22
Reasons for and basis of the conflict of laws

One might ask, why does private international law exist at all? Why should not an English court assume jurisdiction over any case which is referred to it? There are two answers to this. First, a great injustice might be done to a foreigner, who is abroad and who has not agreed to submit to the English court a dispute arising from a transaction which is unconnected with England, by summoning him before that court and so placing him in the dilemma that either he has to incur the inconvenience and expense of coming here to defend his interests or he has to run the risk of a judgment being given against him in his absence and so putting in peril assets he may posses here.1 The second is that the assumption of jurisdiction and determination of rights might well be a waste of effort, in particular if it results in making orders affecting property abroad which the court has no means of enforcing.2

A more difficult question to answer is, why should an English court ever apply foreign laws? Why should it not always apply English law? After all, the parties have come before an English, not a foreign, court. English lawyers and judges know English law; at any rate they know it better than they know foreign laws. It may be difficult for the English court to discover satisfactorily what the relevant rule of foreign law is.3 The answer is that the application of English law might work a grave injustice. If the parties to a contract have selected French law to govern their rights and liabilities under it, and have regulated their positions on the assumption that it does govern, it would in most cases be wholly wrong for an English court to impose different rights and duties on them by applying English law. Or if, for example, two persons have gone through a ceremony in France which makes them man and wife,

____________________
1
see the remark of loard diplock in amin rasheed shipping corporation v. kuwait insurance co.[1984] ac 50 at 67–h8
2
This is the reason for the rule that the court will not take jurisdiction over a case which requires it to determine title to foreign land. (There are exceptions to this however.) See pp. 262–4 above.
3
See, for example, Wynn-Parry J in Re Duke of Wellington [1948] Ch. 118, p. 23 above.

-377-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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