous in the eyes of English law. A marriage which is in fact
polygamous cannot be changed to a monogamous one, for example by a change of
domicile of one or both of the wives (see Re Sehota [1978] 3 All ER 385).

But can a monogamous marriage become a polygamous one? Consider the facts of A-G
of Ceylon v Reid [1965] AC 720. Alan married Edna monogamously (in a Roman Catholic
church). Then 26 years later he converted to Islam and married Fatima. It was held that his
second marriage was a valid polygamous one, so he couldn’t be convicted of bigamy. So
Alan had two wives and was validly married to both. But what is the effect of the second
marriage on the first? Is it monogamous or has it been converted into a polygamous one
by Alan’s change of religion? In Reid’s case, it was accepted that from Alan’s perspective
he was married to Fatima, from Edna’s he was committing adultery with her. In other
words, Alan was married polygamously, and Edna was married monogamously. Any other
conclusion would be unfair to the first wife: her rights as a monogamous wife must be
protected. For another example, see Nabi v Heaton [1981] 1 WLR 1052.

13.3.3 Capacity to marry polygamously

The most important question relating to polygamy today concerns capacity to
contract a polygamous marriage. By what law is this governed? The lex loci celebrationis
can be ruled out, though it has some support in Canadian decisions. The choice
then lies between the law of the domicile and the law of the intended matrimonial
home. Support for the lex domicilii may be found in well-entrenched authorities
and Parliament has certainly legislated on the assumption that domicile is the test.
However, in Radwan v Radwan (No.2) [1973] Fam 35, Cumming-Bruce J applied the
intended matrimonial home doctrine. When the facts of this case are read it is obvious
why. The marriage concerned Abdul, an Egyptian domiciled in Egypt, already married
to Iqbal, and Mary, a girl from Yorkshire who was domiciled in England. They married
in the Egyptian Consulate in Paris (public international lawyers will be astonished to
discover that the judge held this to be France!) and settled in Egypt. They left after
the 1956 Suez affair, having spent five years in Egypt, and moved to England where
Abdul – after changing his name to Jean-Pierre – acquired a domicile. They lived in
England for 14 years. Nearly 20 years into marriage and with nine children, Jean-Pierre
purported to divorce Mary by talaq (talaq is discussed in Chapter 14). He did this at the
UAR† embassy. Cumming-Bruce J held this to be England and a talaq in England cannot †
UAR: Egypt was a
dissolve a marriage. When Mary responded by petitioning for divorce, Jean-Pierre constituent part of the short-
claimed he and Mary were not married because she lacked the capacity to enter into lived United Arab Republic.
a polygamous marriage. Apply her lex domicilii and this is the conclusion to which you
would come. But invoke the intended matrimonial home doctrine and you can save
the marriage, grant a divorce and make the necessary ancillary orders. You cannot
really blame Cumming-Bruce J, but hard cases can make bad law. This decision has, not
surprisingly, attracted a lot of criticism (e.g. Wade [1973] 22 ICLQ 571, Karsten [1973] 36
MLR 291 and Cheshire, North and Fawcett, (pp.936–37)). It also has some support (see
Clarkson and Hill [1978] 41 MLR 38 and Clarkson and Hill, p.400).
Conflict of laws  13  Marriage and other adult relationships and the status of children page 159

13.3.4 Statutory provisions

Since Radwan Parliament has enacted a number of statutory provisions. In 1973 it
passed Sections 11 and 14 of the Matrimonial Causes Act. Section 11(d) states a marriage
is void

in the case of a polygamous marriage entered into outside England and Wales [if] either
party was at the time of the marriage domiciled in England and Wales.

This provision has to be read with s.14(1), the effect of which is that s.11 does not apply
if the validity of the marriage is to be determined by a foreign law. So, s.11(d) is not a
conflicts rule but a rule of English domestic law. If Radwan is wrong and is not followed
a polygamous marriage entered into outside England by a party domiciled in England
is void. But if Radwan is applied and the intended matrimonial home is a country
where polygamy is the norm (e.g. Saudi Arabia) then the validity of the polygamous
marriage is determined by Saudi Arabian law. If, however, the intended matrimonial
home was, for example, Germany, the marriage would be void. In other words, if
Radwan is correct and capacity to enter a polygamous marriage is governed by the
law of the intended matrimonial home, this choice of law rule survives s.11(d). (As to
whether this question should be so governed see Section 13.2.2 above.)

Before we can look at the second statutory provision, we must appreciate a rather
more serious concern than the sort that arose in Radwan. This was that of the
immigrant (or immigrant’s child) domiciled in England who returned to, say, Pakistan
and married there in polygamous form, never intending polygamy and probably
oblivious to the implications of s.11(d). Hussain v Hussain [1983] Fam 26 illustrates this.
The husband was domiciled in England but he married in Pakistan in polygamous
form. When the marriage broke down, the wife petitioned in England for judicial
separation. The husband argued that the marriage was void by virtue of s.11(d). The
Court of Appeal disagreed. It was valid because an English domiciliary cannot enter
a polygamous marriage and ‘a marriage can only be potentially polygamous if at
least one of the spouses has the capacity to marry a second spouse’ (ibid., p.32). In
the case of a person domiciled in England, there was no capacity to enter an actually
polygamous marriage because s.11(b) rendered a person who is actually married
incapable of marrying a second spouse. This decision would save immigrants’ marriage
from the taint of s.11(d), but only if it was the man who was the English domiciliary.
If a woman domiciled in England were to marry in Pakistan a man with a Pakistani
domicile in polygamous form, he could take further wives, and so the marriage
(in English eyes) would be void. To solve this, s.11 has been amended (see Private
International Law (Miscellaneous Provisions) Act 1995 Sch.1 para.2(2)) so as to limit its
operation to actually polygamous marriages. And s.5 of the 1995 Act now provides that

A marriage entered into outside England and Wales between parties neither of whom is
already married is not void under the law of England and Wales on the ground that it is
entered into under a law which permits polygamy and that either party is domiciled in
England and Wales.

This goes further than Hussain v Hussain and will ensure that marriages in polygamous
form are valid even where the English domiciliary is the wife. The Act only preserves
potentially polygamous marriages from s.11(d), not actually polygamous ones. And
it has retrospective effect (so a marriage before the commencement of the Act is
validated by the Act).

Effects of recognition of polygamous marriages

Where once a polygamous marriage was not recognised at all, today it is recognised
for almost all purposes. Since 1972, it has been possible to secure matrimonial relief,
overruling Hyde v Hyde (see above). A polygamous marriage is recognised so as to render
void a subsequent monogamous marriage: see Baindail v Baindail [1946] P 122. The
children of a polygamous marriage are legitimate (Sinha Peerage Claim [1946] 1 All ER 348),
and are entitled to succeed to all property in England with the possible exception of
entailed interests and titles of honour that devolve with property: see Bamgbose v Daniel
page 160 University of London
[1955] AC 107. Spouses qualify as such for succession purposes: see Coleman v Shang [1961]
AC 481. A polygamous wife qualifies as the wife of the deceased under the Inheritance
(Provision for Family and Dependants) Act 1975. So in Re Sehota [1978] 3 All ER 385, where
a husband left his estate to W2, the court made an order for provision to be made to W1.
Polygamously-married wives are recognised under income tax legislation (see Nabi v
Heaton [1983] 1 WLR 626). There are some exceptions: for example, polygamous spouses
are denied rights to a widow’s pension under the state pension scheme: R v Dept of Health
ex p Misra [1996] 1 FLR 129, and polygamous marriages are largely denied recognition for
immigration purposes if there is another wife who is, or since the marriage has been, in
the UK (Immigration Act 1988 s.2(2)). However, polygamous marriages are recognised for
the purposes of deportation (Immigration Act 1971 s.5(4), as amended).

Summary
Although polygamous marriages are recognised for most purposes now, a number of
issues remain. By what law is it determined when a marriage is polygamous? There
are arguments supporting a combination of the lex loci celebrationis and lex fori and
others supporting the lex domicilii. Can the nature of a marriage change? This causes
greater problems when the change is from monogamy to polygamy. Perhaps the
most important question concerns capacity to marry polygamously. The question is
most acute when someone with an English domicile marries in polygamous form in a
country where polygamy is permitted.

Reminder of learning outcomes

By this stage you should be able to:
u state the conflict rules that apply to matters of (a) formal and (b) essential
validity in respect of marriage
u explain how English law responds to polygamous marriages, and to civil
partnerships and cohabitation
u explain who can marry in a polygamous form, and when.

Activities 13.1–13.4
13.1 What are the exceptions to the lex loci celebrationis rule?

13.2 Why does the lex loci celebrationis rule play a minor role in issues of essential
validity?

13.3 What is the law that governs the capacity to contract a polygamous marriage?

13.4 Is a polygamous marriage recognised?

Self-assessment questions
1. Mrs Jones, who is domiciled in England, is concerned about the marital status of
her three daughters, all of whom have domiciles of origin in England.

i. Kylie, when aged 20, took a short-term secretarial job in Dubai. While
there she married Abdul, who is domiciled in Dubai. The ceremony was
in polygamous form. She is back in England, having discovered that Abdul
already had two wives, and is living with her English-domiciled boyfriend,
Tony. She wishes to marry Tony.

ii. Lauren, when 19, went as a nurse to war-torn Bosnia. Whilst there she went
through a marriage with Fritz, a Swiss national, who was serving with the
peace-keeping forces. The ceremony was not recognised by the law in Bosnia
which required a civil registration. The ceremony was performed by a soldier
who is a lay preacher in his church in Sweden.

iii. Michelle, when 17, married Maurice in a register office in England. Maurice was
also 17 and by French personal law his parents’ consent was required before he
†
In Question 1 identify the
could marry. He did not have this consent. Michelle has heard that the court in
issues raised. Do they relate
France recently annulled the marriage on the ground of absence of parental
to formal validity or essential
consent. Michelle is eager to marry John, who is domiciled in England.
validity? Is any issue of
Advise Mrs Jones.† characterisation involved?
Conflict of laws  13  Marriage and other adult relationships and the status of children page 161
2. What is the case for and against referring capacity to marry to the law of the †
For Question 2 see the
intended matrimonial home?†
evaluation in Cheshire, North
3. Are the following valid marriages according to English conflict of laws rules?† and Fawcett pp.724–31.

i. a marriage between an English domiciliary and a woman domiciled in †

Question 3: Pay attention to
X, valid at the time of the ceremony, but subsequently invalidated by a the public policy questions in
Presidential decree in X which invalidates all marriages between citizens of X each of these problems. Do
and foreigners. you think it appropriate to
invoke public policy? Explain.
ii. A marriage in Y between two domiciliaries of Y. He is 21 and she is 11. The
minimum age for marriage in Y is 10 for girls. The police in London want to
prosecute him for unlawful sexual intercourse with a girl under 16. You might
consult Mohamed v Knott [1969] 1 QB 1.

iii. A marriage in England between a man and his daughter-in-law (his wife
having died) which is valid in England but not allowed by the law of Z, where
the daughter-in-law is domiciled.
†
4. Was Radwan v Radwan (No.2) rightly decided?† There are differing views on
Radwan. Read I. Karsten [1973]
5. Explain when someone who is domiciled in England and Wales may: 36 MLR 291 for the view that
i. marry polygamously it is wrong; A. Jaffey [1978] 41
MLR 38 defends the decision.
ii. marry monogamously by going through a polygamous ceremony.

13.4 Same-sex marriages

Until recently, English law required parties to a marriage to be respectively male
and female. If they were not, the marriage was void. This was also the law elsewhere
but now an increasing number of countries are permitting same-sex marriages and
the United Kingdom became one of them as a result of the introduction of the the
Marriage (Same Sex Couples) 2013. The Act is to an extent the evolution of the Civil
Partnership Act 2004 and it makes the marriage of same sex couples lawful in England
and Wales. The Act does not extend to Scotland or Northern Ireland. Scotland has
passed the Marriage and Civil Partnership (Scotland) Bill, which provides for same-sex
marriage and Northern Ireland has no plans to introduce legislation for same-sex
marriage.

The Marriage (Same Sex Couples) Act 2013 was passed on 17 July 2013 and the
first marriages of same sex couples took place on Saturday 29 March 2014. As a
consequence of the Act coming into force:

u same sex couples can marry in civil ceremonies;

u same sex couples who were married abroad under foreign law and who were
consequently treated as civil partners in England and Wales are now recognised as
being married in England & Wales;

u religious organisations and their representatives are shielded from successful legal
challenge if they do not wish to marry same sex couples;

u civil partners can convert their partnership to a marriage, if they wish; and
individuals can change their legal gender without having to end their marriage.

In particular:

u According to s.1, the marriage of same-sex couples is lawful.

u Pursuant to s.11 (1), in the law of England and Wales, marriage has the same effect in
relation to same-sex couples as it has in relation to opposite-sex couples.

u Additionally, according to s.11 (2), the laws of England and Wales (including all
England and Wales legislation whenever passed or made) has effect in accordance
with subsection (1).

Some differences between same-sex and opposite-sex marriages still remain:

page 162 University of London
u religious same-sex marriages are possible if the religious organisation ‘opts in’ by
giving explicit consent to marriages of same-sex couples. Clergy from the Church
of England and the Church in Wales are prohibited from performing a same-sex
marriage;

u adultery is not a reason for divorce;

u nullity on the basis of non-consummation is not available as a ground for divorce in

same-sex marriages;

u pension providers need only provide for survivor/widow’s benefits in respect of

contributions from 5 December 2005, i.e. the date of implementation of the Civil
Partnership Act 2004.

The Act provides for conversion of civil partnerships to marriage. That procedure
became available from December 2014.

When it comes to the recognition of overseas marriages, s.10 states that an overseas
marriage is not prevented from being recognised simply because it is the marriage
of a same-sex couple. As the Act does not impose requirements for recognition,
whether an overseas same-sex marriage will be recognised or not will depend on
the usual rules of private international law. Therefore, the marriage must have been
properly performed under the laws applicable in the country of celebration; and both
the parties to the marriage must have had capacity to marry each other under their
‘personal’ law. This rule is modified for marriages that take place in England and Wales
to the extent that only one of the couple need have capacity in accordance with the
law of their domicile.

The Act also requires reviews to be conducted to consider three issues:

u whether belief organisations should be able to conduct legally valid marriage

ceremonies;

u the operation and future of the Civil Partnership Act 2004 in England and Wales;
and

u relevant differences in survivor benefits offered by occupational pension schemes.

13.5 Legitimacy of children

While the concept of illegitimacy has very little relevance in English law today, there
are situations in which it is necessary to determine whether a child is legitimate:
for example, succession under a will, whether English or foreign, may be expressly
restricted to legitimate children.

By what law is it decided whether a child is legitimate? The most obvious approach
would be to look to personal law (in English law the lex domicilii). But you will recall
(see Chapter 3) that domicile of origin depends upon whether you are legitimate
or not. If legitimate, you take your father’s domicile of origin; if illegitimate, your
mother’s. There is thus a vicious circle. How can this be broken out of? One answer –
albeit a most arbitrary and sexist one – is to say that legitimacy is governed by the law
of the father’s domicile at the date of birth.

But this is to reckon without the leading (and troubling) case of Shaw v Gould [1868] LR
3 HL 55. This holds that legitimacy depends on the validity of the parents’ marriage: a
child is legitimate only if born in lawful wedlock. But, as Cheshire, North and Fawcett point
out (p.1196) ‘the issue [is] the status of the children, not of their parents’. You can read a
very detailed account of the case in Cheshire, North and Fawcett, pp.1195­–97. A different
approach was taken by the High Court in Re Bischoffsheim [1948] Ch 79. It was held that
a child was legitimate where he was legitimate by the domicile of both of his parents,
even though the marriage was not valid under English law. This approach was followed
in Motala v A-G [1990] 2 FLR 261, where in the context of claims to British citizenship, the
children of a void marriage in Northern Rhodesia were held legitimate because they were
legitimate by the law of India, the country in which they had their domicile of origin and
where both their parents were domiciled. Where parents have different domiciles, it is
Conflict of laws  13  Marriage and other adult relationships and the status of children page 163
possible for a child’s legitimacy to be determined by reference to the father’s domicile
alone: see Hashmi v Hashmi [1972] Fam 36. Cheshire, North and Fawcett argue that Shaw
v Gould should be restricted to the exceptional circumstances of the case and that Re
Bischoffsheim and cases on legitimation (see below) justify the proposition that a person is
legitimate if he is so according to the law of his father’s domicile at the time of his birth.

Foreign legitimations
A foreign legitimation by subsequent marriage will be recognised where the father is
domiciled in the foreign country at the time of the marriage (see Legitimacy Act 1976
s.2). There is no need to refer to his domicile at the time of the child’s birth.

Some countries have provision for legitimation other than by subsequent marriage
(e.g. by parental acknowledgment: see the facts of Re Luck’s Settlement Trust [1940]
Ch 864). The 1976 Act makes no provision for the recognition of such legitimations. In
Re Luck, the Court of Appeal held, by analogy with the common law rule dealing with
the recognition of legitimation, that such a legitimation can be recognised only if it is
effective by the law of the father’s domicile at the date of the child’s birth as well as at
the date of the acknowledgement.

Self-assessment questions
1. Why is the decision of Shaw v Gould so universally criticised? Can it be reconciled
with Re Bischoffsheim?

2. What is the rule governing legitimacy? Is it satisfactory?

Reminder of learning outcomes

By this stage you should be able to:
u state the rules governing legitimacy and legitimation
u explain the circumstances in which foreign legitimations will be recognised by
an English court.

Sample examination questions

Question 1 Ann marries Jim in a church in London. Ten years later Jim becomes a
Muslim and marries Fatima in a polygamous ceremony in Saudi Arabia. The three of
them are now living in one house in England. Both Ann and Fatima want divorces.
Advise them.† †
You may find Onobrauche
Question 2 Consider the view that: v Onobrauche [1978] 8 Fam
Law 107, Poon v Tan [1973] 4
‘Either English law should recognise a polygamous marriage for all purposes or
Fam Law 161 and Quoraishi
English law should not recognise polygamous marriages at all.’
v Quoraishi [1985] FLR 780
Question 3 Charles died in 2002, bequeathing all his property by will ‘to the useful. They are discussed in
children of my daughter Jennifer’. Charles was domiciled in Valhalla at the time of Clarkson and Hill, p.404.
making the will and at the date of his death.
Jennifer has two children, Bill and Ben. Bill was born out of wedlock in 1990, but
Jennifer married his father Harry in 1993. Harry has always been domiciled in
Nibelungland. Ben was born in 1996: his father is George, with whom Jennifer had
an affair.
According to the law of Valhalla ‘children’ in a will includes only legitimate and
legitimated children. According to that law Bill has not been legitimated. According
to the law of Nibelungland, Bill was legitimated by the marriage of his parents.
Advise the executors of Charles’s will.
Question 4 Was the Court of Appeal right in Re Luck’s Settlement Trusts to apply the
common law by analogy? Can you think of reasons why not?
page 164 University of London

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can state the conflict rules that apply to matters

of (a) formal and (b) essential validity in respect of
  
marriage

I can explain how English law responds to

polygamous marriages, and to civil partnerships and
  
cohabitation

I can explain who can marry in a polygamous form,

and when   

I can state the rules governing legitimacy and

legitimation   

I can explain the circumstances in which foreign

legitimations will be recognised by an English court.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

13.1 Formal validity of marriage  

13.2 Essential validity of marriage  

13.3 Polygamous marriage  

13.4 Same-sex marriages  

13.5 Legitimacy of children  

14 Matrimonial causes

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

14.1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

14.2 Choice of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

14.3 Recognition of foreign judgments . . . . . . . . . . . . . . . . . . . 172

14.4 Financial provision . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

page 166 University of London

Introduction
This chapter is about divorce, judicial separation and annulment of marriage. It
looks at questions of jurisdiction, choice of law (divorce and nullity), recognition of
foreign decrees, including non-judicial ones such as talaqs, and grounds for refusal to
recognise foreign decrees.

Finally, it considers financial relief and foreign maintenance orders. After studying this
chapter the law relating to jurisdiction, choice of law and recognition should be clear.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u state the rules governing jurisdiction for matrimonial causes
u state the choice of law rules for matrimonial causes, in particular for nullity
u explain the circumstances in which a foreign judgment relating to divorce or
nullity will be recognised (or refused recognition)
u explain the status of the talaq divorce
u describe the conflict of laws in financial provision
u state the rules governing legitimacy and legitimation
u explain the circumstances in which foreign legitimations will be recognised by
an English court.

core text
¢ Clarkson and Hill, Chapter 8 ‘Matrimonial causes’.
Conflict of laws  14  Matrimonial causes page 167

14.1 Jurisdiction
Jurisdiction is now governed by the Brussels II bis Regulation. This applies to all EU
countries except Denmark, and introduces uniform jurisdictional rules throughout the
EU. It provides for almost automatic recognition of all matrimonial judgments granted
by courts of Member States. The Brussels II bis Regulation applies to civil proceedings
relating to divorce, legal separation and marriage annulment. The Regulation does
not completely replace the ‘traditional’ common law rules (in the Domicile and
Matrimonial Proceedings Act 1973). But these are only applicable if the applicant is
domiciled in England.

14.1.1 The habitual residence rules

Jurisdiction lies with the courts of the Member State in whose territory:

u the spouses are habitually resident (or were last habitually resident in so far as one
of them still resides there)

u the respondent is habitually resident (or where there is a joint application, either is
habitually resident)

u the applicant is habitually resident if resident there for one year before the
application

u the applicant is habitually resident if he or she is resident there for six months and
is a national or (in the case of the UK) has his or her domicile there

u both spouses are domiciled in England and Wales.

The key concept is habitual residence. It is reasonably clear what this means in English
law (see Chapter 7), but in this context it will have to bear an autonomous European
meaning, yet to be worked out. Although English law allows one to be habitually
resident in more than one country at the same time, for the purpose of the Regulation
this is not possible: see Marinos v Marinos [2007] EWHC 2047 (Fam). The same applies to
residence, though not to domicile, which will bear the meaning it has in the common
law. It may prove amusing when we read a Spanish judge’s interpretation of the revival
of domicile of origin! In many senses the Regulation is broader than the common law.
But in one respect it is not: it is no longer possible for an application to be made on the
basis of one spouse’s domicile in England. This could cause hardship (see Clarkson and
Hill, pp.412–13, for examples).

Article 8 provides that where no court of a Member State has jurisdiction and the
respondent spouse does not come within Article 7, courts of Member States may use
their traditional jurisdictional rules. In the case of England this means that jurisdiction
can be assumed if either of the parties to the marriage is domiciled in England on the
date when proceedings are begun. In effect the traditional rule will be used only when
the applicant is domiciled in England and the respondent is not habitually resident in a
Member State nor is a national of a Member State (other than the UK or Ireland) nor is
domiciled in the UK or Ireland.

That a court has jurisdiction does not necessarily mean that it should exercise it. You
will recall that we have to distinguish common law jurisdiction, where there is a broad
discretion to stay an action on grounds of forum non conveniens, and Brussels regime
jurisdiction where this does not exist (see Chapters 5 and 6). Similar approaches can
be found with matrimonial proceedings.
page 168 University of London

14.1.2 Stays of proceedings under Brussels II

Under Brussels II an English court cannot stay proceedings on the ground that the
courts of another Member State are clearly more appropriate to resolve the issue.
Nor can an anti-suit injunction be issued to restrain proceedings in any such court.
However, Article 11(1) provides that where proceedings involve the same cause of
action and are between the same parties, the court second seised shall of its own
motion stay its proceedings, until such time as the jurisdiction of the court first seised
is established. Article 11(2) extends this rule to ‘dependent actions’, that is proceedings
not involving the same cause of action, but where there are proceedings for divorce,
annulment or legal separation between the same parties. Article 11(1) is like Article
27 of Brussels I (Council Regulation 44/2001). Article 11(2) is not identical to Article 28
(there is no discretion under Article 11(2)).† You should re-read Chapter 6. †
The rigidity of Article 11(2)
– the absence of discretion
A stay of proceedings is also mandatory where a respondent who is habitually resident
– has been heavily criticised.
in another Member State does not enter an appearance unless it is shown that he has
You might read Truex [2001]
been able to receive the document instituting the proceedings in sufficient time to
Fam Law 233 and Mostyn
enable him to arrange for his defence, or that all necessary steps have been taken to [2001] Fam Law 359.
this end (Article 11). Take just one example. A
The Domicile and Matrimonial Proceedings Act 1973 makes provision for English couple live and marry in
matrimonial proceedings to be stayed when proceedings are pending in a foreign England, but he returns to
Ireland and commences legal
court other than one of a Member State of the European Union.
separation proceedings. She
The English court must order a stay of divorce proceedings in the English court cannot commence divorce
if divorce or nullity proceedings in respect of the same marriage are continuing proceedings in England and
in another jurisdiction in the British Isles and the parties resided together in that will have to wait four years
jurisdiction when the English proceedings were begun, or, if they were not then before an Irish divorce can be
residing together, the place where they last resided together was in that jurisdiction, obtained. The English court
and either of the parties was habitually resident in that jurisdiction throughout can do nothing about this.
the year ending with the date on which they last resided together before the Mostyn suggests this may
commencement of the English proceedings. well be a violation of Articles
6 and 13 of the European
Discretion to stay Convention on Human Rights.

The traditional rules give the court a discretion to stay proceedings. These apply to
all cases where there are proceedings pending in a non-Member State. An English
court may stay English proceedings if it appears to the court that the balance of
fairness (including convenience) as between the parties to the marriage is such that
it is appropriate for the proceedings in the other jurisdiction to be disposed of before
further steps are taken in England (see Domicile and Matrimonial Proceedings Act
1973 Sch.1, para.9(1)). In the leading case of De Dampierre v De Dampierre [1988] AC 92,
the House of Lords held that in applying the balance of fairness test, courts should
have regard to the civil cases on forum non conveniens (on which see Chapter 6). So
if the foreign court is the clearly more appropriate forum, a stay will ordinarily be
granted unless there are circumstances by reason of which justice requires that the
stay should not be granted. De Dampierre concerned a French couple. They moved to
England, where H was involved in marketing cognac. When the wife set up a business in
New York and told H she did not intend to return, H instituted divorce proceedings in
France. A few months later W instituted divorce proceedings in England. H applied for
the English proceedings to be stayed. The House of Lords held a stay should be granted:
France was the appropriate forum. This would deprive W of substantial advantages but
this injustice was not determinative given the parties’ connections with France.

What sort of factors are relevant when the balance of fairness and convenience
is considered? Some taken into account by courts have included the locus of the
marriage and location of matrimonial assets (Krenge v Krenge [1999] 1 FLR 969); and
the existence of a pre-nuptial contract governed by the law of the other forum (C
v C [2001] 1 FLR 624). Even if there is a clearly more appropriate forum abroad, on
Spiliada principles (see Chapter 6) a stay may be refused if justice points to trial in
England. Thus in R v R [1994] 2 FLR 1036 the fact that the wife could obtain a property
adjustment, a lump sum and periodical payments in England, while in Sweden all
Conflict of laws  14  Matrimonial causes page 169
she could get was enforcement of a marriage contract, tilted the balance in favour of
proceedings in England continuing.

What are the implementations of Owusu v Jackson Case C-281/02 for matrimonial
proceedings? In Cook v Plummer [2008] 2 FLR 989 it was said that there were
contrary arguments in relation to the Owusu ruling, that it was ‘deeply unpopular
in this jurisdiction’, and that the UK was trying to mitigate its unattractive effect by
submissions in a review as to the operation of the Regulation. Despite this hesitancy,
there can be little doubt that Owusu does apply to matrimonial proceedings as well.

Summary
Jurisdiction is governed by the Brussels II Convention. The key concept is habitual
residence. The traditional rules are applicable only if the applicant is domiciled in
England. Brussels II has rules governing the stay of proceedings. At common law
(where the traditional rules apply) an action may be stayed on grounds of forum non
conveniens.

14.2 Choice of law

14.2.1 Divorce and separation

In divorce and separation English law is applied. It may be asked why. After all we
apply foreign law to determine whether a marriage is valid. Is there not a case, you
may ask, for applying the parties’ personal law to determine whether their marriage
may be dissolved? Civilian countries apply the lex patriae to determine whether
a divorce should be granted. The explanation is partly historical – until relatively
recently English law only took jurisdiction where the parties were domiciled in
England – and partly on belief that dissolution of marriage is a matter of English public
policy (should we really grant a divorce on some ‘strange’ foreign ground?).

The parties are given limited autonomy to choose the applicable law. It must be a law
with which they have a close connection.

In the absence of choice of the applicable law, a hierarchical rule is offered. It states
that the governing law should be the law of the state where the spouses have their
common habitual residence. In default, where they had their last common habitual
residence, in so far as one of them still resides there. Failing that, the law of the state of
which both are nationals, or in the case of the UK or Ireland, domiciliaries. Failing that,
where the application is lodged.

It is further proposed that renvoi should be excluded, and the applicable law be
subject to the public policy of the forum.

Rome II has many flaws: see Cheshire, North and Fawcett, pp.957–58.

14.2.2 Nullity
By contrast, choice of law in nullity is more complicated, and the governing law may
well be a foreign law. What it is will depend on the reason for the annulment. This in
turn depends upon what the impediment to marriage is. It is necessary, therefore, to
look at each implement in turn. There are full discussions in Clarkson and Hill
(Chapter 7) and Cheshire, North and Fawcett (pp.984–99).

Prohibited degrees of relationship

This has been governed since 1861 by the dual domicile test. Brook v Brook [1861] 94 L
Cas 193 decided a man could not circumvent the prohibition on marrying his deceased
wife’s sister by marrying her in Denmark. This question was governed by the lex
domicilii not the lex loci celebrationis. See also Re Paine [1940] Ch 46.
page 170 University of London

Lack of age
This is governed by the dual domicile rule. So in Mohamed v Knott [1969] 1 QB 1 a man
of 26 married a girl of 13 in Nigeria. Because the marriage was valid by Nigerian law,
English law accepted it was valid. The question may be asked as to what an English
court would have done had she been 11 or 9. In other words, when would it invoke
public policy? In England the minimum age for marriage is 16. So, what if someone of
21 domiciled in England were to marry a 13 year old in Nigeria? According to Pugh v
Pugh [1951] P 482, the marriage would be void because the 21 year old would lack the
capacity to marry someone underage according to English law. In Pugh the husband
was a colonel in his 40s, the wife a 15-year-old Hungarian. The decision is often
criticised: Dicey, Morris and Collins (p.200) comment cynically: ‘Was it really the object
of the statute to protect middle-aged English colonels from the wiles of designing
Hungarian teenagers?’ And Smart has asked what reason English law could have had to
annul the marriage: see [1986] 14 Anglo-Am L Rev 225. A defence is mounted in Clarkson
and Hill, pp.368–69.

Marriage polygamous; no capacity

The marriage is polygamous and there was no capacity to enter into such a marriage.
This has already been considered in detail: see Chapter 13.

Second monogamous marriage; first possibly still valid

There is a second monogamous marriage but there is a doubt whether the decree
dissolving or annulling the first marriage is valid. This may be illustrated by reference
to Lawrence v Lawrence. The facts are given in Chapter 2. The wife petitioned in
the English court for a nullity decree on the ground that her second marriage was
bigamous (she had divorced and remarried in the US state of Nevada and English law
would recognise the divorce but the law of Brazil, where she was then domiciled,
would not). English and Brazilian law agreed that she lacked the capacity to marry a
second time unless she was single. She contended that her capacity to marry H2 was
governed by Brazilian law as the law of her ante-nuptial domicile. On this reasoning
she argued the second marriage was void. At first instance Lincoln J upheld her second
marriage, its validity being governed, so he held, by English law as the law of the
intended matrimonial home and thus the law with which the marriage had its most
real and substantial connection (as to which see Chapter 13). The Court of Appeal
disagreed. It applied English law’s conflicts rules on recognition of foreign divorces
under which the Nevada divorce was entitled to recognition. The marriage was thus
valid because W was single when she married H2. You will observe three different
arguments were used in this case:

u void because no capacity by ante-nuptial domicile (W’s argument)

u void because there is capacity by intended matrimonial home (real and substantial
connection) (Lincoln J’s reasoning)

u void because English conflict of laws recognises the divorce (CA’s decision).

It may be that the third approach is the only one that can be adopted and used
consistently for a variety of situations (including the converse of Lawrence, where the
divorce (or annulment) is recognised by the domiciliary law and not by English law).
The decision in Lawrence was confirmed by s.30 of the Family Law Act 1986. See further
Clarkson and Hill, pp.375–77.

Lack of consent
There is no authority as to whether this should be classified as raising a question of
formal or essential validity (see Cheshire, North and Fawcett, p.790). It is hardly therefore
surprising that the law governing lack of consent – such questions as mistake, duress,
fraud – should be in doubt. As Cheshire, North and Fawcett observe (ibid.): ‘The only
solution supported by all the direct authorities is reference to English law as the law
of the forum … but this is … an abdication from the problem’. An example is Buckland
v Buckland [1968] P 296 (a marriage in Malta between two Maltese domiciliaries which
Conflict of laws  14  Matrimonial causes page 171
the husband only agreed to because he was threatened with imprisonment for ‘minor
corruption’. English law was applied, though the only connection with England was that
by the time of the proceedings he was domiciled in England). English law has also been
applied as the lex loci celebrationis (Parojcic v Parojcic [1958] 1 WLR 1280).

The better view is that issues of consent should be referred to the law of the domicile.
The leading case is Szechter v Szechter [1971] P 286. The case centred on the sad life of
Nina Karsow. She was only alive because her mother threw her from a train carrying
them to Auschwitz. Her health was not good. When she was imprisoned in the late
1960s for ‘anti-state activities’ – clearly a trumped-up charge by the anti-semitic Polish
Government of the day – Szechter, a blind Polish historian, for whom Nina worked as
secretary, persuaded the Polish authorities to release her if the two of them married.
To do this Szechter first divorced his wife (this was in reality a ‘sham divorce’). Nina’s
health was deteriorating rapidly and it was obvious that she wouldn’t survive the
sentence. Szechter and Nina married in prison and the three of them came to England,
and Szechter became a Professor of History at the London School of Economics.
Nina petitioned for a nullity, so that Szechter and his ‘real’ wife could remarry. Polish
law was the lex loci celebrationis and the domicile of both parties at the time of the
marriage. English law was the law of domicile at the time of the proceedings and the
lex fori. Both legal systems agreed that the marriage was void for duress. Sir Jocelyn
Simon P held that it was for Polish law, as the law of domicile of the parties at the time
of the marriage, to determine the validity of the marriage. It is, however, the view
of Cheshire, North and Fawcett (p.793), now supported by Dicey, Morris and Collins
(p.688), that the issue of a party’s lack of consent to marry should be determined by
reference to that party’s ante-nuptial domiciliary law.

Physical defects
These may include impotence, wilful refusal to consummate the marriage, mental
disorder. It was held by the Court of Appeal in De Reneville v De Reneville [1948] P 100
that these issues are to be decided by the law of the husband’s domicile at the time of
the marriage, or preferably the law of the matrimonial domicile in reference to which
the parties may have been supposed to enter into the bonds of marriage. Thus, in
Ponticelli v Ponticelli [1958] P 204, a marriage took place in Italy between W, domiciled
there, and H, domiciled in England. The matrimonial home was established in England.
H petitioned for nullity on the ground of W’s wilful refusal to consummate. By Italian
law this was not a ground for nullity. Held: that English law governed either as the lex
fori or as the lex domicilii (‘the law of the country in which the parties are domiciled at
the time of the marriage, and in which the matrimonial residence is contemplated’).
This is normally the ‘husband’s domicile at the time of the marriage’. The unfairness of
this rule can be seen if the facts are reversed (English-domiciled wife, Italian-domiciled
husband, matrimonial home in Italy, he refuses to consummate). On these authorities,
W would not get an annulment. Surely, she should be entitled to rely on the law
of her domicile at the time of the marriage to determine whether she should get
matrimonial relief from the English court.

Incapacities unknown to English law

What is the attitude of English law to a foreign prohibition on marriage unknown
to English law? For example, a prohibition on a Muslim man marrying a non-Muslim
woman or on marriages across castes or races. Some argue that an English court
would reject such a prohibition on public policy grounds (e.g. Dicey, Morris and
Collins, p.688 and Cheshire, North and Fawcett, p.737). But the cases do not support
this – and why should they? We don’t, for example, reject polygamy on public policy
grounds. Assuming the foreign incapacity is not regarded as contrary to public policy,
it is necessary to determine the appropriate choice of law rule. What would an English
court do if confronted with the marriage of a French domiciled Muslim woman who
married a non-Muslim English domiciliary in England? This marriage would be saved
under the rule in Sottomayor v De Barros (No.2) (see Chapter 13). But if they married
abroad? It is suggested that we would resort to public policy to deny recognition to
such an incapacity.
page 172 University of London

Summary
In divorce and separation no question of choice of law arises: English law applies. In
nullity the governing law depends on the reason for the annulment, that is on what
the impediment to the marriage is. New questions are arising, for example how English
law will respond to a same-sex marriage celebrated abroad.

14.3 Recognition of foreign judgments

There are three distinct schemes for the recognition of foreign judgments given in
matrimonial causes:

u Brussles II bis

u Family Law Act 1986 Part III (rest of world)

u Family Law Act 1986 s.44 (British Isles’ decrees).

14.3.1 Matrimonial decrees from EU Member States

The law on recognition of matrimonial decrees from Member States is closely
modelled on Council Regulation 44/2001 (see Chapter 5). Any divorce, legal separation
or annulment pronounced by a court in a Member State is to be recognised without
any procedure or formality. Non-recognition is permitted if recognition is manifestly
contrary to public policy (Article 22) or if:

u the judgment was given in default of appearance and there was no due and timely
service (unless the respondent has accepted the judgment unequivocally)

u the judgment is irreconcilable with a judgment in proceedings between the same

parties

u it is irreconcilable with an earlier judgment from a non-Member State in

proceedings between the same parties which qualified for recognition.

But the substance of the judgment may not be reviewed (Article 26); recognition may
not be withheld because the recognising court would not itself have granted the
decree (Article 25); and the jurisdiction of the adjudicating court may not be reviewed
or subjected to the test of public policy (Article 24).

14.3.2 The rest of the world

The rules for recognition for the rest of the world (‘the traditional rules’) are found in
the Family Law Act 1986. This distinguishes overseas divorces by proceedings from
divorces other than by proceedings.

Divorces by proceedings
Overseas divorces by proceedings are recognised if they are:

i. effective in the country in which they are obtained. In D v D [1994] 1 FLR 38, there
was evidence that the Ghanaian decree would be set aside on the ground that
there was no voluntary submission by the wife (held: the divorce was not effective
under Ghanaian law) and

ii. one of the parties fulfils one of the jurisdiction requirements.

These are:

Habitual residence. Note that no time is specified. Habitual residence must be

interpreted according to English law.

Domicile according to English law or, contrary to the general rule, according to the
law of that country in family matters (thus in Messina v Smith [1971] P 322 six weeks’
residence amounted to domicile in Nevada law).
Conflict of laws  14  Matrimonial causes page 173
Nationality. It is irrelevant that the person concerned is also a national of another
country, as in Torok v Torok [1973] 3 All ER 101 (Hungarian court has jurisdiction though
party now British: by Hungarian law it was impossible to shed nationality).

Divorces other than by proceedings

Overseas divorces other than by proceedings are recognised if they are:

i. obtained in the country of the domicile of the spouses. Where only one spouse
is domiciled in that country, it is sufficient provided that the divorce, etc. is
recognised by the domicile of the other, and

ii. neither party was habitually resident in the UK for one year before the divorce, etc.
was obtained.

These grounds are narrower than those for ‘proceedings’ divorces.

The crucial phrase ‘judicial or other proceedings’ (s.54(1)) is not defined in the Act.
The meaning of ‘other proceedings’ has been considered in a number of cases. In
Quazi v Quazi [1980] AC 744, the husband, a Pakistani national, obtained a divorce by
talaq under the law of Pakistan. This required a written notice of the divorce to be
sent to the chairman of an administrative body who then had to set up an arbitration
council, whose function was to bring about a reconciliation. The effect of the talaq was
suspended until 90 days after the notice of the talaq had been given to the official,
but if within that period the husband did not revoke the talaq it became effective. The
Court of Appeal did not think there had been ‘proceedings’. The House of Lords did.
Lord Scarman defined proceedings as ‘any act or acts officially recognised as leading to
divorce in the country where the divorce was obtained and which itself is recognised
by the law of the country as an effective divorce’ (p.824).

What therefore of the ‘bare talaq’? A bare talaq is a mere pronouncement, orally or
in writing, of a talaq, without any other formality. Does this amount to ‘proceedings’?
Different views were expressed initially, but it is now settled that a bare talaq does
not amount to proceedings. Proceedings does not include ‘a private act conducted
entirely by parties inter se or by one party alone’ even if there are witnesses. There
must, said the Court of Appeal, be ‘a degree of formality and at least the involvement
of some agency, whether lay or religious, of, or recognised by, the State as having a
function that is more than probative’ (Chaudhary v Chaudhary [1985] Fam 19). A ‘bare’
talaq followed by a registration process with the Sharia court was held in El Fadl v El
Fadl [2000] 1 FLR 175 to constitute proceedings. A Japanese divorce – the consensual
signing of a form – also came within the ambit of proceedings. The state was involved:
consent of itself created nothing. See H v H [2007] 1 FLR 1318.

Transnational divorces
The Family Law Act seems to have been premised on the basis that divorces take
place in a single country. But the problem of the transnational divorce must be
considered. This is a divorce where some steps towards the divorce are initiated
in one country and the divorce is completed by steps in another. For example, H, a
national of Pakistan, pronounces talaq in England and then, pursuant to Pakistani law,
sends a notice of it to the chairman of the relevant body in Pakistan, with a copy to his
wife who lives there. The arbitration council is set up in Pakistan and the talaq is not
revoked. The divorce becomes effective by Pakistani law. Section 44 of the 1986 Act
provides that no extra-judicial divorce obtained in the British Isles shall be regarded
as effective: only ‘overseas’ extra-judicial divorces are entitled to recognition. To
decide the effect in England of a transnational divorce, we need to distinguish, again,
‘proceedings’ divorces and those obtained otherwise than by means of proceedings.
page 174 University of London
Divorce by proceedings
First, divorces obtained by means of proceedings. In R v Secretary of State for the Home
Department, ex p Fatima [1986] AC 527, H was a Pakistani national who married there but
had lived in England since then. Wishing to marry W2 he purported to divorce W1 by
talaq. W2 was refused entry to the UK by an immigration officer at Heathrow Airport.
He concluded the talaq would not be recognised and so H was not free to marry W2.
Where was the talaq obtained? If it was obtained in Pakistan, it would be recognised
(because it would have been obtained in the country of H’s nationality). If it was
obtained in England, it would be denied recognition. Part of the proceedings had
taken place in England, others in Pakistan under the Muslim Family Laws Ordinance
1961. The House of Lords concluded that the divorce was not obtained wholly by
proceedings in Pakistan because the pronouncement of the talaq in England was an
essential part of the proceedings. It could not, therefore, be recognised.

This case was decided under earlier legislation. The wording of the 1986 Act is slightly
different. But in Berkovits v Grinberg [1995] Fam 142 it got the same judicial response. In
this case a Jewish bill of divorcement (a ‘get’) was written in England and delivered to
the wife in Israel, of which country both parties were nationals. The divorce was only
final when the wife received the get. The divorce must be ‘effective under the law of
the country in which it is obtained’ (s.46(1)(a)). The judge concluded that the word
‘obtained’ connoted a process rather than a single act – rather like, he said, getting a
degree! The writing of the get in England was part of this process. This process (‘the
proceedings’) had to be constituted in the same country in which the divorce was
obtained. It follows that no transnational divorces obtained by proceedings, whether
initiated in England or another country, are entitled to recognition. This is a harsh
conclusion. It will not inconvenience wealthy Muslims and Israelis – they will need to
fly to a Muslim country or Israel respectively – to divorce according to the laws of their
religion and nationality. But it will penalise the poor who may not be able to meet
these requirements. It will also create limping marriages. The husbands in Fatima
and Grinberg have different statuses according to English law and the laws of their
countries of nationality. For a critique of Berkovits v Grinberg see Reed [1996] Fam Law
100.

Where the divorce is obtained otherwise than by means of proceedings, where is

the divorce ‘obtained’? Most talaqs are obtained where they are pronounced and
so cannot be transnational. Clarkson and Hill (p.448) believe it is arguable that the
necessary steps for obtaining a khula – a divorce requested by a woman – could
‘straddle more than one country’. The example is given of a wife in Thailand e-mailing
her husband in Dubai asking for a divorce. He accepts the proposal and utters the
‘khula’ in Dubai. This divorce would appear to have been obtained in Dubai and if one
or both parties are domiciled in Dubai and the divorce is recognised by the other
party’s domiciliary law, the divorce is entitled to recognition in England.

14.3.3 Refusal of recognition of divorce from non-EU states

Section 51 sets out a number of grounds on which the recognition of a divorce from
non-Member States (and Denmark) may be refused. These are

i. The marriage is void or has been previously annulled or dissolved.

ii. The divorce or legal separation was obtained contrary to natural justice.

There are two grounds for a natural justice claim.

a. Lack of notice (s.52(3)(a)(i)). There is no requirement that a party should

actually have received notice. Recognition may be refused if in the view of the
court such steps for giving notice have not been taken as reasonably should
have been taken in the circumstances. There must be a ‘fundamental’ breach
of natural justice (B v B [2001] 3 FCR 331). An example is Sabbagh v Sabbagh
[1985] FLR 29 (the wife lived in Hendon in London and the only notice she could
have received was published in an official gazette in Brazil – a publication ‘not
normally circulated in Hendon’. Held that, although Brazilian procedures had
been properly complied with, she had not received reasonable notice. But
Conflict of laws  14  Matrimonial causes page 175
the court declined to exercise its discretion to refuse recognition because
she had not been unduly prejudiced, having decided not to take part in the
proceedings anyway). See also D v D [1994] 1 FLR 38.

b. Opportunity to take part (s.51(3)(a)(ii)). This must be an effective opportunity

to place views before the court. So, in Newmarch v Newmarch [1978] Fam 79,
failure of lawyers in Australia to comply with the wife’s instructions in England
did not give her the requisite opportunity, and in Joyce v Joyce [1979] Fam
93 failure of the authorities in Quebec to ensure that a wife in England who
wanted to contest proceedings was represented a similar conclusion was
reached. The court was influenced by the fact that the wife might have been
able to go to Quebec if the husband had paid the maintenance which was due.
Not being able to go to the foreign jurisdiction is a relevant consideration (see
Mamdani v Mamdani [1984] FLR 669).

iii. It is manifestly contrary to public policy (s.51(3)(c))

This discretion is to be exercised sparingly (note the word ‘manifestly’). As

examples, see Kendall v Kendall [1977] Fam 208 where the proceedings were a fraud
on the wife and the Bolivian court – the husband got the wife to divorce him by
getting her to sign a document which he told her enabled her to take the children
out of Bolivia but was in fact a power of attorney in favour of Bolivian lawyers to
start divorce proceedings on her behalf. See also Re Meyer [1971] P 298. You may
contrast Eroglu v Eroglu [1994] 2 FLR 287 (a ‘divorce of convenience’ to enable the
Turkish husband to serve less time in the army held not manifestly contrary to
public policy since neither of the parties was deceived).

Note where ground (ii) or (iii) is involved the court has a discretion. In other words it
can recognise the foreign decree, even if a ground for non-recognition is established. It
did so, in Newmarch v Newmarch (the English court could order maintenance after the
New South Wales divorce, so no one’s interests were served by refusing recognition –
the wife’s intention in contesting the divorce was to secure maintenance, not to stay
married).

In relation to extra-judicial divorces there is additional ground for non-recognition.

The court may refuse recognition (a) if there is no official document certifying that
the divorce is effective under the law of the country in which it was obtained, or (b)
where one of the parties was domiciled in another country when it was obtained, no
official document certifying that it is valid under the law of that country. This power is
discretionary: a divorce with no official document could thus still be recognised.

14.3.4 Recognition of nullity

The grounds for recognition of nullity decrees are the same as those for the
recognition of divorces. There are accordingly two regimes: Brussels II bis and the
Family Law Act 1986.

A problem can arise if a foreign court annuls a marriage which is valid under English
conflict of laws rules. If this happens English law recognises the foreign decree – and
ensures uniformity of status. This may have the effect of nullifying rights which have
existed in English law. Salvesen (or von Lorang) v Austrian Property Administrator [1927]
AC 641 illustrates this. (A German decree declared a marriage void ab initio 27 years
after the marriage, so that the wife was deprived of Austrian nationality, which, in
this case is what she wanted. But suppose she had not wanted this?) One answer to
this dilemma is to recognise the effects of the foreign decree, but only prospectively.
Another is to decline the foreign annulment contrary to public policy.

Grounds for refusing to recognise a foreign nullity decree

The grounds for refusing to recognise a foreign nullity decree are the same as for a
divorce decree.

i. It is irreconcilable with a previous decision of an English court or by a court

elsewhere, and recognised in England (Brussels II Regulation, Article 15(1)(c); Family
page 176 University of London
Law Act 1986 s.51(1)). This ground is mandatory under Brussels II, and discretionary
under the 1986 Act. An example is the case of Vervaeke v Smith [1983] 1 AC 145
(discussed in Chapter 2).

ii. It is contrary to natural justice. This is the same as for foreign divorce decrees.

iii. It is manifestly contrary to public policy. Under Brussels II, a decree may not
be refused recognition because English law would not allow an annulment on
the same facts (Article 18). But under the 1986 Act we can refuse to recognise
a nullity degree because the foreign rule by which the marriage is invalid is
deemed objectionable. Thus, in Gray v Formosa [1963] P 259, H, a Roman Catholic
domiciled in Malta, married W, domiciled in England, at an English register office.
H deserted W, returned to Malta and obtained a nullity decree on the ground that
under Maltese law a Roman Catholic could not validly marry except by a religious
ceremony. The Court of Appeal refused to recognise the decree holding it was
contrary to substantial justice. Sir Jocelyn Simon P (in Lepre v Lepre [1965] P 52,
64) explained the decision thus: it was ‘an intolerable injustice that a system of
law should seek to impose extraterritorially, as the condition of the validity of a
marriage, that it should take place according to the tenets of a particular faith’.

Self-assessment questions
1. John (domiciled in England) marries Sieglinde (a German national). For the
next 20 years they live mainly in England but spend lengthy periods of time in
Germany. John then takes up an appointment in Saudi Arabia. They become
habitually resident there but always intend to return to England. Does an English
court have jurisdiction if John wants to divorce Sieglinde? Does a German court
have jurisdiction? Can Sieglinde divorce John in England?

2. Assume the English court has jurisdiction. What law will it apply to:† †
In Question 2(i), what is the
significance of Malta having
i. a Maltese domiciled husband who wants a divorce from his Maltese wife
no system of divorce?
(there is no system of divorce in Malta)
Should we invoke public
ii. a Nigerian girl of 11, domiciled in Nigeria, and validly married by the law in policy in case (ii)? Compare
force in Northern Nigeria, who wants a nullity decree because she is under 16. Mohamed v Knott [1969] 1 QB 1:
do you think this is right?
3. Why are we more willing to recognise foreign alien marriages than divorces
which do not conform to our standards?

4. In what circumstances is a foreign divorce and a foreign annulment likely to be

considered contrary to public policy by an English court?

Summary
The rules relating to recognition are different depending on the regime. If it is a
judgment for an EU Member State it can only be denied recognition in limited
circumstances. For other judgments we still look to the Family Law Act 1986, which
distinguished divorces ‘by proceedings’ and those other than by proceedings. The
circumstances for recognition and the grounds for refusal of recognition are different
for proceedings and non-proceedings divorces.

14.4 Financial provision

We turn now to look at financial provision. Again we must keep separate questions of
jurisdiction, choice of law and recognition of foreign orders.

The court has jurisdiction to make orders for financial provision wherever it has
jurisdiction to the main proceedings for divorce, nullity or judicial separation. This means
when it has jurisdiction under Article 3 of Brussels II bis Regulation. That is where:

a. both parties are habitually resident in England and Wales

b. both parties were last habitually resident in England and Wales, and one of them
still resides there
Conflict of laws  14  Matrimonial causes page 177
c. the respondent is habitually resident in England and Wales

d. in the event of a joint application, either party is habitually resident in England and
Wales

e. the applicant is habitually resident in England and Wales if they resided there for at
least a year immediately before the application was made

f. the applicant is habitually resident in England and Wales if they reside there for at
least six months before the application was made and has a domicile there

g. both parties are domiciled in England and Wales.

Brussels II does not apply (it does not affect ‘property consequences of the marriage,
the maintenance obligation or any other ancillary measures’: Recital 10). The Brussels
Regulation (recast) also expressly excludes ‘maintenance obligations arising from a
family relationship, parentage, marriage or affinity’ (Article 1(2)).

An English court can make orders for financial provision during the subsistence of
marriage. If the respondent is domiciled in England the English court has jurisdiction. If
the respondent is domiciled in another Member State, the English court will only have
jurisdiction if the petitioner (the ‘maintenance creditor’) is domiciled or habitually
resident in England. On the meaning of ‘maintenance creditor’ see Farrell v Long [1997]
QB 842. Additionally, the English court will have jurisdiction if the respondent, who is
domiciled in a Member State, voluntarily appears before the English court (see Article
26 of Brussels Regulation (recast)), or if the parties (one of whom is domiciled in a
Member State) have agreed that the English court shall have jurisdiction, satisfying the
formal requirements of Article 25 of Brussels Regulation (recast).

If none of these provisions apply, the jurisdiction of the English court is determined
by the traditional rules. This depends on which court is involved. If it is the High
Court (and in undefended cases, a divorce county court) jurisdiction requires that
either spouse is domiciled in England or the applicant is habitually resident here for a
year before the application (Matrimonial Causes Act 1973 s.27(2)). In the magistrates’
court there is jurisdiction if either spouse ordinarily resides within its area and the
respondent is resident within the UK.

Whatever the grounds upon which an English court is exercising jurisdiction, Articles
29 and 30 of Brussels Regulation (recast) apply (to same or related causes of action). A
good illustration is K v B [1994] 1 FLR 267, where H started proceedings in Italy to obtain
access to a child and said he would pay maintenance to W. W then started proceedings
for maintenance in England and also cross-petitioned in the Italian proceedings seeking
maintenance. It was held that the English proceedings should not be stayed because
the first Italian proceedings did not relate to the same cause of action. As far as the
maintenance claims were concerned, the English court was the one first seised of the
matter.

Since the Matrimonial and Family Proceedings Act 1984 it has been possible for an
English court to grant financial relief after a foreign divorce, separation or annulment
to either party, provided he or she has not remarried. An English court has jurisdiction
if either of the parties was domiciled (in the English sense) in England at the date of the
application or foreign decree, or if either of them was habitually resident in England
for a year immediately preceding either of those dates, or if either or both of the
parties had at the date of the application a beneficial interest in a former matrimonial
home in England. No application can be made without the permission of the court,
which must be satisfied that there is a ‘substantial ground’ for making the application
(s.13(1)) and that, having regard to all the circumstances, it is appropriate for a financial
order to be made (s.16). This jurisdiction does not exist to give an applicant ‘two bites
at one cherry’ (Lamagni v Lamagni [1995] 2 FLR 452, 454). An applicant who has pursued
remedies abroad cannot have a second ‘go’ in England, even if circumstances change
(see Hewitson v Hewitson [1995] Fam 100).

English courts apply English law to maintenance matters. The domicile and residence
of the parties is irrelevant. For recent authorities see A v S [2003] 1 FLR 431 and M v L
page 178 University of London
[2003] 2 FLR 425. Look again at Chapter 11 to see how English law looks at matrimonial
property questions, in particular where there is an express (or implicit) pre-nuptial
agreement governed by a foreign law.

Judgments from Member States are entitled to recognition and enforcement under
the Brussels Regulation (recast) (or Lugano Convention if from Iceland, Norway
and Switzerland, or the Brussels Convention if from Denmark). It must be denied
recognition if it is irreconcilable with a judgment given in a dispute between the same
parties in England. See Hoffmann v Krieg [1988] ECR 645.

Judgments from other courts are in personam judgments and will qualify for
recognition under the rules considered in Chapter 7. They will need to satisfy the
requirement of finality, and may not do so.

Activities 14.1–14.3
14.1 In what circumstances will an English court recognise a talaq?
14.2 Explain the ‘transnational’ divorce. What problems does it cause?
14.3 In what circumstances is a foreign divorce and a foreign annulment likely to be
considered contrary to public policy by an English court?

Self-assessment question
Write a critical note on:
u the decision in Radwan v Radwan (No. 2)
u the decision in Lawrence v Lawrence
u the decision in Gray v Formosa.

Summary
With financial provision it is important to separate questions of jurisdiction, choice of
law and recognition of foreign orders. On jurisdiction, Brussels I applies. It is possible
for an English court to make an order for financial provision after a foreign divorce,
separation or annulment. English courts apply English laws in maintenance matters.
Judgments from EU Member States are entitled to recognition and enforcement under
Brussels I. Other judgments are enforced, but only if they satisfy the requirement of
finality. They may not do so.

Reminder of learning outcomes

By this stage you should be able to:
u state the rules governing jurisdiction for matrimonial causes
u state the choice of law rules for matrimonial causes, in particular for nullity
u explain the circumstances in which a foreign judgment relating to divorce or
nullity will be recognised (or refused recognition)
u explain the status of the talaq divorce
u describe the conflict of laws in financial provision
u state the rules governing legitimacy and legitimation
u explain the circumstances in which foreign legitimations will be recognised by
an English court.
Conflict of laws  14  Matrimonial causes page 179

Sample examination questions

Question 1 ‘The new rules on the recognition of foreign divorces and annulments,
together with the new power to award financial relief after recognition, leave little
or no scope for recognition to be refused on grounds of public policy.’ Discuss.
Question 2 Is the English law consistent in recognising the effects of polygamy
willingly, but talaqs only with great reluctance?
Question 3 Ahmed, a Muslim domiciled in Plenty, goes through two ceremonies of
marriage there in polygamous form. The first is with wife Jumilla, who is domiciled
in Plenty. The second is with Mary, who is domiciled in England and is on a short
holiday in Plenty.
Ahmed comes to England as a student, retaining his domicile in Plenty. He brings
with him both Jumilla and Mary. However, he soon tires of Jumilla and divorces her
by a talaq delivered in England.
He then meets and falls in love with Suma, another student who is resident in
England, but domiciled in Plenty. They decide to go on holiday together in Plenty,
and while there go through a ceremony of marriage in Muslim form. Subsequently,
they both return to England to continue their studies. But Ahmed gets a good job in
England and intends to stay there. Three years later, however, he changes his mind
and returns to Plenty, leaving Jumilla, Mary and Suma behind in England.
By Muslim law in force in Plenty, a man can have up to four wives at the same time,
and can divorce any of them by talaq pronounced in front of a Muslim cleric.
Advise:
a. Jumilla, who wishes to petition for a declaration as to the validity of her divorce.

b. Mary, who wishes to petition for a nullity decree.

c. Suma, who wishes to petition for a divorce.

All three women wish to do so in England.

page 180 University of London

Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?

Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.

Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.

Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.

Tick a box for each topic.

Ready to Need to Need to
move on revise first study again

I can state the rules governing jurisdiction for

matrimonial causes   

I can state the choice of law rules for matrimonial

causes, in particular for nullity   

I can explain the circumstances in which a foreign

judgment relating to divorce or nullity will be
  
recognised (or refused recognition)

I can explain the status of the talaq divorce   

I can describe the conflict of laws in financial
provision   

I can state the rules governing legitimacy and

legitimation   

I can explain the circumstances in which foreign

legitimations will be recognised by an English court.   

If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done

14.1 Jurisdiction  

14.2 Choice of law  

14.3 Recognition of foreign judgments  

14.4 Financial provision  

Conflict of laws page 181

Notes
page 182 University of London

Notes