CONFLICT OF LAWS 1st Semester 2005

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CONFLICT OF LAWS1st Semester 2005

• INTRODUCTION

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CONTACT DETAILS

• Lecturer
• Rowena Cantley-Smith
• Room 438, Faculty of Law
• Email Rowena.cantleysmith_at_law.monash.edu.au
• Consultation Times
• General consutlations Tuesdays, 3.30pm 5.30pm
• Other times by appointment only

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LECTURES

• Lecture Times Venues
• Tuesdays 8.30am10.00am (CLAY L5/12)
• Thursdays 8.30am10.00am (CLAY SG01/11)
• Nature Structure of Lectures
• Class preparation participation expected
• Interactive with regular class discussions

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ASSESSMENT

• Assessment Choice
• 60 Optional Essay 40 Exam (TBA)
• OR
• 100 Exam (3 hours 30 mins reading/noting)

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OPTIONAL ESSAY

• Information on the optional essay is set out in
  the course materials provided to students in this
  lecture.
• Students should familiarise themselves with this
  information and advise the lecturer of their
  choice by the end of lectures in Week 2.

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Assignment Completion Dates

• See information in course materials provided.

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CONSULTATION EMAIL ETIQUETTE

• Consultation times have been noted already in
  Slide 2
• All requests for assistance and questions
  regarding the subject matter of this unit must be
  made in person or by email
• Frivolous emails will not be answered, eg. asking
  for case names and so on.

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CONSULTATION EMAIL ETIQUETTE

• Before coming to see me, or sending me an email,
  you are required to make an effort yourself to
  find the answer to your question. This will
  involve usual legal study practices including
  reading the materials set out in the reading
  guide as well as undertaking preliminary research
  on the matter in issue.
• Students attending for consultations regarding
  the subject matter of the unit are therefore
  required to bring with them the following
• Notes/summaries made on relevant topics and
• A list of cases, other primary sources, text
  books and/or other materials consulted.

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ASSISTANCE WITH PROBLEMS

• When you do come for a consultation, you will
  also be expected to be able to advise me of the
  following
• What is the actual question or problem?
• What difficulties you are experiencing?
• What research you have done (see list on previous
  slide)?

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Books Reading Materials

• Prescribed Textbook
• Tilbury, M., Davis, G., Opeskin, B.
• Conflict of Laws in Australia
• 2002, OUP, Australia
• Referred to as TDO in the Reading Guide
• Available in Legibook

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Recommended Texts

• Davies, M., Ricketson, S., Lindell G., Conflict
  of Laws Commentary and Materials, Butterworths,
  Australia, 1997. (Referred to as MRL in the
  Reading Guide).
• Nygh, P., Davies, M., Conflict of Laws in
  Australia, 7th ed., 2002, Butterworths Australia.
  (Referred to as ND in the Reading Guide).

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INTRODUCTION

• 1.1 Nature and Scope
• 1.2 Origins and Theories of Conflict of
• Laws
• 1.3 Sources of Law
• 1.4 Terminology

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1.1 Nature and Scope

• What is Conflict of Laws
• When will a Conflict of Laws arise?
• Scope of Conflict of Laws
• Why the different nomenclature Conflict of Laws
  or Private International Law?

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1.1 Nature and Scope (ctd.)

• How is Conflict of Laws to be distinguished from
  other international law subjects?
• What are Law Districts or Law Areas?

• What are the stages of a Conflict of Laws
  problem?
• When will a Conflict of Laws arise in Australia?
• Resolving Federal/State Conflicts

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What is COL?

• Conflict of laws in deals with cases that contain
  foreign elements
• Intra-national
• International
• Consider issues that arise for Victorian Courts
  when such elements are present

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What is COL?

• Such cases engage the court in a resolution of at
  least one of three issues
• Whether or not the forum court has jurisdiction
  to decide the case
• What law applies to resolve the issues in the
  case
• Whether or not a foreign judgement should be
  recognised and enforced in the forum.

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Distinguish From Other Laws

• Public International Law
• Conflict of Laws
• Comparative Laws

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Public International Law

• Transnational
• Supranational
• Exists independently of the legal systems of the
  various law areas
• Governs sovereign nations not private parties

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COL

• Conflict of laws is part of the national domestic
  or municipal law
• It differs from law area to law area
• Overlap due to increasing international
  conventions principles

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Law Areas/Districts

• Within the Australian federation, each State and
  Territory is a law district for the purposes of
  the conflict of laws.
• The Commonwealth itself is a separate law
  district where it possesses a general body of law
  dealing with a subject within its legislative
  competence.
• Australia is a single law area with respect to
  matters falling within federal jurisdiction.

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Stages of Conflicts Problem

• 1. Jurisdiction
• Can this court decide this case?
• Should this court decide this case?
• 2. Judgements
• What effect, if any should be given to the
  judgement of another court?
• Recognition and/or Enforcement?
• 3. Choice of law
• Should the court apply a foreign law to
  determine the rights and obligations of the
  parties in this case?

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Conflicts within Australia

• Common law choice of law rules form the starting
  point of any consideration of the rules
  applicable to conflicts between the laws of the
  various Australian jurisdictions.
• The common law rules may, however, require
  development to comply with constitutional
  imperatives and the statutory regimes derived
  from them.

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Intranational vs International

• Intranational conflicts within Australia
• Interstate (eg Qld vs NSW)
• Inter-territory (eg ACT vs NT)
• International conflicts involving a foreign
  country (eg Australia vs UK)

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Intranational vs International conflicts
(continued)

• Pfeiffers case at 627
• Before turning to the facts, it is important to
  note that the issue arises in a federal context,
  and not in an international context. We put
  issues that might arise in an international
  context entirely to one side

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Hypothetical Example - Commercial Case (see TDO
4)

• A purchaser in Melbourne buys a crane from a
• French manufacturer. After delivery, the crane is
• found to be latently defective as is therefore
  not of
• merchantable quality. The Australian purchaser
• brings an action against the French seller in the
• Supreme Court of Victoria.

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Hypothetical Example - Family Law case (see TDO
4)

• Imran was born and raised in Pakistan. He came
  to Australia
• as a student some years ago and brought one of
  his wives,
• Asma, with him. Before he came to Australia he
  had married
• twice. Both marriages were valid and recognised
  in Pakistan
• and the other wife, did not come with him to
  Australia. He
• now wishes to commence divorce proceedings in the
  Family
• Law Court of Australia to dissolve his marriage
  to Ayesha.

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1.2 Origins and Theories of Conflict of Laws

• History
• Theories
• Vested rights
• Local Law
• UK European
• American
• Rule selection vs jurisdiction selection
• True False Conflicts
• Reading (as per reading guide)
• TDO pp.1-35
• DRL, Ch 1 Cheshire Norths Private
  International Law (photocopies provided)
• N D, Ch 1.

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1.3 Sources of COL

• Cases
• Statutes (e.g. SEPA, FJA)
• Rules of Court (e.g. SCV Rules)
• Constitution
• International Conventions
• Academic Writings

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Sources of conflict

• Foreign elements
• Different places
• Different legal systems rules
• Different courts
• Conflict of laws the body of rules principles
  dealing with foreign elements in legal problems
• Foreign elements must be significant

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1.4 Terminology

• See attachment to end of Reading Guide