THE LAW RELATING TO
INTERNATIONAL
COMMERCIAL
DISPUTES
BY
JONATHAN HILL
Professor of Law
University of Bristol
SECOND EDITION
LONDON HONG KONG
1998
CONTENTS
Preface v Table of Cases xxix Table of Statutes li Table of Statutory Instruments and Rules lix Table of Conventions, etc. lxi
CHAPTER 1: INTRODUCTION 1 1.1 Preliminary remarks 1 1.2 Jurisdiction and the recognition and enforcement of foreign judgments 3 Basic concepts 3 Jurisdiction 3 Two aspects to jurisdiction 3 Actions in personam and actions in rem 3 Recognition and enforcement 4 The traditional regime 5 The Brussels and Lugano Conventions 6 Jurisdiction and the recognition and enforcement of judgments within the
United Kingdom 7 1.3 Choice of law 7 1.4 Bibliographical note 10
PART I. JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
CHAPTER 2: PERSONS WHO CAN AND CANNOT SUE OR BE SUED 15 2.1 Legal capacity to sue or be sued 15 Foreign corporations 15 Other foreign juristic entities 15 Corporations established under the laws of territories which are not States 16 International corporations 17 Introduction 17 International organisations under the International Organisations Act 1968 18 International corporations to which the United Kingdom is not a party 19
Arab Monetary Fund v. Hashim (No. 3) 19 Westland Helicopters Ltd v. Arab Organisation for Industrialisation 21
Remaining problems 22 Foreign States 23 Foreign governments 25
CONTENTS
2.2 Persons who cannot sue: enemy aliens
2.3 State immunity
Background
The scope of immunities
The scheme of the Act
The principle of immunity
Exceptions to immunity
The burden of proof
Immunity from adjudicative jurisdiction
Submission
Arbitration
Ships
Commercial activities
Contracts of employment
Tort
Ownership, possession and use of property
Intellectual property rights
Membership of organisations
Taxes
Immunity from enforcement jurisdiction
Preliminary remarks
Immunity under section 13(1) and (2)
Waiver of immunity
No immunity in respect of property used for commercial purposes
Enforcement against separate entities
The general rule
The special position of a State's central bank
Service of process in proceedings against States
Instituting proceedings
Entering appearance
Judgments in default
2.4 Diplomatic immunity
Diplomatic officers
Diplomatic agents
Members of the administrative and technical staff
Members of the service staff
Waiver
The temporal scope of immunity
Consular agents
2.5 International organisations
CHAPTER 3: THE BRUSSELS AND LUGANO CONVENTIONS: GENERAL
CONSIDERATIONS
3.1 Introduction
3.2 Interpretation of the Conventions
Interpretation of the Brussels Convention
References to the European Court of Justice under the Luxembourg
Protocol
Methods of interpretation
Interpretation by national courts
26 26 26 27 29 29 30 30 30 31 31 32 34
35
36 36 37 37 38 38 38 38 39 40 42 42 42 43 43 44 44 45 45 45 46 46 46 46 47 47 49 49 52 52 52 54 55 vinInterpretation of the Lugano Convention 56 Protocols and declarations 56 Domestic legislation 57 Can the courts of EC Member States refer questions of interpretation to the
Court of Justice? 58 Practical problems in cases which are not referred to the Court of Justice 59 3.3 Scope of the Conventions 59 Introductory remarks 59 Civil and commercial matters 60 Exceptions 62 Family law 62 Bankruptcy and insolvency 63 Social security 64 Arbitration 64 Legal proceedings relating to arbitration 65 Legal proceedings relating to arbitration in which the validity of the
arbitration agreement arises as a preliminary question 66 Legal proceedings relating to the validity of an arbitration agreement 67 Legal proceedings in which the jurisdiction of the court is contested on the
basis of an arbitration agreement 67 Legal proceedings to enforce an arbitration agreement by injunction 68 The recognition and enforcement of judgments given in breach or
disregard of an arbitration agreement 68 3.4 The relationship between the Brussels and Lugano Conventions 71 3.5 The relationship between the Brussels and the Lugano Conventions and other
international conventions 72 CHAPTER 4: JURISDICTION IN PERSONAM UNDER THE BRUSSELS
AND LUGANO CONVENTIONS: INTRODUCTION 75 4.1 Domicile under the Conventions 75 The domicile of individuals 75 Introduction 75 Domicile in the United Kingdom 76 Domicile in other States 77 The domicile of corporations 77 Introduction 77 Domicile in the United Kingdom 78 Domicile in another State 78 Multiple domiciles 79 Special definitions 80 4.2 The basic structure of the jurisdiction rules 80
Bases of jurisdiction applicable to defendants domiciled in a Contracting State:
Articles 2 and 3 80 Bases of jurisdiction applicable to persons who are not domiciled in a
Contracting State: Article 4 81
Lis pendens and related actions 82
The standard of proof 82 The merits of the dispute 82 Questions of jurisdiction 83
4.3 Service abroad in cases falling within the scope of the Conventions 84 Service abroad without leave 84 Methods of service 86 Period for service 87 4.4 Procedural safeguards 87 CHAPTER 5: BASES OF JURISDICTION IN PERSONAM UNDER THE
BRUSSELS AND LUGANO CONVENTIONS 91 5.1 Exclusive jurisdiction: Article 16 92 Article 16(1) 92 Preliminary remarks 92 Article 16(l)(a): rights in rent 93 General principles 93 Proceedings relating to contracts for the sale of land 94 Proceedings relating to trusts of land 94 Article 16(l)(a): tenancies of immovable property 96 Leases falling within the scope of Article 16(l)(a) 96 Proceedings which have as their object . . . tenancies of immovable
property 97 Short leases 97 Proceedings concerning immovable property in more than one Contracting
State 98 Certain proceedings relating to corporations 98 Certain proceedings concerning entries in public registers 100 Certain proceedings concerning intellectual property 100 Enforcement proceedings 101 Examination of jurisdiction 102 5.2 Submission: Article 18 102 5.3 Jurisdiction agreements: Article 17 105 Preliminary considerations . 105 The text 105 The relationship between the two Conventions 105 Article 17(1): basic conditions 106 An agreement on jurisdiction 106 An independent concept 106 The legal relationship 106 Choice of the courts of a Contracting State 107 Choice of the courts of a non-contracting State 108 Article 17(1): formal requirements 108 Introduction 108 In writing or evidenced in writing 109 In writing 109 Evidenced in writing 112 In a form which accords with practices which the parties have established
between themselves 112 Trade usages 113 The formal requirements of Article 17(1) and third parties 114 The formal requirements of Article 17 and national law 115 Material validity and interpretation 116 Material validity 116 Interpretation 117
Situations where jurisdiction under Article 17 is not exclusive 118 Alternative fora 118 Non-exclusive jurisdiction clauses 119 Clauses for the benefit of one party only 120 5.4 Provisional measures 120 5.5 The domicile rule: Article 2 122 5.6 Alternative fora I: Article 5 122 Introduction 122 Jurisdiction in matters relating to contract and tort: introduction 124 Methods of interpretation 124 Are paragraphs (1) and (3) mutually exclusive? 125 Are paragraphs (1) and (3) all-embracing? 126 Jurisdiction in matters relating to a contract 127 Matters relating to a contract 127 Denial of an alleged contract's existence 128 Obligations in cases involving void contracts 128 Pre-contractual obligations 130 The obligation in question 131 The general rule 131 Multiple obligations 133 Place of performance 135
Agreements on the place of performance: the relationship between
Article 5(1) and Article 17 135 The place of performance in the absence of agreement 137 The jurisprudence of the Court of Justice in the light of the purpose of
Article 5(1) 138 Jurisdiction in matters relating to tort 139 Matters relating to tort, delict or quasi-delict 139 A harmful event 140 The place where the harmful event occurred 141 Multiple locality cases 141 Cases involving economic loss 143 Branch, agency or other establishment 145 Branch, agency or other establishment 145 Operations 147 Relations between a branch and the parent body 148 Trusts 149 5.7 Alternative fora II: Article 6 149 Introduction 149 Multiple defendants 150 Third party proceedings 152 Counterclaims 153 Contractual claims involving matters relating to rights in rent in immovable
property 154 5.8 Insurance, consumer contracts and employment contracts 155 Insurance: Articles 7 to 12A 155 Proceedings brought against insurers 156 Article 8 156 Article 9 157 Article 10 157
Article 5(5) 1 5 8
Jurisdiction agreements 158 Proceedings brought against the policy-holder, the insured or a beneficiary 158 Jurisdiction agreements 159 Paragraph 1 15" Paragraph 2 I5 9 Paragraph 3 I6 0 Paragraph 4 I6 0 Paragraph 5 I6 0
Consumer contracts: Articles 13 to 15 162 The scope of Section 4 162 Proceedings brought against the consumer 163 Proceedings brought against the other party 164 Jurisdiction agreements 165 Employment contracts 165 Special jurisdiction 166 Background 166 The scope of the rules relating to individual contracts of employment 167 Cases where the employee habitually works in a single Contracting State 167 Cases where the employee does not habitually work in a single
Con-tracting State 168 Jurisdiction clauses in employment contracts 168 CHAPTER 6: BASES OF JURISDICTION IN PERSONAM UNDER THE
MODIFIED CONVENTION 171 6.1 Jurisdiction in civil and commercial matters: the Modified Convention 171 The scope of the Modified Convention 171 The text of the Modified Convention 173 Interpretation 173 6.2 Bases of jurisdiction under the Modified Convention 174 Exclusive jurisdiction: Article 16 174 Prorogation of jurisdiction 175 Article 18 175 Article 17 175 Special jurisdiction 176 Article 5 176 Articles 6 and 6A 177 Consumer contracts 177 Procedural matters and provisional measures 177 CHAPTER 7: BASES OF JURISDICTION IN PERSONAM UNDER
TRA-DITIONAL RULES 179 7.1 Presence 179 Individuals 179 Personal service: RSC, Order 10, rule 1(1) 179 Postal service and letter box service: RSC, Order 10, rule 1(2) 181 Corporations 183 UK companies 183 Oversea companies: introduction 184
Section 690A: what is a branch? 185 Section 691: what is an established place of business? 185 Section 694A: service of process on an oversea company with a branch in
England 187 Section 695: service of process on an oversea company with a place of
business in England 188 Partnerships: RSC, Order 81 189 Staying proceedings founded on the defendant's presence 190 7.2 Submission 191 Jurisdiction agreements 191 Agreements to submit 191 Voluntary appearance 192 7.3 Service out of the jurisdiction under RSC, Order 11, rule 1(1) 193 Introduction 193 Three issues 193 Procedure 194 A serious question to be tried 195 The heads of RSC, Order 11, rule 1(1) 196 Jurisdiction based on domicile 196 Injunctions 197 Multiple defendants 197 Contract 199 General scope 199 Made within the jurisdiction 201 Whose agent? 202 Contracts governed by English law 202 Jurisdiction clauses in favour of the English courts 203 Breach of contract within the jurisdiction 203 Tort 203 Constructive trusts 205 Other heads of jurisdiction 205 Interpretation and standard of proof 206
Forum conveniens 207
The test 207 When is appropriateness to be assessed? 208 The first stage of the test 208 The second stage of the test 209 The impact of a jurisdiction clause 209 CHAPTER 8: BASES OF JURISDICTION IN ADMIRALTY PROCEEDINGS 211 8.1 Jurisdiction under the Supreme Court Act 1981 212 The Admiralty jurisdiction of the High Court: section 20 212 Section 20(l)(a) and (b) 212 Disputes between co-owners 213 Mortgages and charges 213 Damage to a ship 213 Damage done by a ship 213 Carriage and hire 214 Salvage 216
Goods supplied to a ship 216 Wages 217 Disbursements 217 Other bases of jurisdiction 217 Section 20(l)(c) 218 Section 20(l)(d) 218 Jurisdiction in rem: section 21(2) to (8) 219 Section 21(2): cases falling within section 20(2)(a) to (c) and (s) 219 Section 21(3): maritime liens 219 Maritime liens 219 "Or other charge" 219 Section 21(4): cases falling within section 20(2)(e) to (r) 220 The relevant person 220 The particular ship: section 21(4)(b)(i) 221 Other ship: section 21(4)(b)(ii) 221 Beneficial owner 222 The relationship between section 21(3) and (4) 223 Jurisdiction in actions in personam: section 21(1) and section 22 224 Commencing Admiralty proceedings 225 Actions in rem 225 Actions in personam 226 8.2 The impact of the Brussels and Lugano Conventions 227 Introduction 227 The basic scheme of the Conventions 227 Do the Conventions apply to actions in reml 227 The preservation of special conventions 228 The combined effect of Title II and Article 57 229 Limitation and salvage 232 Salvage of cargo or freight 232 Limitation of liability 233 CHAPTER 9: DECLINING JURISDICTION AND THE STAYING OF
ACTIONS 235 9.1 Declining jurisdiction and staying proceedings under the Conventions 235 General considerations 236 Section 8 and the scope of the Conventions 236 Parties not domiciled in a Contracting State 237 The bases of jurisdiction on which the parallel proceedings are based 237 Section 8 and enforcement proceedings 238 The court first seised 239 Parallel proceedings commenced on the same day 241 Concurrent proceedings 241
Lis pendens 241
The operation of Article 21 241 The same cause of action 242 The same parties 245 Multiple parties 245 Parallel proceedings in personam and in rem 246 The relationship between the court first seised and the court second seised 248 The general rule 248 Section 8 and jurisdiction under sections 3 to 5 248
Section 8 and jurisdiction agreements 249 The relationship between section 8 and Article 24 251 The relationship between Article 21 and Article 22 251 Related proceedings: Article 22 252 Article 22 does not confer jurisdiction 252 What are "related actions"? 253 Staying proceedings under Article 22(1) 253 Declining jurisdiction under Article 22(2) 255 Rival exclusive jurisdictions: Article 23 255 Parallel proceedings within the United Kingdom 256 9.2 Staying proceedings on the basis of the doctrine of forum non conveniens 256 Forum shopping 256 The development of English law 258 The test of appropriateness 260 General considerations 260 A two stage test 261 The first stage 261 The second stage 263 The application of the test: factors to be taken into account 263 Factors considered at the first stage 264 Convenience and expense 264
Lis alibi pendens 264
Multiple defendants 265 The "Cambridgeshire" factor 266 The applicable law 267 Language 268 Factors considered at the second stage 268 Time bars 268 Delay 269 Costs 269 Damages 269 Impecuniosity 270 The impact of competing choice of law rules 271 Procedural fairness 272 The weighing of factors 273 Appeals against the exercise of discretion 274 9.3 The impact of a jurisdiction clause 274 9.4 Jurisdiction in cases involving foreign land and foreign intellectual property
rights 277 Cases involving foreign land 277 Cases involving foreign intellectual property rights 279 9.5 Staying proceedings under the court's inherent jurisdiction in cases involving
the Conventions 280 Cases where jurisdiction is founded on the traditional rules 281 Cases where jurisdiction is founded on Title II and the alternative forum is a
non-contracting State 282 Cases involving land in a non-contracting State 282 Cases involving a jurisdiction clause in favour of a non-contracting State 282
Forum non conveniens 283
Cases where jurisdiction is founded on Title II and the alternative forum is a
Cases involving the Modified Convention 286
Internal disputes 287
Cases governed by one of the Conventions and the Modified Convention 287
The alternative forum is the court of a non-contracting State 287
The alternative forum is the court of another Contracting State 287
The alternative forum is the court of another part of the United Kingdom 288
CHAPTER 10: PROVISIONAL MEASURES 289
10.1 Different types of provisional measure 289
Introduction 289
Interlocutory injunctions 291
Mareva injunctions 291
Background 291
Obtaining a Mareva injunction 292
The effect of a Mareva injunction 294
Injunctions operate in personam 294
Third parties 295
Mareva injunctions and the provision of security 295
Ancillary and related orders 296
Disclosure orders 296
Receivership orders 297
Anton Piller orders 298
10.2 Jurisdiction to grant provisional measures: proceedings in rem 299
10.3 Jurisdiction to grant provisional measures: proceedings in personam 302
Background: the position at common law 302
Jurisdiction to grant provisional measures in support of foreign proceedings 304
Section 25 of the Civil Jurisdiction and Judgments Act 1982 304
The exercise of the power 305
Discretion 305
The impact of an exclusive jurisdiction clause 306
The significance of parallel proceedings in another Contracting State 307
Post-judgment provisional measures 308
Jurisdiction to grant provisional measures in support of arbitration
proceedings 309
10.4 Extraterritorial provisional measures 310
Introduction 310
Extraterritorial Mareva injunctions 312
The necessary conditions 312
Factors relevant to the exercise of discretion 313
The protection of the defendant and third parties 314
Protecting the defendant against a multiplicity of proceedings and the
misuse of information 315
The protection of third parties: the Babanaft proviso 316
The dangers of extraterritorial Mareva injunctions 319
10.5 Enforcement of foreign provisional measures 319
CHAPTER 11: ANTISUIT INJUNCTIONS 321
11.1 Preliminary remarks 321
11.2 The bases on which an antisuit injunction may be granted 323
Unconscionable conduct 324
England is the natural forum 324 Single forum cases 324 Cases in which the English court does not have jurisdiction over the
substance of the dispute 325 Vexatious or oppressive 325 Choice of forum cases 326 Single forum cases 327 Collecting evidence abroad 328 Infringement of a legal or equitable right 329 The older authorities 330 The modern cases 330 Reasons for not granting an antisuit injunction 331 Foreign proceedings for obtaining security 331 Delay 332 Challenge to the foreign court's jurisdiction 333 Cases involving multiple parties 334 11.3 The Brussels and Lugano Conventions 335 CHAPTER 12: THE RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS UNDER THE COMMON LAW AND UNDER
RELATED STATUTORY REGIMES 337 12.1 Introduction 337 Why recognise foreign judgments? 337 Which foreign judgments should be entitled to recognition and enforcement? 338 12.2 Conditions for enforcement at common law 338 The jurisdiction of the original court 338 Introductory remarks 338 Submission 339 A sufficient territorial connection 342 Individuals 342 Corporations 343 The problem of federal States 345 No other bases of jurisdiction 346 Judgments concerning foreign immovable property 346 Final and conclusive 347 For a fixed sum 347 12.3 Conditions for recognition at common law 348 Introduction 348 On the merits 351 Identity of the parties 353 Identity of the cause of action or issue 355 Cause of action estoppel 355 Issue estoppel 356 12.4 Defences to recognition and enforcement at common law 358 Natural justice 359 Traditional categories 359 Substantial justice 359 Fraud 360 General principles 360 The application of the principles to different types of fraud 361 Public policy 363
Res judicata 364
Civil Jurisdiction and Judgments Act 1982, section 32 364
Multiple damages 365
12.5 Recognition and enforcement of judgments in rem 366
Jurisdiction of the original court 366
Defences 367
Enforcement 367
12.6 Recognition and enforcement under statutory regimes based on the common
law 367
Enforcement under Part II of the Administration of Justice Act 1920 368
Recognition and enforcement under the Foreign Judgments (Reciprocal
Enforcement) Act 1933 370
Enforcement: conditions and procedure 370
Resisting enforcement 371
Improper registration 371
Lack of jurisdiction 372
Lack of notice of the proceedings 373
Fraud 373
Public policy 373
Irreconcilability 373
When an appeal is pending abroad 373
Protection of Trading Interests Act 1980 374
Recognition 374
CHAPTER 13: THE RECOGNITION AND ENFORCEMENT OF
JUDG-MENTS UNDER THE CIVIL JURISDICTION AND JUDGJUDG-MENTS
ACT 1982, JUDGMENTS AGAINST STATES AND EUROPEAN
COMMUNITY JUDGMENTS 375
13.1 Basic conditions for recognition and enforcement under the Brussels and
Lugano Conventions 376
The scope of the Conventions 376
What is a "judgment"? 376
Article 25 376
Procedural orders 377
Ex pane orders 378
Penalties 378
Partial enforcement 379
The relationship between Title II and Title HI 379
13.2 The principle of automatic recognition under the Brussels and Lugano
Conventions 380
13.3 Defences to recognition under the Brussels and Lugano Conventions 382
No review of the merits: Article 29 382
Limited review of jurisdiction: Article 28 382
Public policy: Article 27(1) 385
The proper approach to public policy 385
Limits on public policy 385
Public policy and fraud 386
Safeguarding the rights of the defendant: Article 27(2) 387
The relationship between Article 20 and Article 27(2) 387
One defence or two? 388
"In default of appearance" 389
Due service 390 In sufficient time 391 Irreconcilability: Article 27(3) 394 Irreconcilability: Article 27(5) 395 Irreconcilability: Article 27(4) 396 Appeals in the State of origin: Article 30 396 Article 30(1): what is an "ordinary appeal"? 396 Article 30(2): the special position of appeals in Ireland and the United
Kingdom 397 The exercise of discretion 397 13.4 Enforcement of judgments under the Brussels and Lugano Conventions 398 Introduction 398 Application for enforcement 398 The application 398 Formalities 399 Security for costs 402 The decision 402 Appeals against registration 403 The first appeal 403 The effect of an appeal pending before the court of the State of origin 404 Limitations on enforcement 406 A further appeal on a point of law 408 Appeals against a refusal to register 409 The first appeal 409 A further right to appeal on a point of law 409 Legal aid 409 The relationship between national law and Title III 410 The exclusivity and autonomy of the Conventions 410 Enforcement and execution 410 13.5 Authentic instruments and court settlements under the Brussels and Lugano
Conventions 411 Authentic instruments 412 Court settlements 412 Grounds for refusing enforcement 413 13.6 Recognition and enforcement of judgments within the United Kingdom 413 Introduction 413 Recognition 414 Enforcement 415 Introduction 415 Money judgments: Schedule 6 416 Non-money judgments: Schedule 7 416 13.7 Judgments against States and European Community judgments 417 Recognition of judgments given against the United Kingdom 417 Recognition and enforcement of judgments given against other States 418 European Community judgments 418
PART II: CHOICE OF LAW
CHAPTER 14: CHOICE OF LAW IN CONTRACT: INTRODUCTION 423 14.1 The common law 423
14.2 The Contracts (Applicable Law) Act 1990 425
Background and commencement 425
Opposition to the Rome Convention 426
14.3 Interpretation of the Rome Convention 427
The jurisdiction of the Court of Justice 427
Interpretation in cases where there is no reference 429
14.4 The scope of the Convention 430
Material scope 430
Choice of law relating to contractual obligations 430
Exceptions 431
Status and family law matters 432
Insurance contracts 432
Jurisdiction and arbitration agreements 432
Negotiable instruments 433
Agency 434
Questions governed by company law 434
Evidence and procedure 434
Territorial scope 434
Universal application 434
"Internal" conflicts 435
Temporal scope 435
14.5 Exclusion of the doctrine of renvoi 435
CHAPTER 15: CHOICE OF LAW IN CONTRACT: GENERAL CHOICE OF
LAW RULES 437
15.1 The applicable law in cases of choice 437
Introduction 437
The principle of party autonomy 437
The existence and validity of choice 438
Choice and incorporation 438
Express choice 439
"Implied" choice 440
Standard forms 441
Previous course of dealing 442
Dispute resolution clauses 443
Reference to provisions of domestic law 445
Related transactions 445
Concluding remarks 446
Splitting the applicable law 446
Changing the chosen law 447
Mandatory rules 448
15.2 The applicable law in the absence of choice 449
Introductory remarks 449
Closest connection 449
The presumption in paragraph 2 450
Introduction 450
Characteristic performance 451
The connecting factor 453
Habitual residence 454
Central administration 455
Place of business 455
Principal place of business 455
The presumption 456
The presumption does not apply 458
Rebuttal of the presumption 458
Scission 461
Mandatory rules 461
15.3 Mandatory rules and public policy 461
Introduction 461
The application of mandatory rules 463
The application of overriding rules 464
Overriding rules under Article 7(1) 464
Overriding rules of the forum: Article 7(2) 464
Public policy: Article 16 466
15.4 Particular aspects of the contract 468
Preliminary remarks 468
Material validity: Article 8 469
Introduction 469
The general principle 470
The problem of consent 471
Formal validity: Article 9 472
What are questions of form? 472
Choice of law rules 473
Capacity 474
Individuals 474
General principles 474
Article 11 475
Corporations 476
Performance 476
The applicable law 476
Performance and manner of performance 477
Interpretation 478
Discharge 478
Nullity 479
Illegality 479
Initial illegality 480
Subsequent illegality 481
Remedies 483
CHAPTER 16: CHOICE OF LAW IN CONTRACT: SPECIFIC CONTRACTS 485
16.1 Certain consumer contracts 485
Consumer contracts governed by Article 5 485
General scope 486
The qualifying conditions 487
Three special rules 487
The applicable law in the absence of choice 487
The application of mandatory rules in cases where the parties have chosen a
law 488
Formal validity 488
Overriding rules of the forum 488
16.2 Individual employment contracts 490
What is an individual employment contract? 490
The applicable law in cases where the parties have not made a choice of law 490
The common law 490
Article 6(2) 491
The application of mandatory rules in cases where the parties have made a
choice of law 492
Overriding rules 493
16.3 Carriage of goods 494
The applicable law 494
Overriding rules of the forum 495
16.4 Contracts relating to the transfer of property 496
Immovables 496
The applicable law 497
Formal validity 497
Capacity 498
The sale of tangible movables 498
The law governing the contract 498
The transfer of tangible movables 499
Retention of title agreements 500
Voluntary assignment of intangibles 501
Introduction 501
Assignability 501
Contractual questions 502
Proprietary questions: the transfer of property from the assignor to the
assignee; priorities 502
16.5 Agency 504
Introduction 504
Formal validity 504
Is the principal bound? 504
16.6 Insurance and reinsurance 505
Introduction 505
Insurance Companies Act 1982 506
General policies 506
Long term policies 508
The Friendly Societies Act 1992 508
16.7 Negotiable instruments 508
Introduction 508
What is a negotiable instrument? 508
Which law governs whether a particular instrument is negotiable? 510
Contracts (Applicable Law) Act 1990 510
Choice of law rules 510
Questions of form 511
Interpretation 512
Presentment 513
The date of payment 514
Contractual capacity 515
Transfer of the instrument 515
CHAPTER 17: CHOICE OF LAW: NON-CONTRACTUAL OBLIGATIONS 517
17.1 Approaches to choice of law in tort 517
Introduction 517
The law of the forum 518
The law of the place of the wrong 518
Alternative approaches 519
Alternative approaches to choice of law in tort 519
The proper law of the tort 519
Governmental interest analysis 520
Alternative approaches in practice 521
Babcock v. Jackson: an easy starting-point 521
Subsequent developments: harder cases 522
Problems with governmental interest analysis 524
17.2 Choice of law in tort: common law rules 525
Background to the English choice of law rules 525
The importance of the place of the wrong 525
Torts committed abroad 526
The modern position 527
Boys v. Chaplin: outline 527
Lord Wilberforce's speech and its application 529
The general rule: double actionability 529
The exception 530
17.3 Choice of law under Part HI of the Private International Law (Miscellaneous
Provisions) Act 1995 534
Introduction 534
Background to the 1995 Act 534
The scope of the statutory rules 535
Issues relating to tort 535
Defamation claims 536
Torts committed in England 537
The exclusion of renvoi 538
The general rule 538
Single locality cases 539
Multiple locality cases 539
The exception 540
The threshold for the application of section 12 540
What factors are relevant? 541
When is the exception likely to be applied? 541
The scope of the applicable law: substance and procedure 543
Public policy and overriding rules 545
Public policy 545
Overriding rules 545
17.4 The interaction of contract and tort choice of law rules 546
Introduction 546
The nature of the problem 546
Contract or tort? 547
The position if the plaintiff advances the claim in contract 548
The position if the plaintiff advances the claim in tort 548
Preliminary remarks 548
The simple analysis 548
The developed analysis 549
Further preliminary choice of law questions 549
The application of the developed analysis 550
17.5 Restitution and equitable wrongs 551
Introduction 551
Classification 553
Equitable wrongs 553
Unjust enrichment 554
Restitution for wrongs 556
Unjust enrichment: choice of law rules 557
CHAPTER 18: FOREIGN CURRENCY OBLIGATIONS AND JUDGMENTS
IN A FOREIGN CURRENCY 561
18.1 Nominalism 561
The general principle 561
The importance of the law governing the obligation 562
Revalorisation under the law applicable to the transaction 563
Compensation for late payment 564
Avoiding the effects of nominalism: gold clauses 565
Gold-coin clauses and gold-value clauses 565
The role of the applicable law 566
18.2 The money of account and the money of payment 567
Introduction 567
Determining the money of account 567
Debts 567
Damages 569
The parties' agreement 569
If there is no agreement 570
Qualifications 572
Discharging foreign currency obligations 572
18.3 Judgments in a foreign currency 574
Background 574
The Miliangos case 574
18.4 Problems arising out of exchange control legislation 576
General principles 576
"Exchange contracts" 578
What is an "exchange contract"? 578
The effect of Article VIH(2)(b) 578
CHAPTER 19: FOREIGN LIMITATION PERIODS 581
19.1 The Foreign Limitation Periods Act 1984 581
The general principle 581
Public policy and undue hardship 583
Undue hardship: section 2(2) 583
Public policy 585
The effects of disapplying the foreign limitation period under section 2 585
19.2 The Rome Convention 585
CHAPTER 20: PROOF OF FOREIGN LAW 587
20.1 Foreign law: a question of fact 587
20.2 Cases in which foreign law does not have to be proved 588
20.3 Mode of proof 589
The requirement of evidence 589
Uncontradicted evidence 590
Conflicting evidence 590
Who is an expert? 590
Decisions on points of foreign law in subsequent cases 591
Seeking outside help 592
20.4 Appeals 592
PART III: ARBITRATION
CHAPTER 21: ARBITRATION: INTRODUCTION 597
21.1 What is arbitration law? 597
21.2 Various types of arbitration 598
Domestic and international 598
Ad hoc and institutional 599
Specialised arbitrations 601
21.3 Trends in international commercial arbitration 601
Encouragement 601
Harmonisation 602
The Geneva Protocol 1923 and the Geneva Convention 1927 602
The New York Convention 1958 602
UNCITRAL Arbitration Rules 603
The UNCITRAL Model Law 603
The evolution of English law 604
21.4 Outline of English arbitration law 606
The foundations of arbitration: the arbitration agreement 606
The doctrine of separability 607
Validity and scope of the arbitration agreement 608
The powers of the tribunal 608
General powers of the tribunal 608
The problem of delay 609
The powers of the court 610
Assistance and support 610
Enforcing the agreement to arbitrate 610
The constitution of the arbitral tribunal 611
Extending time limits 611
The conduct of proceedings 612
Enforcement of the award 613
Supervision and control 614
The removal of an arbitrator 614
Costs and fees 614
Determination of the arbitrator's jurisdiction 615
Recourse against the award 616
Appeals on a point of law 617
CHAPTER 22: THE AGREEMENT TO ARBITRATE 621
22.1 The law governing the arbitration agreement 621
22.2 Enforcement of the agreement to arbitrate 622
Introduction 622
Conditions for the grant of a stay under section 9 624 An arbitration agreement between the parties 624 An arbitration agreement within the scope of section 9 625 Capable of settlement by arbitration 625 Formal requirements 626 A dispute within the scope of the agreement 629 The timing of the application 630 Null and void, inoperative or incapable of being performed 631 Null and void 631 Inoperative or incapable of being performed 632 No other conditions 632 The effect of a stay under section 9 634 Inherent jurisdiction 634 CHAPTER 23: THE LAW GOVERNING THE CONDUCT OF AN
ARBITRATION AND THE SCOPE OF THE COURT'S POWERS 637 23.1 Introduction 637 Preliminary remarks 637 The "delocalisation" theory 637 The importance of the seat of arbitration 638 23.2 The scope of the statutory provisions: general principles 640 23.3 The scope of the statutory provisions: cases where the seat of arbitration is in
England 641 Introduction 641 Internal aspects of the procedure 641 External aspects of the procedure 643 23.4 Scope of the statutory provisions: cases where the seat is abroad or no seat has
been designated or determined 645 23.5 Jurisdiction in proceedings ancillary to an arbitration 647 CHAPTER 24: THE LAW APPLICABLE TO THE MERITS OF A DISPUTE
REFERRED TO ARBITRATION 653 24.1 Introduction 653 Types of choice of law clause 653 Legal background 653 24.2 The position under the 1996 Act 654 Section 46 of the 1996 Act 654 The exclusion of section 46 655 The three circumstances envisaged by section 46 656 Choice of law 656 Choice of other considerations 657
Equity and good conscience: amiable composition and arbitration ex
aequo et bono 658
The lex mercatoria 658 Absence of choice 659 Cases where the arbitrator misapplies section 46 662 Where the right to appeal has not been excluded 662 Where the right to appeal has been excluded 662 The impact of mandatory rules 663 24.3 Arbitration and EC law 665