This collection of essays contains in-depth analyses of 22 landmark cases in private international law, from Penn v Lord Baltimore in 1750 to Brownlie v FS Cairo (Nile Plaza) LLC in 2021. The contributors are experts drawn from academia and practice as well as from the bench.
Case law has been a central driver in the legal development of the English conflict of laws. Judge-made law does not just supply a source of law itself but also acts as the crucible in which other sources of law – legislation, international Treaty, European regulation, and ideas generated by jurists such as Joseph Story and Albert Venn Dicey – have been tested and applied.
This book sheds new light on the past and future evolution of private international law by focusing on the landmark cases which have fundamentally shaped the way that we think about this subject. The focus is on the English common law, but landmarks in Scotland, Australia and Canada are covered as well. Many of them concern disputes between commercial parties; others deal with issues such as marriage and domicile; and some arise from controversies in political, constitutional and international affairs.
The landmark cases tackled in this collection address significant issues in civil jurisdiction, governing law, foreign judgments and public policy. The essays place those landmarks in their historical context, explain their contemporary importance and consider their future relevance.
Author(s): William Day; Louise Merrett (editors)
Series: Landmark Cases
Publisher: Hart Publishing
Year: 2023
Language: English
Pages: 500
City: Oxford
Foreword
Contents
List of Contributors
Table of Cases
Table of UK Legislation
Table of Overseas Legislation
Table of International Material
Introduction
1. Penn v Lord Baltimore (1750)
I. Introduction
II. The Events
III. The Chancery Litigation
IV. Penn v Lord Baltimore 1750–62
V. The Law of the Colonies
VI. The Application of Penn v Lord Baltimore
VII. Conclusion
2. Peninsular and Oriental Steam Navigation Company v Shand and Lloyd v Guibert (1865)
I. Background
II. Peninsular and Oriental Steam Navigation Company v Shand
III. Lloyd v Guibert
IV. The Effect of Lloyd v Guibert within the Law of Contract
V. The Ineffectiveness of Lloyd v Guibert Outside the Law of Contract (and a Disaster Averted)
VI. Conclusion
3. Bell v Kennedy (1868) and Udny v Udny (1869)
I. Construction of the Pillars
II. Embellishments
III. Weathering and Erosion
IV. Testing the Strength of the Twin Pillars
V. Conclusion
4. Godard v Gray and Schibsby v Westenholz (1870)
I. Godard, Schibsby and the Obligation Theory
II. Commonwealth and Other Common Law Authorities
III. Sound Theoretical Basis for the Modern Law?
IV. Conclusion
5. Phillips v Eyre (1870)
I. Introduction
II. Governor Eyre Controversy
III. Origin of the Rule in Phillips v Eyre
IV. The Common Law Legacy of Phillips v Eyre
V. The Contemporary Relevance of the Double-Actionability Rule in England
VI. Conclusion
6. Abouloff v Oppenheimer (1882)
I. Introduction
II. The Decision in Abouloff v Oppenheimer
III. Criticisms of the Abouloff Principle
IV. Extent of the Abouloff Principle
V. Fraud as a Defence to an English Judgment
VI. Conclusion
7. AM Luther Co v James Sagor & Co (1921)
I. The Background to the Decision
II. Luther v Sagor
III. Subsequent Legal Developments
IV. Recognition of Foreign Governments
V. Foreign Acts of State
VI. Conclusion
8. Government of India v Taylor (1955)
I. Introduction: The 'Revenue Rule'
II. Origins of the Rule
III. Government of India v Taylor
IV. Subsequent Developments
V. Skat
VI. Treaties and Statutory Provisions
VII. Conclusion
9. Taczanowska v Taczanowski (1957)
I. Introduction
II. Background
III. Orthodox Adherence to the Lex Loci Rule in the High Court
IV. Revolution in the Court of Appeal
V. Subsequent Development in the English Courts
VI. Impact of Taczanowska
VII. Critical Analysis of Taczanowska's Common Law Marriage Doctrine
VIII. Taczanowska and the Right of Marriage
IX. The Influence of Taczanowska on Other Common Law Jurisdictions
X. The Future of Taczanowska's Common Law Marriage Doctrine
XI. Conclusion
10. The Eleftheria (1970)
I. Introduction
II. Before the Eleftheria
III. The Eleftheria
IV. After the Eleftheria
V. Prevailing Practice
VI. Is this Forum Non Conveniens?
VII. Conclusion
11. Spiliada Maritime Corporation v Cansulex Ltd (1986)
I. Cases
II. Pilgrims
III. Spiliada
IV. After Spiliada
V. Conclusion
12. Société Nationale Industrielle Aérospatiale v Lee Kui Jak (1987)
I. Introduction
II. Historical Development of Anti-Suit Injunctions
III. The Laker Airways Cases
IV. Aérospatiale
V. Difficult Cases
VI. Brexit
VII. Conclusion
13. Morguard Investments Ltd v De Savoye (1990)
I. Introduction
II. The Decision
III. Legacies of the Decision
IV. Assessing the Decision
V. Conclusion
14. Akai v The People's Insurance Company (1996)
I. Introduction
II. Akai v The People’s Insurance Company
III. The Impact of Akai
IV. Conclusion
15. Canada Trust Co v Stolzenberg (No 2) (2002)
I. Introduction
II. The Decision in Canada Trust
III. Cases After Canada Trust
IV. More Recent Cases
V. To Decide or Not to Decide?
VI. Conclusion
16. Fiona Trust & Holding Corp v Privalov (2007)
I. Introduction
II. Arbitration Clauses Only – Or Jurisdiction Clauses More Generally?
III. Post-Brexit
IV. Kompetenz-Kompetenz
V. Expectations of Reasonable Parties
VI. Consent, Party Autonomy and the Protection of Third Parties
VII. Widening the Net – Extending Matters to Non-Parties
VIII. Relevance of the Ambit of the Jurisdiction or Arbitration Clause
IX. Some Conclusions
17. Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb (2020)
I. Introduction
II. The Facts in Enka v Chubb
III. The Decision in Enka v Chubb
IV. Critique
V. Anti Suit Injunction
VI. The Future
18. Brownlie v Four Seasons Holdings Inc (2017) and Brownlie v FS Cairo (Nile Plaza) LLC (2021)
I. Introduction
II. Relevant Background
II. Revised Standard of Proof For Jurisdictional Facts
IV. The Ambit of the Tort Gateway
V. The Merits Test in Claims Governed by Foreign Law
VI. Jurisdiction Reform
19. Future Landmarks: Scanning the Horizon
I. Introduction
II. The Past was Once the Future
III. The Past Speaks to the Future
IV. A New, New Thing?
V. Repairing the Fabric
VI. A Choice of Law Revival?
VII. New Horizons?
VIII. Reach for the Stars
Index
