ENGLISH FOR STUDENTS OF PRIVATE INTERNATIONAL LAW

МИНИСТЕРСТВО ОБРАЗОВАНИЯ И НАУКИ РОССИЙСКОЙ ФЕДЕРАЦИИ
ГОСУДАРСТВЕННОЕ ОБРАЗОВАТЕЛЬНОЕ УЧРЕЖДЕНИЕ
ВЫСШЕГО ПРОФЕССИОНАЛЬНОГО ОБРАЗОВАНИЯ
«МОСКОВСКИЙ ГОСУДАРСТВЕННЫЙ ЮРИДИЧЕСКИЙ УНИВЕРСИТЕТ
ИМЕНИ О.Е. КУТАФИНА (МГЮА)»
КАФЕДРА АНГЛИЙСКОГО ЯЗЫКА №1
Т.Д. Витлинская, Н.М. Головина, А.В. Дорошенко,
Г.Н.Ермоленко, Н.Г. Шепелева
ENGLISH FOR STUDENTS OF PRIVATE INTERNATIONAL
LAW
УЧЕБНО-МЕТОДИЧЕСКОЕ ПОСОБИЕ
ПО ЧТЕНИЮ И РЕЗЮМИРОВАНИЮ
МОСКВА 2013
МИНИСТЕРСТВО ОБРАЗОВАНИЯ И НАУКИ РОССИЙСКОЙ ФЕДЕРАЦИИ
ГОСУДАРСТВЕННОЕ ОБРАЗОВАТЕЛЬНОЕ УЧРЕЖДЕНИЕ
ВЫСШЕГО ПРОФЕССИОНАЛЬНОГО ОБРАЗОВАНИЯ
«МОСКОВСКИЙ ГОСУДАРСТВЕННЫЙ ЮРИДИЧЕСКИЙ УНИВЕРСИТЕТ
ИМЕНИ О.Е. КУТАФИНА (МГЮА)»
КАФЕДРА АНГЛИЙСКОГО ЯЗЫКА №1
Т.Д. Витлинская, Н.М. Головина, А.В. Дорошенко,
Г.Н.Ермоленко, Н.Г. Шепелева
АНГЛИЙСКИЙ ДЛЯ ИЗУЧАЮЩИХ МЕЖДУНАРОДНОЕ
ЧАСТНОЕ ПРАВО
УЧЕБНО-МЕТОДИЧЕСКОЕ ПОСОБИЕ
ПО ЧТЕНИЮ И РЕЗЮМИРОВАНИЮ
МОСКВА 2013
Под редакцией
и.о. зав. кафедрой английского языка №1 МГЮУ
кандидата филологических наук, доцента А.В. Дорошенко
Рецензент кафедры:
кандидат филологических наук, доцент В.В.Пикалова
Рецензенты Методического совета:
доцент Т.Д. Витлинская, доцент А.С. Влахова
Пособие утверждено
на заседании кафедры английского языка №1.
Протокол № 6 от 23.01.2013 г.
СОДЕРЖАНИЕ
Введение
Unit 1. Domicile
Part I
Part II
Unit 2. Jurisdiction of US Courts
Part I
Part II
Unit 3. Choice of Law Rules
Part I
Part II
Unit 4. Substance and Procedure
Part I
Part II
Unit 5. Recognition and Enforcement of Foreign Judgments
Part I
Part II
Unit 6. Arbitration
Part I
Part II
Unit 7. Property inter vivos
Part I
Part II
Unit 8. Succession in Conflict of Laws
Part I
Part II
Unit 9. Family Law in Conflicts
Part I
Part II
Answer Key
Введение
Пособие “English for Students of Private International Law” предназначается для
студентов
старших курсов международно-правовых институтов и факультетов,
изучающих английский язык в профессиональных целях и овладевших умениями и
навыками речевой деятельности на уровне выше среднего. Кроме того, пособие может
быть рекомендовано выпускникам юридических вузов для самостоятельной подготовки к
вступительным экзаменам в аспирантуру, аспирантам и магистрантам, а также широкой
аудитории специалистов, интересующихся международной частноправовой тематикой и
стремящихся овладеть стратегией и приемами чтения и реферирования текстов данного
профиля в оригинале.
Цель. Предлагаемое пособие составлено в соответствии с требованиями
Государственного образовательного стандарта высшего профессионального образования к
конечному уровню владения иностранным языком и ставит своей целью сформировать у
студентов коммуникативную компетенцию в чтении и реферировании на уровне,
который позволит им свободно читать и понимать специальную оригинальную
литературу и оформлять извлеченную из текста-источника информацию в письменном
виде в качестве вторичного документа (план-конспект, резюме и реферат).
Повышение уровня коммуникативной компетенции в чтении и реферировании как
необходимое условие достижения указанных целей обеспечивается включением в
учебные материалы пособия аутентичных неадаптированных текстов по изучаемому
профилю специальности, на основе которых совершенствуются и закрепляются ранее
приобретенные знания и навыки и осваиваются и активизируются более сложные
профессионально значимые комплексные умения, включая следующие:
 владеть основными видами чтения тематически и лингвистически сложных
объемных оригинальных текстов (изучающее, просмотровое, ознакомительное,
поисковое), предполагающими различную степень полноты и точности понимания
прочитанного;
 уметь гибко сочетать основные виды чтения в соответствии с конкретной
ситуацией общения;
 уметь самостоятельно выбирать вид чтения и варьировать его характер в
зависимости от целевой установки, сложности и информативной значимости
исходного текста;
 уметь вычленять опорные смысловые блоки;
 выделять основные мысли и факты;
 уметь находить логические связи;
 прогнозировать содержание текста или его фрагментов по значимым компонентам:
заголовкам и подзаголовкам, первым предложениям и т.д.;
 уметь составлять вторичные тексты на основе текста-источника в соответствии с
конкретным коммуникативным заданием.
В задачи пособия также входит совершенствование лексико-грамматических
навыков применительно к изучаемому языковому и речевому материалу. Особое
внимание уделяется расширению словарного запаса общенаучной и терминологической
лексики и усвоению лексико-грамматических и структурно-грамматических элементов
письменной речи (speech connectors), необходимых для построения целостных, связных и
логических высказываний.
Отличительной особенностью пособия является наличие в нем системы
упражнений с целевой установкой на поэтапное и комплексное развитие навыков
реферирования как особого вида профессиональной письменной коммуникации.
Текстовой материал, используемый в пособии, заимствован из современной англоамериканской специализированной научной и учебно-научной литературы по
коллизионному (международному частному) праву без адаптации с небольшими
сокращениями
в учебных целях. При отборе текстов авторы руководствовались
общепринятыми в лингводидактике критериями функциональной и содержательной
аутентичности. Все тексты сохраняют авторскую оригинальность и жанровую
принадлежность функциональному стилю научной речи с типичными для изучаемого
подъязыка лексическими средствами и сложными синтаксическими конструкциями.
Языковая сложность отобранного текстового материала является важным условием
развития лингвистической компетенции в чтении и реферировании как основы
формирования речевых умений на уровне, необходимом для реализации поставленных
задач.
В содержательном плане тексты знакомят студентов с ключевыми понятиями и
категориями основных отраслей и институтов коллизионного права, дают представление
об особенностях англо-американской доктрины и практики коллизионного регулирования
частноправовых споров, тем самым расширяя и углубляя профессиональные и фоновые
знания, благодаря которым развивается социокультурная компетенция учащихся как
необходимый компонент профессиональной компетентности будущего юристамеждународника. Следует также заметить, что лингвострановедческие знания,
приобретаемые студентами в результате активного усвоения и осмысления учебных
материалов пособия, формирует у них способность и готовность к межкультурному
взаимодействию в поликультурной профессиональной среде.
Обобщая, можно сказать, что содержание и характер учебного материала,
ориентированного на стимулирование познавательной деятельности и активизацию
мышления студентов, создают благоприятные условия для вовлечения студентов в
мотивированную учебную деятельность в условиях, приближенных к реальной
коммуникации, что повышает эффективность учебного процесса и способствует
реализации практических, общеобразовательных и профессиональных целей обучения
иностранному языку.
Содержание пособия. Пособие состоит из предисловия, 9 уроков (units) и ключей
к упражнениям. Оно построено по тематическому принципу, обусловленному предметнопонятийной логикой данной отрасли права. Порядок презентации учебных тем,
предлагаемый авторами пособия, в целом, соответствует последовательности изложения
материала, который принят в систематических курсах коллизионного права в странах
изучаемого языка, что является дополнительным фактором мотивации при работе с
текстами и повышает их познавательную ценность:
1. Домициль в англо-американском коллизионном праве, основные виды и сферы его
применения.
2. Понятие и структура коллизионной нормы.
3. Подсудность гражданско-правовых споров.
4. Материальные и процессуальные частноправовые нормы.
5. Признание и исполнение иностранных судебных решений.
6. Международный арбитраж.
7. Коллизионные принципы регулирования отношений собственности.
8. Наследственные отношения в коллизионном праве.
9. Брачно-семейные отношения в коллизионном праве.
Структура урока. Учебный материал каждого урока в соответствии с решаемыми
задачами и формами организации обучения разделен на 2 части: основную (обозначенную
как Part I) и дополнительную (Part II) . Основная часть объединяет предтекстовый словарь
терминологической и общенаучной лексики, текст объемом не менее 4000 печатных
знаков и систему специально разработанных упражнений. Большая часть материалов
основной части предназначена для активного усвоения в аудитории под руководством
преподавателя. Вторая, дополнительная часть, которая также включает словарь с
ключевой терминологией, расширяющий и углубляющий основную тему урока текст
объемом не менее 4500 печатных знаков и систему упражнений, может быть использована
для организации самостоятельной работы учащихся как аудиторной, так и внеаудиторной.
Упражнения, представленные в пособии, можно разделить на 4 вида, каждый из которых
соотносится с определенным этапом работы над текстом, при этом все вместе они
образуют целостную систему заданий, которые организуют обучение чтению как
активную практику в речевой деятельности. Такой подход позволит студентам овладеть
навыками беспереводного понимания специальных неадаптированных текстов на основе
самостоятельного анализа содержания прочитанного и умениями оформлять извлеченную
информацию с учетом поставленной перед ними коммуникативной задачей.
Блок упражнений под рубрикой ''Reading Comprehension'' содержит задания,
нацеленные на решение целого ряда взаимосвязанных задач на этапе, предваряющем
чтение текста: развитие коммуникативной мотивации, актуализация личного опыта
студентов, прогнозирование содержания текста, а также снятие различного рода языковых
трудностей.
Здесь же имеются так называемые потекстовые задания с коммуникативной
установкой на определенный темп чтения, соответствующую степень полноты и точности
понимания читаемого текста. Упражнения данного блока обеспечивают контроль уровня
владения разными видами чтения и способствуют дальнейшему совершенствованию
умений понимать и осмысливать прочитанный текст с целью выполнения поставленных
задач.
Следующий этап представлен упражнениями под рубрикой ''Vocabulary Work'',
которые построены на использовании разных форм работы с языковым материалом.
Лексические и грамматические знания и навыки, приобретаемые в результате выполнения
заданий данного блока, обеспечивают формирование лингвистической, дискурсивной и
прагматической компетенций на уровне, необходимом для структурно-смысловой
интерпретации и анализа прочитанного текста как основы для построения устных и
письменных высказываний в соответствии с конкретной ситуацией общения и
коммуникативными намерениями.
В группу послетекстовых упражнений также входят задания под рубрикой
''Analytical
Reading'', которые нацелены на развитие, закрепление и дальнейшее
совершенствование навыков изучающего чтения. Овладение умением полно и точно
понимать содержание прочитанного текста и критически оценивать полученную
информацию являются необходимым этапом в подготовке студентов к реферированию и
резюмированию.
На заключительном этапе выполняются упражнения под рубрикой ''Summarising'',
предназначенные для формирования коммуникативных умений письменной формы
общения, а именно: умение составить план или конспект прочитанного текста и изложить
содержание прочитанного в форме резюме или реферата.
Методическая концепция пособия и практические рекомендации. При
составлении пособия авторы постарались учесть современные методические принципы
преподавания иностранных языков в высших учебных заведениях. Цели и задачи пособия
определены с позиций компетентностного подхода и в соответствии с требованиями
профессиональной направленности обучения иностранному языку. Принцип
коммуникативного обучения реализован в системе речевых и творческих упражнений и
заданий, ориентированных на развитие практических умений и навыков в различных
видах речевой коммуникации на интегрированной и комплексной основе с учетом
специфики каждого из них.
Количество часов, необходимое для освоения учебного материала каждого урока,
определяется преподавателем в зависимости от конкретных целей обучения, условий
обучения и уровня подготовки студентов. Опыт показал, что материал пособия можно
успешно проработать за 30 аудиторных часов.
Рекомендуется изучать все уроки в предлагаемой авторами последовательности,
так как, следуя естественной логике специального предмета ''Коллизионное право'', они
раскрывают данную область права в том виде, как она понимается в странах изучаемого
языка.
Структура урока и система упражнений позволяет преподавателю использовать
разные образовательные технологии, разумно сочетая аудиторные и внеаудиторные
самостоятельные формы организации учебной деятельности студентов.
UNIT I
DOMICILE
Legal Terms
1.
domicile
домицилий, домициль (может не совпадать
со страной, резидентом которой является
данное лицо; может быть официальным
местом совершения платежей по векселям и
иным долговым обязательствам)
1.1
domicile of choice
избранный домицилий
1.2
domicile of dependence
домицилий находящихся на иждивении
1.3
domicile of origin
первоначальный домицилий, домицилий по
рождению
1.4
domicile by operation of law
законный домициль, домициль по закону
1.5
adopt a domicile
принять домициль
1.6
ascribe a domicile (to)
приписать домициль
1.7
abandon a domicile
покинуть домициль, отказаться от домициля
1.8
acquire a domicile
получить, приобрести домициль
1.9
forfeit domicile
лишить права на домициль
1.10
obtain a domicile
получить домициль
1.11
establish a domicile
установить домициль
2.
legal tool
правовой инструмент
3.
locality
место, местность, местоположение; зд.
правовая система
4.
legal conclusion
юридическое заключение, заключение суда
5.
hold smb subject to a jurisdiction
подвергать, подчинять кого-либо
юрисдикции
6.
permanent home
место постоянного проживания
7.
judicial task
судебная задача, работа судей
8.
law district
юрисдикция
9.
connecting factor
коллизионная привязка
10.
involuntary absence
непреднамеренное, вынужденное отсутствие
11.
convincing proof
убедительное доказательство
12.
residence
место жительства, проживания
13.
continuity of domicile
непрерывность, преемственность домициля
14.
principle place of business
официальный адрес, официальное
местонахождение (юридического лица)
15.
(il)legitimate
(не)законнорожденный
16.
adjudicate smb an incompetent
признавать кого-либо (в судебном порядке)
недееспособным
17.
requisite intent
требуемое, необходимое намерение
18.
rebuttable presumption
опровержимая презумпция
19.
Restatement (Second) of Conflict of свод норм коллизионного права (второй
пересмотр)
Laws
20.
mental capacity
умственные способности
21.
governing law
регулирующее право, применимое право
22.
forum
суд, судебный форум
23.
characterization
квалификация
24.
renvoi
(обратная) отсылка
25.
personal law
личный закон
26.
multiple controversy
трансграничный спор, трансграничная
коллизия
27.
personam jurisdiction
юрисдикция, распространяющаяся на
обязательственные иски
28.
chattels
движимое имущество
Other Vocabulary Items
1.
ensure predictability
обеспечить предсказуемость
2.
coincide
совпадать
3.
interchangeably
взаимозаменяемо
4.
in the interim
временно, между тем, в промежутке
5.
foundling
найденыш, подкидыш
6.
tenacious
крепкий, прочный, сильный, цепкий
7
notwithstanding
хотя; несмотря на то, что; вопреки; тем не
менее
8.
irrespective of
несмотря на
Reading Comprehension
Exercise 1. Judging by the title of the text, what information would you expect to find in it?
Exercise 2. Answer the questions and discuss your answers with the class.
1.
2.
When does the problem of domicile arise?
What are the main grounds to determine domicile?
Exercise 3. Skim Text 1 and read out the subheadings. What legal problems may they deal
with?
Exercise 4. Read the part of the text entitled Domicile in General and answer the questions.
1.
2.
What is the importance of the term “domicile”?
What types of domicile are mentioned in this part of the text?
Exercise 5. Read Text 1 and decide whether the statements are true or false.
1. Domicile states that there is a sufficient "contact" or relationship between the person and
the particular state or country.
2. Each country consists of one law district.
3. Inability of anyone to be without a domicile makes domicile preferable as a connecting
factor for determining the personal law to any other.
4. No one can have more than one domicile at the same time; he can, however, have more
than one residence, home or nationality.
5. In resolving the issue of domicile, the governing law is that of the state where the suit is
brought.
6. For choice-of-law problems the party's domicile may be deemed the least important
"contact."
Text 1. Domicile
(Abridged from Conflict of Laws by J. G. Collier and www.gilbertsummaries.org)
Domicile in general. Domicile is the "legal tool" employed to attach a person to a
particular locality (legal system) for some particular purpose, or the legal conclusion that states
that there is a sufficient "contact" or relationship between the person and the particular state or
country so that its laws may be applied to the person's affairs or its courts may hold him subject
to its jurisdiction. Typically, a person is considered domiciled at his “permanent home” (the
"place" where the person has been physically present and intends to remain indefinitely). This
seems clear enough, but the view that a person’s domicile is what he regards as his permanent
home is far too simplistic and, indeed, somewhat misleading. Traditionally, the concept of
domicile was considered a useful legal tool in establishing a connection between a person and
state since it ensured predictability of results and simplified judicial tasks. Under the modern
approach, a person may very well be considered domiciled in different states for different
purposes at the same time. For example, a student attending college away from home can
establish domicile for voting purposes, even though his parent's home remains his domicile for
other purposes. A person must be domiciled in a “law district”. A law district coincides with a
state such as France, Italy or Germany if that state possesses only one system of law. But this is
not so if the state is a federal state or one which, like the United Kingdom, contains several
different districts, each having its own legal system. No person can be without a domicile. A
domicile is ascribed to a person by law as his domicile of origin or of dependence. He will keep
such a domicile unless and until he acquires another by choice, and if he abandons a domicile of
choice his domicile of origin will revive and be his domicile unless and until he acquires another
domicile of choice. This inability of anyone to be without a domicile is a feature of the English
law, which makes domicile preferable as a connecting factor for determining the personal law to
any other, since a person can be without a residence, a home or a nationality. Another advantage
is that no one can have more than one domicile for one purpose at the same time; he can,
however, have more than one residence, home or nationality (these general principles were first
clearly enunciated by Lord Westbury in Udny v. Udny in 1869).
“Domicile” vs. “Residence”. The term "domicile" signifies more than mere physical
presence; it is an individual's "legal home." "Residence", on the other hand, is defined as mere
physical presence within the state. "Residence" has no requirement of intent; i.e., mere physical
presence is sufficient to establish residence. Despite this distinction, the terms "residence" and
"domicile" are often used interchangeably.
Under the long-standing view, a present domicile remains until a new domicile is
acquired - i.e., until both the intent and physical presence requirements are satisfied. For this
reason, a person can have only one domicile at a time, and it is impossible to be without a
domicile. Involuntary absence does not forfeit domicile: Persons imprisoned or committed to an
institution in another state are still held domiciled at their homes. Likewise, persons entering
military service retain their last civilian domicile, no matter how long they are away, unless there
is clear and convincing proof of adoption of a new domicile in the interim. This continuity of
domicile is another distinction between "residence" and "domicile” since a person does lose his
"residence" when he moves out of the state.
The domicile of a business is the address where the establishment is maintained or where
the governing power of the enterprise is exercised. For purposes of taxation, it is often a
principle place of business.
There are three basic types of domicile: (i) domicile of origin; (ii) domicile of choice; (iii)
domicile of dependence.
(i). Domicile of origin. Every person must have a domicile and thus, at birth, an infant is
assigned a domicile of origin. The domicile of origin is the domicile of the parents—of the father
if the child is legitimate, of the mother if the child is illegitimate. (Basically, the domicile of
origin is a domicile by operation of law). 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.
(ii). Domicile of choice. This is the most important type of domicile, involving a person's
intentional selection of a "legal home". A domicile of choice may be acquired wherever a person
legally capable of obtaining his own domicile establishes (1) some physical presence in a new
location, (2) with the unconditional intent to remain there indefinitely.
To change domicile, a person needs only exhibit sufficient understanding to voluntarily
choose a new residence. Thus, even a person adjudicated an incompetent (i.e. no capacity to
contract or make a will) may be capable of changing domicile. Whether a person has the
requisite intent to remain indefinitely at the place he resides is determined by his words and
conduct. In this regard, "actions often speak louder than words." If a person by his conduct
indicates the intent to remain indefinitely at his residence in a state, he may be held to be
domiciled there notwithstanding frequent oral or written statements of intent to be domiciled
elsewhere. If a person evidences his intent to remain indefinitely where he resides, he will be
held domiciled there even if it turns out that he was mistaken about where he lived. If a person
has more than one dwelling place, his "principal home" is his domicile. If it is impossible to
determine which is his "principal" home, domicile will be whichever of the homes was first
acquired.
(iii). Domicile of dependence. Certain domiciles arise irrespective of intention by
operation of law. Some individuals, such as married women, minors, and incompetent persons,
traditionally have lacked the capacity to acquire a domicile of choice during the period of their
incapacity. In such cases, the law determines the individual’s domicile. Today, many courts in
England retain a presumption that a wife's domicile is that of her husband, but the presumption is
rebuttable. The Restatement (Second) of Conflict of Laws provides that a married woman
chooses her domicile. Generally, the domicile of a minor, like domicile of origin, is that of the
father, if the minor is legitimate. Where the father is dead or the minor is illegitimate, the child
takes the domicile of the mother. If the parents separate, a minor's domicile is with the parent
having custody. If both parents die, a minor generally will be held domiciled with the relatives or
guardian with whom the child lives. A minor cannot establish a domicile of choice unless
emancipated (i.e., released from parental care by marriage or economic independence).
As indicated above, relatively little mental capacity is required to establish a domicile by
choice. A person who lacks even this minimal competency to choose a home will retain the
domicile of his parents or guardians.
Resolving the issue of domicile. In resolving the issue of domicile, the governing law is
that of the forum (the state in which the suit is brought). This is true even where the domicile is
in another state or country. This is the doctrine of "characterization," under which the forum
applies its own laws as to the definition of terms because (i) the local tribunal is better able to
handle a problem if it can apply its own concepts and definitions, and (ii) this doctrine helps
avoid renvoi problems. The effect of the characterization doctrine often has been to negate any
attempt to achieve uniform results in multistate controversies.
Domicile and choice-of-law problems. Domicile is significant for both jurisdictional and
choice-of-law purposes. As far as the jurisdictional basis is concerned, domicile is an accepted
basis for in personam jurisdiction over an individual and is also the principal basis for
jurisdiction in matters concerning personal status—e.g., divorce. For choice-of-law problems,
where the issue is the law to be applied to a particular transaction that has "contacts" with
various states, the party's domicile may be deemed the most important "contact." For example, if
a person is domiciled in State X, its laws will normally govern the inheritance of his chattels
even though his death occurs in State Y and the chattels are located at all times in State Z; and
this is true whether the matter is litigated in X, Y, Z, or some other state altogether.
Vocabulary Work
Exercise 6. Read the text and suggest Russian equivalents of the following word combinations.
Mind that in most cases there is no word-for-word correspondence.
attach a person to a particular locality; be applied to the person’s affairs; intend to remain
indefinitely; far too simplistic and somewhat misleading; preferable as a connecting factor; be
clearly enunciated; sufficient to establish residence; forfeit domicile; committed to an institution;
retain one’s civilian domicile; exercise the governing power; legally capable of obtaining one’s
own domicile; choose voluntarily; determined by one’s words and conduct; unless emancipated;
lack minimal competency
Exercise 7. Read the text and suggest English equivalents of the following word combinations.
правовой инструмент; юридическое заключение; остаться на неопределенное время;
вводящий в заблуждение; упрощать судебные задачи; в соответствии с современным
подходом; возобновляться, делать предпочтительным; установить место проживания;
использовать взаимозаменяемо; в соответствии с давно существующей точкой зрения;
находящийся в местах лишения свободы; домициль в силу закона; в результате
усыновления; намеренный (зд. обдуманный) выбор;
право- и/или дееспособный;
признанный по суду недееспособным; опека, опекунство (одного из родителей);
относительно небольшие (довольно посредственные) умственные способности; избегать
проблем с обратной отсылкой; наследование движимого имущества
Exercise 8. Match the legal terms (1 - 3) with their definitions (a - c) and use legal terms
(domicile, residence, in personam jurisdiction) to fill in the gaps in the sentences below.
1.
domicile
A.
the state of living in a particular place
2.
residence
B.
jurisdiction over the person or the defendant necessary
where the action is against the person
3.
in personam jurisdiction
C.
an individual’s permanent home or principle
establishment, especially when it is stated for official or
legal purposes
1. … … … is a legal fiction connecting persons to specific localities for particular purposes.
2. … … … refers to the power of a court to enter a binding judgment against a person or
other legal entity.
3. … … … requires physical presence within a state and intent to remain there indefinitely.
4. … … … merely requires physical presence in a particular place.
5. 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 a … … … there.
Exercise 9. Fill in the gaps in the cloze-test.
Domicile as a social bond
Domicile denotes a social, not a _____1____, attachment to a particular country. This is shown
by cases which concerned persons who became _____2_____ in a state or persons who were
_____3_____ or were subject to possible ____4______. If a person becomes naturalized in a
country this may be ____5_____ of his intention ___6_____ a domicile there, but it may not
necessarily be so. He may want to become ____7____ of one state without wishing altogether
____8_____ his social ties with the country of his domicile.
_____9____ who is liable to be deported from England, and whose stay here may, therefore, be
_____10___, may nevertheless intend to stay in England and make it his permanent home so far
as he is able to do so.
However, an ___11_____ entrant to England cannot acquire a domicile here. This is a rule based
on English _____12_____; an English court might well hold that an illegal entrant to another
country had obtained a domicile there.
1.
A. personal
B. political
C. permanent
D. requisite
2.
A. naturalized
B. native
C. negative
D. new
3.
A. disguised
B. dead
C. deported
D. deprived
4.
A. deportation
B. death
C. disguise
D. deprivation
5.
A. witness
B. evidence
C. tool
D. clue
6.
A. to acquire
B. to assign
C. to abandon
D. to arise
7.
A. a refugee
B. an immigrant
C. a national
D. an alien
8.
A. to have
B. to sever
C. to connect
D. to negate
9.
A. An alien
B. A citizen
C. A hostage
D. A head-hunter
10. A. indefinite
B. cut short
C. prolonged
D. neglected
11. A. reasonable
B. lawful
C. legal
D. illegal
12. A. conscience
B. common sense
C. public policy
D. private affairs
Exercise 10. Render the sentences into English preceding them with the suggested speech
connectors.
Presumably
1.
2.
3.
4.
5.
6.
7.
..................., домицилий – это юридическое заключение (заключение суда), которое
устанавливает наличие достаточной связи между определенным лицом и
государством, законы которого могут применяться к делам этого лица.
Термин «домицилий» имеет более широкое значение, чем физическое
(фактическое) присутствие. Термин «место жительства», …………, означает
фактическое присутствие в стране. ……………. эти термины часто используются
взаимозаменяемо.
……………. при рождении ребенку присваивается домицилий родителей: отца –
если ребенок рожден в браке, и матери – если ребенок рожден вне брака.
................... дееспособное лицо может приобрести домицилий по выбору, если оно
фактически присутствует на новом месте и выражает намерение остаться в этом
месте на неопределенное время.
…………… домицилий может быть присвоен независимо от намерения лица в
соответствии с законом.
……………. при разрешении вопросов, связанных с домицилием, применимым
правом является закон суда (право государства, в котором подан иск).
……………. при решении проблем, связанных с выбором применимого права,
домицилий может признаваться самой существенной «связью».
Analytical Reading
Exercise 11. Does the Russian legislation treat the concept of domicile similarly to common law
countries?
Exercise 12. Find the definition of the term “personal law” in dictionaries or other reference
materials. Discuss your findings with the group. How does personal law relate to domicile?
Exercise 13. Answer these questions.
1. What does the term “domicile” signify?
2. Does domicile always coincide with the person’s permanent home?
3. What is the difference between the traditional and the modern approaches concerning
domicile?
4. What legal purposes is domicile important for?
5. What does “domiciled in a law district” mean?
6. Can a person be without a domicile?
7. What feature of domicile makes domicile preferable as a connecting factor for
determining the personal law?
8. What are the differences between the terms “domicile” and “residence”?
9. What are the three types of domicile?
10. What domicile is a person assigned at birth?
11. Why is the domicile of origin more tenacious than the domicile of choice?
12. When may a domicile of choice be acquired?
13. What does a person need to do to change his domicile?
14. What domiciles arise by operation of law irrespective of intention?
15. What law is the governing law in resolving the issue of domicile?
16. Why is domicile significant for jurisdictional purposes?
17. Why is the issue of domicile significant for choice-of-law purposes?
Summarizing
Exercise 14. Read each part of the text. Render each part of the text in no more than one or two
sentences that would reflect the essence of the passage.
Exercise 15. Summary writing is characterized by the use of speech connectors enabling to show
how the parts of the derivative text are linked. Write a plan and summarize the text using these
speech links.
1.
To introduce the theme of the text:
The text is concerned (with); deals (with); is devoted to the problem (of); concerns itself
(with); focuses/concentrates on the problem (of)
2.
To list the information contained in the text:
The information covered in the text includes…; The text highlights the following issues:
…; The following information is presented in the text: …; Covering the general theme of
…; The text can be broken down into the following information items: …
3.
To dwell on the essence of each of the information items and to structure your
summary:
First(ly), …; Second(ly), …; Third(ly)/The third point made in the text is …;
Next/Furthermore/Then, …; Finally, …; In conclusion it should be pointed out that …;
To conclude, …
4.
Depending on the nature and contents of the text you may or may not have to or
want to make an inference from it that would contain its main idea (in other words,
the explanation why the text was written in the first place). If you do, use the speech
clichés suggested at the end of the previous item:
To conclude, In conclusion, etc.
DOMICILE
Part II
Legal Terms
1.
minor
несовершеннолетний
2.
exercise a power
осуществлять полномочие
3.
fraudulently
мошенническим путем
4.
rights of succession
права наследования
5.
minority
малолетство, несовершеннолетие
6.
attain majority
достигать совершеннолетия
7.
beyond redemption
без надежды на изменение
8.
The Hague Convention Гаагская конвенция по международному частному
on Private International праву
Law
9.
habitual residence
постоянное место жительства, место постоянного
проживания
Other Vocabulary Items
1.
abstain (from)
воздерживаться от чего-либо, не принимать
участие в чем-либо
2.
for the benefit or welfare (of)
в пользу и на благо кого-либо
3.
in respect of
в отношении
4.
ascertain
устанавливать
5.
cease
прекращать, приостанавливать
6.
envisage
предусматривать
7
artificial
искусственный, надуманный
8.
shorn of technicalities
лишенный формальностей
Text 2. Minors and Mental Patients.
(Abridged from Conflict of Laws by J. G. Collier)
A minor is a person who is aged under eighteen (before 1 January 1970 it was twentyone). But a person can, since 1 January 1974, acquire his own domicile when he attains his
sixteenth birthday or, if he is below the age, upon marriage.
The domicile of dependence of a legitimate minor is, with the exception discussed below,
that of his father, and changes automatically if his father changes his own domicile. That will
also remain his domicile after his father’s death until the minor becomes sixteen. It may,
however, after his father’s death follow that of his mother. But if his mother changes her
domicile, the minor’s domicile does not necessary alter. The mother has power to change the
minor’s domicile along with her own, but she must positively change it and must not abstain
from doing so. If she does exercise this power she must not, it seems, do so fraudulently, that is,
for a purpose other than for the benefit or welfare of the minor (not, for example, to acquire
better rights of succession to the child’s property).
The domicile of origin of an illegitimate child is, as we have seen, that of his mother
when he is born.
Nevertheless, Re Beaumont does not seem a very satisfactory decision nowadays, when
men and women are equal in law (although it had good reasons behind it when it was decided).
Until 31 December 1973, a married woman’ domicile automatically changed with that of her
husband. But the unity of domicile of husband and wife was abolished as from 1 January 1974.
The situation should have been properly dealt with in 1973, when reforms, about to be discussed,
were made by statute, in respect of a minor’s domicile.
If, as is thought, a legitimated child acquires a domicile of dependence upon his father
when he is legitimated, his domicile will thereafter be ascertained as if he were legitimate. The
same must be true of a child who is adopted by a man and wife, since he takes the adoptive
parents’ (presumably the father’s) domicile of origin.
One problem was dealt with in a not very lucid manner in the Domicile and Matrimonial
Proceedings Act 1973. It concerned the domicile of a minor whose parents had been divorced
before 1 January 1974 or after that date were separated, and lived in different countries and
acquired separate domiciles, and who lived exclusively with the mother. The Act provides that
where the parents of a child, including an adopted child under sixteen, are alive but live apart,
the child’s domicile of dependence is that of his father. But if he has a home with his mother and
none with his father, his domicile is that of his mother. Once he acquires his mother’s domicile
under this provision he retains it until he is sixteen even if he ceases to have a home with her,
unless he has at any time a home with his father.
Two questions arise out of this. First, the statutory rules appear to apply only to the
domicile of dependence since they envisage the child’s domicile of origin being that of his
father. Suppose he is legitimate but his parents separate before he is born. Presumably his
domicile of dependence is that of his mother, but his domicile of origin is that of his father, in
which case his domicile changes immediately after his birth. This seems very artificial.
Second, suppose the child acquires a domicile with his mother under the Act, then goes to
live with his father on 1 February, and his father dies on 2 February. He reacquires the domicile
of his father. Thereafter, the statutory rule ceases to govern, and the common law rules, including
Re Beaumont apply. Moreover, since the Act is concerned with a situation where the parents are
alive, it may be that Re Beaumont will apply after the father dies, even though the child had not
reacquired a home with him. None of these seems satisfactory; it would have been better had
Parliament made it clear that the Act continued to apply, or better still, abolished the common
law rule in Re Beaumont altogether.
It appears that the domicile of a mentally disordered person cannot be changed by his
own act since he is unable to form the requisite intention, and thus he retains the domicile he had
when he became insane.
There is authority for the proposition that if a person becomes insane during his minority
his domicile of dependence can be changed by an alteration of the domicile of the parent upon
whom he is dependent, even if this takes place after he attains majority, but that if he becomes
insane after he attains majority, his domicile cannot be changed for him.
Some features of the law of domicile have long been criticized. The rules were, for the
most part, laid down by judges in Victorian times, and it is argued that, though they may have
been quite satisfactory as reflecting social factors then in existence, they are nowadays artificial
or inadequate.
However, the only reform in the law has been the Domicile and Matrimonial Proceedings
Act 1973. As we have seen, this discarded the common law unity of domicile between married
persons and made some limited reforms in relation to the domicile of minors (whether this
exercise in law reform has been entirely successful is perhaps open to doubt).
Two frequently voiced complaints remain. The first concerns the alleged difficulty, which
arises from the presumption of the continuance of the domicile of origin, in establishing the
acquisition of a domicile of choice. The other concerns the revival of the domicile of origin.
Attempts were made in the 1950s to abolish the presumption of the continuance of the
domicile of origin and replace it by a presumption that a person is domiciled in his country of
residence, but Bills introduced into the House of Lords for this purpose were lost or withdrawn.
Possible solutions to these problems in the law of domicile, if they really are serious
problems, are either to regard the law as beyond redemption and abandon it as a connecting
factor or make another connecting factor an alternative to domicile. Successive Hague
Conventions on Private International Law have resulted in a compromise between those systems
which adopt domicile in our sense and those which adopt nationality and have produced
‘habitual residence’ which is like domicile shorn of its technicalities, as a connecting factor side
by side with domicile and nationality.
Reading Comprehension
Exercise 1. Answer these questions.
1. Under what conditions can a person acquire his domicile since 1 January 1874?
2. In what case does the domicile of dependence of a legitimate minor change?
3. May a minor after his father’s death follow his mother’s domicile?
4. When does the mother have power to change the minor’s domicile?
5. What domicile does an illegitimate child acquire?
6. What domicile did a married woman acquire until 31 December 1973?
7. What feature of domicile was abolished as from 1 January 1974?
8. What domicile does an adopted child acquire?
9. What legal issues did the Domicile and Matrimonial Proceedings Act 1973 deal with?
10. What domicile of dependence does the minor acquire under the Act 1973, if his parents
are alive but live apart?
11. Does a child who has a home with his mother always retain the mother’s domicile until
he/she is sixteen?
12. What problems arise out of the provisions of the Domicile and Matrimonial Proceedings
Act 1973?
13. Can the domicile of a mentally ill person be changed by his own act? Why?
14. How can the domicile of dependence be altered if a person becomes insane before he
attains majority?
15. Has the law reform concerning the domicile been entirely successful?
16. What are the two complaints not settled by the law reform?
17. What attempts were made in the 1950s? Were those attempts successful?
18. What are possible solutions to the problems in the law of domicile?
19. What compromise has been reached according to the Hague Conventions on Private
International Law?
Summarizing
Exercise 2. Divide the text into meaningful parts and write a plan of the text.
Exercise 3. Express the main idea of each part of the text in a few sentences.
Exercise 4. Summarize the text relying on the plan and using speech connectors.
UNIT 2
JURISDICTION IN CONFLICT OF LAWS
Part I
Legal Terms
1.
jurisdiction
юрисдикция, подсудность, компетенция, власть
subject matter or legislative
jurisdiction
предметная, законодательная подсудность,
юрисдикция
judicial jurisdiction
судебная юрисдикция, подсудность
in personam or personal
jurisdiction
личная, персональная юрисдикция, подсудность
in rem jurisdiction
вещная юрисдикция, подсудность
quasi in rem jurisdiction
квази-вещная юрисдикция, подсудность
general in personam
jurisdiction
общая личная подсудность
special in personam
jurisdiction
специальная личная подсудность
small claims jurisdiction
подсудность, юрисдикция при исках на малые
суммы
2.
forum
судебный форум, суд, место разбирательства дела
3.
due process clause
статья Конституции США о надлежащей, или
правовой процедуре
4.
interstate commerce clause
статья Конституции США о торговле между
штатами
5.
privileges and immunities clause статья Конституции США о привилегиях и
освобождении от ответственности
6.
full faith and credit clause
статья Конституции США о доверии и признании
решений других штатов
7.
enabling statute
статут, облекающий правом, уполномочивающий
статут
8.
substituted service of process
субститут личного вручения (судебного
документа)
9.
adjudicate rights (in)
рассматривать, признавать, устанавливать права (в
суде), выносить судебное решение о правах
10. basis for jurisdiction
основание для (установления) подсудности
11. attack on jurisdiction
оспаривание законности юрисдикции
12. statute of limitations
закон об исковой давности
13. long-arm statute
закон о трансграничной, или экстерриториальной
подсудности
Reading Comprehension
Exercise 1. Answer these questions before reading the text.
1.
2.
3.
4.
What is your understanding of the term "jurisdiction"?
What kinds of jurisdiction do Russian courts exercise?
How is jurisdiction conferred upon Russian courts?
Does a claim form have to assert the court's jurisdiction in Russia?
Exercise 2. Read the headlines and say what information you expect to find in each part of the
text.
Exercise 3. Read the text to find the following information:
1. What is "subject matter" or "legislative" jurisdiction?
2. What is the difference between general and special jurisdiction?
3. On what grounds can a court jurisdiction be contested?
Text 1. Jurisdiction of US courts
(Abridged from Conflict of Laws by Thomas C. Fischer and Stan Cox)
Jurisdiction defined
The term “jurisdiction” has many legal meanings. The two used in this outline are: 1) a
geo-political unit having a single body of law (i.e., a city, county, state, or nation); and 2) that
used most frequently, the power of a court to affect interests of parties that will be recognized
elsewhere.
Application to conflicts
Jurisdiction is usually exhaustively explored in a law school course on civil procedure.
Concern with jurisdiction in conflict of laws is different. In civil procedure, jurisdiction generally
relates to the authority of a trial court to exercise jurisdiction when its verdict is appealed to a
higher court in the same state or to the US Supreme Court. In Conflict of Laws we are concerned
with the duty of a second state (or “jurisdiction”) to recognize the act of a prior forum when that
act is brought before the second forum for recognition. If the first court lacked jurisdiction to
hear and determine the action, in most cases there is no duty on the part of the second court to
recognize the first court’s decision.
The “power” of a court to alter the rights of individuals or interests in property is limited
by the US Constitution (chiefly the due process clauses of the 5th and 14th Amendments) and/or
by state or local statutes that stipulate the court’s jurisdiction. While state or local statutes cannot
confer more judicial authority than the Constitution allows, those statutes need not confer as
much jurisdiction as due process permits. Thus, a court’s jurisdiction is limited first by its
enabling statute and only secondarily by the Constitution. Jurisdiction of this sort is often called
“subject matter” or “legislative” jurisdiction, since it is established by statute, and not generally
by common law decisions.
Two classic cases illustrate that courts cannot act without statutory or constitutional
authority (“jurisdiction”). In Buchanan v. Rucker, 1808, a statute of the island of Tobago
provided that personal jurisdiction could be established over a defendant based on various
alternative modes of service, the least of which was “nailing up a copy of the … summons at the
entrance of the court-house”. The defendant, a British merchant, did not appear in the island
proceedings, so a default judgment was entered against him. When that judgment was brought to
England for enforcement, he defended that the Tobagan court lacked jurisdiction over him. The
English court agreed. Since the statute authorized substituted service only when the defendant,
once present on the Island, was absent at the time of service, and because it was never shown
that the British merchant was present, the statute did not grant jurisdiction to the court in this
situation.
In a better-known case, Pennoyer v. Neff, 1878, the defendant, while absent from the state
of Oregon, was sought to be notified by publication of a suit pending against him there. The
forced sale of his Oregon property was the focus of his appeal, but that sale was made to satisfy
an underlying contractual claim for attorneys’ fees. That claim, the US Supreme Court held,
sounded in personam and hence the Constitution’s due process clause required personal service
of the defendant within Oregon’s boundaries. The Oregon court had exceeded its constitutional
authority. (NOTE: This constitutional limitation has been substantially liberalized in more recent
cases.)
Three forms of judicial jurisdiction
Classically, judicial jurisdiction is divided into three separate forms: in personam; in rem;
and quasi in rem. Simply put, in personam jurisdiction means “power” over an individual. In rem
jurisdiction implies the same sort of “power” over property, tangible or intangible, which
property can constitutionally be reached and controlled by the court. This assumes, however, that
the property in question is the object of the suit.
Quasi in rem jurisdiction has several meanings. An understanding of the differences
between them is needed in order to adequately grasp the recent US Supreme court decisions
limiting quasi in rem jurisdiction.
Some scholars limit rem proceedings to those that adjudicate rights in property as against
the whole world. One example would be an admiralty proceeding. By contrast, a quasi in rem
proceeding is said to adjudicate rights in property against named defendants.
Another group of scholars considers rem proceedings to be those in which property is the
object of the suit, whether that right is asserted against named defendants or the whole world. To
them, a quasi in rem proceeding is one in which the nature of the suit is personal, but wherein
property is attached as a basis for jurisdiction and to satisfy the judgment, if any, for the plaintiff.
In personam jurisdiction
In personam jurisdiction suggests judicial “power” over an individual, whether or not
he/she is physically present in the jurisdiction. The legal connections between an individual and
the state asserting power over him (person-focus contacts) may be many or few, affecting the
scope of personal jurisdiction.
The scope of personal jurisdiction is often described as being either “general” or “special.”
When a person (natural or corporate) has connections with a state so substantial that it
would not be improper to bring any cause of action against him/her there, the courts of that state
are said to have general jurisdiction over that person. That is, all causes of action against the
defendant, whether or not related to defendants’ activities in that state, could be pursued in its
courts (assuming their competence). The defendant is “generally present” for purposes of suit.
When general jurisdiction is found to exist, it is based on substantial “contacts” between
the person and the forum. Natural persons are “generally available” for suit in their domicile, at
their principal residence and usually in the courts of their nationality and/or citizenship (when
this connection is relevant). See e.g., Blackmer v. United States, 1932. Business enterprises are
“generally available” at their site of incorporation, their principal place of business, and such
other places where they conduct “substantial” business.
Special (or limited) jurisdiction connotes a connection between a party, an event or
transaction and a jurisdiction, such that it would not be improper to require the defendant to
defend himself against a particular (specific) cause of action in that forum (due to those
contacts). The focus here is between the defendant and the specific events in the forum that gave
rise to the cause of action. Obviously, this form of jurisdiction is more limited than “general”
jurisdiction, is cause-specific, and will support only actions that are sufficiently related to the
forum. Thus, rem jurisdiction is always specific, since it is always limited to the res under the
control of the court.
It is always important to consider whether the defendant’s “contacts” with the forum will
constitutionally support general or special jurisdiction, and, if the latter, over what specific
causes of action. Professor Cramton of Cornell has characterized these contacts, respectively, as
forum-defendant; forum-transaction; and forum-property relationships.
Attacks on jurisdiction
Exercise of court jurisdiction may be attacked on statutory or constitutional grounds. Since
courts are granted jurisdiction only in specified circumstances, it is most common to attack court
jurisdiction for failure to observe the statutory requirements. However, statutory authority can
never exceed the limits of the US Constitution.
Statutory limits. Today almost all court authority is conferred by statute. The legislative
branch may stipulate which courts, under what circumstances, can take jurisdiction of particular
causes of action. Typical examples include: the assignment of civil and criminal matters to
different courts; the creation of specialized courts to handle probate, family, and land matters;
and the imposition of a dollar limitation for small claims jurisdiction.
Clearly, a legislature cannot confer more judicial authority on its courts than permitted by
the Constitution, but it need not delegate all the judicial authority that it constitutionally could.
Whenever judicial authority is withheld, the court is viewed as “not competent” to hear the case
in question. Therefore, the first (and often best) attack against court jurisdiction is that the court
was not delegated authority over the matter or, if it was, that some requirement of the enabling
statute has not been satisfied. A classic example of statutory limits is Mullane v. Central
Hanover Bank & Trust, in which certain defendants were found to have received sufficient
notice of an intended property distribution when the statutory terms for notification (publication)
were met by the plaintiff. Another class of defendants, however, did not receive the notice (due
process) to which they were constitutionally entitled, since the plaintiff knew their whereabouts,
which made personal notice possible. The statute allowed for publication in both instances.
Statutory terms applied to the former group, but the latter was governed by constitutional
standards of due process, despite the statutory provisions.
Constitutional limits. As in Mullane, discussed above, a court may lack personal
jurisdiction, even when the legislation assigning it is followed to the letter. The legislature is
powerless to assign judicial authority in contravention of the due process clauses of the United
States Constitution: the Fifth Amendment (governing the federal government); and the
Fourteenth Amendment (governing state governments), and, to a lesser extent, the interstate
commerce clause, or even the privileges and immunities and the full faith and credit clauses.
If there is no sufficient relationship between the defendant, the cause of action, and the
forum court, such that it would satisfy “traditional notions of fair play and substantial justice,”
then the grant of statutory authority is constitutionally improper because it offends the
defendant’s right to due process. Although this constitutional attack on personal jurisdiction
attracts more attention than the statutory limitations discussed above, it is less likely to arise. The
US Supreme Court has been defining jurisdiction more narrowly since Shaffer v. Heitner, but
most limitations on court jurisdiction still arise under statute, not the Constitution. Where,
however, a statute or judicial interpretation confers jurisdiction that exceeds constitutional
parameters, it can be attacked on those grounds.
The reasons for contests over personam jurisdiction
The student may well wonder about all this concern over personal jurisdiction, since most
defendants are generally available in at least one jurisdiction (their domicile or principal place of
business) unless its statute of limitations has run, etc. In truth, a plaintiff tries to select a forum
that is advantageous to him/her and also somewhat disadvantageous to the defendant.
Occasionally, the selection is based on pure harassment, but more frequently it is a combination
of the plaintiff’s convenience and defendant’s inconvenience.
Often unstated in personal jurisdiction cases is the fact that the plaintiff’s attorney has
researched the law of all jurisdictions in which suit might be brought, and has commenced suit in
the jurisdiction where the law (including procedure) is to his client’s greatest advantage. Since
the US Supreme Court has given closer scrutiny to the exercise of personal jurisdiction over
absent defendants than it has to choice of law, the contest between the parties often takes the
form of a contest on the issue of personam jurisdiction, even though the parties may be most
concerned by choice of law. Hence, the contest devolves into whether or not a particular
jurisdiction’s long-arm statute, or the US Constitution, will allow jurisdiction to be exercised
over an absent defendant. The choice-of-law issue is reserved for a later stage in the proceeding
and is often the law of the forum the plaintiff chose, if it can be constitutionally applied. Given
the concerns of the US Supreme Court and the structure of the pleading, the parties’ concern
with choice of law is subsumed and obscured by the struggle over personal jurisdiction.
The thoughtful student will also note that the application of long-arm jurisdiction to absent
defendants is not completely consistent from case to case. Contemporary case law indicates that
the US Supreme Court is more willing to allow extenuated long-arm jurisdiction in cases
involving large corporations (particularly insurance companies), individuals doing considerable
interstate business, and defamation cases, than with ordinary citizens.
Conversely, the Court seems less willing to assert long-arm jurisdiction over individual
defendants, particularly where to do so would work a “hardship” on the individual or legal
system. Kulko v. Superior Court of California, but cf. Burnham v. Superior Court of California,
Marin County.
Vocabulary Work
Exercise 4. Read the text and suggest Russian equivalents of the following word-combinations.
Bear in mind that you may have to change the familiar meanings of certain words. Use the
English phrases in your own sentences.
to stipulate a court's jurisdiction; to commence a suit; in contravention of due process; to give
closer scrutiny (to); to sound in personam; given the concerns; to withhold judicial authority
Exercise 5. Suggest English equivalents of the following word-combinations.
наделять/облекать судебной властью; быть последовательным; нарушать право ответчика
на надлежащую правовую/судебную процедуру; субститут личного вручения (судебного
документа); передавать на рассмотрение суда; утвердить трансграничную подсудность
ответчика; выносить судебное решение о правах
Exercise 6. Fill in the gaps in the following sentences with A, B, C or D.
1. The plaintiff seeks to commence suit in the jurisdiction where the procedure is to his/her
greatest _________________ .
A
B
C
D
benefit
profit
advantage
favor
2. The exercise of long-arm jurisdiction in respect of absent defendants is somewhat
______________ from case to case.
A
B
C
D
illogical
inconsistent
irregular
incompatible
3. The number of legal connections between an individual defendant and the forum may
vary, ______________ the scope of personal jurisdiction.
A
B
C
D
affecting
touching upon
concerning
shaping
4. The defendant's contacts with the forum will constitutionally support either general or
special jurisdiction, and if the ____________, over specific causes of action.
A
B
C
D
lately
late
later
latter
5. State or local statutes cannot ____________ more judicial authority than the Constitution
allows.
A
B
C
D
put
stipulate
confer
establish
6. In civil procedure, jurisdiction ______________ to the power of a trial court to exercise
jurisdiction over a person or property.
A
B
C
D
connects
relates
associates
links
Exercise 7. Fill in the gaps in the following sentences with the English words or wordcombinations from Exercise 5 and then translate the sentences.
1. While state or local statutes cannot ________ more ______________________than the
Constitution allows, those statutes need not confer as much jurisdiction as due process
permits.
2. If there is no sufficient relationship between the defendant, the cause of action, and the
forum court, then the grant of statutory authority is constitutionally improper because it
__________________________________.
3. The application of long-arm jurisdiction to absent defendants is not completely
___________ from case to case.
4. The
Supreme
Court
seems
less
willing
______________________
individual______________, particularly where to do so would work a “hardship” on the
individual or legal system.
5. Some scholars limit rem proceedings to those that _______________ in property as
against the whole world.
6. Since the statute authorized ____________________ only when the defendant, once
present on the Island, was absent at the time of service, the statute did not grant
jurisdiction to the court in this situation.
Exercise 8. Find the following speech clichés and speech links in the text, determine their
functions, and then translate them into Russian.
thus; classically; simply put, this assumes, however, that; by contrast; if any; that is; obviously; it
is always important to consider (whether); if the latter; respectively; however; typical examples
include...; clearly; therefore; as in (Mullane) discussed above; to a lesser extent; although;
occasionally ... but more frequently; hence; given (the concerns); (the thoughtful student) will
also note that; conversely
Analytical Reading
Exercise 9. Answer the questions on the text.
What are the two meanings of the term "jurisdiction" used in the text?
Why is jurisdiction important in Conflict of Laws?
How are the US courts conferred upon with judicial authority?
What two factors is a US court's "subject matter" jurisdiction limited by?
What do the cases Buchanan v. Rucker and Pennoyer v. Neff illustrate?
What three forms of judicial jurisdiction are mentioned in the text? What are their special
features?
7. What is the controversy over quasi in rem jurisdiction?
8. In what case are the courts said to have general jurisdiction over a person?
9. When do the US courts exercise special (limited) jurisdiction over a defendant?
10. What causes of action call for the exercise of special jurisdiction?
11. On what grounds can the validity of jurisdiction be argued?
12. What is the rationale for attacking jurisdiction if judicial authority is statutorily withheld?
13. On what constitutional grounds can a court jurisdiction be attacked?
14. What are the reasons for the concern over personal jurisdiction in conflicts situations?
15. How does the US Supreme Court tend to consider long-arm jurisdiction over natural and
legal entities, respectively?
1.
2.
3.
4.
5.
6.
Summarizing
Exercise 10. Express each part of the text under a subheading in no more than one or two
sentences, reflecting the essence of the passage. Write the sentences down.
Exercise 11. Study the following clichés that are typically used in summary writing.
1. To introduce the topic:
The text (article) under consideration (review, scrutiny) is devoted to ...
The text deals with (the issue of)...
The text concerns itself (is concerned) with...
The text considers (the problem/issue of)...
2. To structure the information contained in the text:
The following issues/problems are mentioned / dealt with / considered / discussed /
highlighted in the text: ...
The text covers the following relevant information: ...
The information covered in the text comprises ...
3. To dwell on each item of information:
Firstly, secondly, thirdly, next, furthermore
The first thing to be mentioned/dwelt on/focused on is...
Going over to the next point, it is ...
Further on, ...
Highlighting the next item / thing / problem / idea under consideration, one should / must
point out that...
4. To conclude (or sum up):
In conclusion it can be established that ...
To conclude, it is (definitely, reasonably, certainly) worth mentioning / indicating /
pointing out that ...
Finally/eventually/in the end, it bears saying that ...
Finally, one can arrive at the conclusion that ...
To sum up, the text (information presented in the text) is of importance / significance /
relevance / interest / indisputable value for ...
Making an inference, it must / can / should be pointed out that ...
Exercise 12. Write a summary of the text by choosing the clichés and link-words from Exercises
8 and 11, inserting them, where appropriate, into the text you arrived at in Exercise 10.
JURISDICTION IN CONFLICT OF LAWS
Part II
Legal Terms
1.
submit to jurisdiction
подчиниться юрисдикции
2.
assert jurisdiction / authority
(over)
установить (чью-либо) подсудность
3.
want authority
не обладать властью (над кем-то)
4.
be privileged (against) / be
immune (from) the exercise of
jurisdiction
освобождаться от подчинения юрисдикции
5.
consent to jurisdiction
согласие подчиниться юрисдикции
constructive consent
презюмируемое, подразумеваемое согласие
6.
cognovits clause
оговорка о признании иска
7.
be amenable to a suit
нести ответственность в случае иска
8.
confess judgment for default on
the note
признавать решение суда в случае неисполнения
обязательств по векселю
9.
minimum contacts jurisdiction
подсудность, основанная на минимальных
контактах
10. instant case
рассматриваемое дело
11. premium bills
страховые взносы
12. foreseeability
возможность предвидеть (событие и т.п.)
13. hybrid jurisdiction
смешанная, "гибридная" юрисдикция
14. derivative jurisdiction
производная юрисдикция (вытекающая их связи
ответчика с лицом, подчиненным юрисдикции)
15. continuing jurisdiction
неотменяемая юрисдикция
16. attachment
арест имущества должника
17. garnishment
арест имущества должника, находящегося у
третьих лиц
18. sequestration
изъятие имущества должника
19. title
правооснование на имущество
Text 2. Bases for jurisdiction of US courts
(Abridged from Conflict of Laws by Thomas C. Fischer, Stan Cox)
Bases for general jurisdiction
General personam jurisdiction is usually based on a connection between the forum and
the defendant party that is so strong that it would not be unjust to bring any cause of action
against that party there. Domicile, residence, nationality, and citizenship all meet this criterion.
Mere physical presence, however, often used for general jurisdiction, does not. Thus it poses
certain due process problems.
If a person has but one domicile, and it is where he chooses to make his legal residence, it
stands to reason that his domicile can assert legal authority over him, whether he is present or
not. Its jurisdictional “power” over him is explained by the fact that he has sought its protection
and accepts the obligations it places on him; including the obligation to submit to its general
jurisdiction (Milliken v. Meyer, 1940).
Since an individual can have more than one residence, it is more tenuous to suggest that
his residential court can assert jurisdiction over him on the basis of that connection alone.
Nonetheless, an elective choice of residence and the substantial connection between a resident
and his residence involves some of the same connections as does domicile. Certainly this is true
of the European notion of “habitual residence,” although it is less the case with regard to
occasional or temporary residences. Nonetheless, the nexus of residence is often sufficient to
support general jurisdiction.
Nationality is rarely used as a basis for jurisdiction in the United States. More frequently,
state jurisdiction is based on citizenship, domicile, or residence. “Nationality” is generally used
to describe the connection between foreign nations and their subjects. However, there are cases
in which the United States has asserted federal court jurisdiction over absent citizens on the basis
of their nationality (Blackmer v. U.S., 1932).
Jurisdiction also has been asserted over individuals, whether or not they owe allegiance to
a sovereign, if they can be served while physically present within a state’s boundaries. Generally,
this presence must be conscious, voluntary, and more than momentary (Burnham v. Superior
Court of California, but cf. Grace v. MacArthur, 1959). If presence is momentary, and the cause
of action bears no relationship to the state asserting its authority, the exercise of jurisdiction is
vulnerable to due process and forum non conveniens attacks (Helicopteros Nacionales de
Columbia S.A. v. Hall, 1984).
Where the presence of a person in a jurisdiction is procured by involuntary means, the
court will not exercise jurisdiction either because the Constitution’s due process clause forbids it
or because equity dictates that such practices be discouraged. Generally, the law will not aid a
fraud. Thus, if the presence of a defendant in a jurisdiction is fraudulently induced by a plaintiff
or his agent, with the goal of exercising personal jurisdiction over that defendant, a court will
usually decline to assert the jurisdiction fraudulently obtained. When a New York plaintiff sent
New Jersey defendants tickets to a Broadway show as “part of a consumer test” and then served
them while in the theater, the court refused jurisdiction (Terlizzi v. Brodie, 1972).
When a defendant is forcefully brought into a jurisdiction and court authority is asserted
over him/her, that authority is wanting because the defendant’s presence was not voluntary. For
example, in Thompson v. Whitman, 1874, a clamming sloop was seized by two Monmouth
County sheriffs while fishing outside the county’s boundaries. It was then escorted to a port in
Monmouth County. Since the sheriffs’ jurisdiction was limited to the county, and the seizure
occurred outside it, it availed them nothing to insist that the defendant was eventually “present”
in Monmouth County. His presence there was achieved by force.
Under certain circumstances, a person may be privileged against the exercise of personam
jurisdiction over him/her, although physically present in the jurisdiction asserting its authority. A
common example is the defendant who enters a jurisdiction on a “special appearance,”
specifically to plead a lack of personam jurisdiction over him/her. He is physically within the
court’s jurisdiction, but legally he/she is not present, due to “privilege.” Other examples include:
foreign parties subpoenaed to appear in a local proceeding and the diplomatic “immunity”
sometimes granted to foreign service officers.
Bases for special (limited) jurisdiction
Now we will look at special or “limited” jurisdiction based on a specific, limited
relationship between the defendant and the court asserting power over him/her. Jurisdiction in
such cases is limited to suits based on the defendant’s “connection” with the jurisdiction.
If a defendant voluntarily appears to defend a suit, he subjects himself to the authority of
the court. It does not matter whether the defendant had any obligation to appear, or whether the
court has sufficient connections to assert long-arm authority over him. If the party is not
defrauded or forced into entering the jurisdiction, a voluntary appearance, in person or by
attorney, is sufficient for jurisdiction.
Thus, a plaintiff who invokes the jurisdiction of a court and voluntarily appears for the
purpose of bringing a law suit submits to that jurisdiction for purposes of counterclaims, crossclaims, and the like, even though jurisdiction over him might not otherwise exist. The defendant
also could elect to appear generally (to contest the lawsuit) or specially (to contest personal
jurisdiction).
It is also possible for a party to consent in advance to the exercise of court jurisdiction
over him. It does not matter that the party never entered the jurisdiction, or that his contacts with
it would not be sufficient to justify an exercise of long-arm jurisdiction. If a party contractually
consents to be amenable to a suit in a jurisdiction, then that willingness to submit to the
jurisdiction is probably sufficient. The most obvious example is a cognovits clause in a
promissory note, under which an absent defendant agrees to submit to the jurisdiction of a court,
to allow a local lawyer to represent him/her, and to confess judgment for default on his/her note
(Egley v. T.B.Bennett, 1924). Of course, a court need not accept the jurisdiction that parties have
sought to confer on it through their consent, unless the court’s refusal would result in
unconstitutional discrimination. Many courts are reluctant to do so, on the theory that cognovits
clauses are not truly consensual, or that the consensual jurisdiction agreed to “burdens” the court.
Modern court decisions have used various theories to extend “long-arm” jurisdiction
(legislatively-granted judicial power over absent parties) to reach defendants involved in some
local act or effect that produced local injury. There are several bases for this type of long-arm
jurisdiction. Often more than one theory is used to justify the exercise of personal jurisdiction.
In some cases it is said that the behavior of the defendant implies “consent” to the
exercise of jurisdiction over him/her in certain matters, due to some local “act or effect” that
caused injury and gave rise to a cause of action. An example of this is Hess v. Pawloski, 1927, in
which a non-resident automobile operator, driving in Massachusetts, caused an injury there. He
was held to have implicitly “consented” to the exercise of Massachusetts long-arm, personam
jurisdiction over him for the specific purpose of addressing his tortuous behavior to
Massachusetts. His use of Massachusetts roadways implied consent to be amenable to causes of
action arising from their use.
Occasionally it can be said that a defendant, by reason of his/her legal relationship to a
jurisdiction, has constructively consented to the exercise of its authority over him. A case
frequently cited is Dubin v. City of Philadelphia, 1938. In it, an out-of-state landlord was found
to have constructively consented to in personam jurisdiction over him in a suit arising from
ownership of a property in Philadelphia, and related to the duties of ownership.
One of the most misunderstood areas of long-arm, in personam jurisdiction is “minimum
contacts.” It suggests the existence of sufficient “contacts” between the absent defendant and the
jurisdiction seeking authority over him/her such that they would minimally satisfy the
requirements of the Constitution’s due process clauses (5th and 14th Amendments) in certain legal
actions. Hence, “minimum contacts” analysis must first address whether sufficient contacts exist
to assert jurisdiction over an absent defendant, and second whether the instant case is one
sufficiently related to those contacts. The state, generally by statute, must also grant jurisdiction
(competence) to courts in such circumstances. Not all states do.
The quintessential case involving “minimum contacts” is International Shoe Co. v. State
of Washington. In that case, a shoe manufacturer, based in St. Louis, Missouri, was found to
have been sufficiently involved with persons representing it in the state of Washington (by
providing them with samples and reimbursing their expenses), to justify the assertion of that
state’s jurisdiction over the shoe manufacturer for the purpose of paying a worker’s
compensation tax. In the words of the US Supreme Court the assertion of personal jurisdiction
over the defendant in International Shoe was based on “minimum contacts” so that it did not
“violate traditional notions of fair play and substantial justice.” It should be clear, however, that
the state of Washington might not be able to assert jurisdiction over International Shoe for other
legal obligations, lacking “contacts” with the state.
The high-water mark of this “minimum contacts” analysis was probably McGee v.
International Life Insurance Co. In McGee, the successor to an insurance company that wrote an
insurance contract on the life of a California resident, sent premium bills to him there, and
received payment therefrom, was found to have sufficient “contacts” with California to justify
that state’s exercise of in personam jurisdiction over the absent Texas insurer, notwithstanding
the fact that it had no agents in California, solicited no business there, nor insured Californians
other than the decedent.
It is possible that this de minimis basis for long-arm, “minimum contacts” jurisdiction is
limited to large public corporations, or even to insurance companies. Witness to substantial
retreat from the McGee holding in the case of Kulko v. Superior Court of California In & For
City & County of San Francisco, where it was held that a New York defendant, whose former
wife (the plaintiff) sued him in California, visited there on several occasions, and sent support
checks and made arrangements for his daughter to join his wife there, still lacked the “minimum
contacts” needed to allow California to exercise long-arm jurisdiction over him, despite the fact
that he was married in California. The US Supreme Court found that equity dictated that longarm jurisdiction should not be exercised over an absent defendant merely because he had “some”
connection with the jurisdiction. In the view of the Kulko court, the connection must be
voluntarily initiated by the defendant, and “systematic” and “continuing”.
The most interesting, recent “minimum contacts” case is Keeton v. Hustler Magazine
Inc., 1987. In it, Kathy Keeton sued Hustler Magazine for alleged defamation. Ms. Keeton failed
to initiate a successful suit in either her domicile (New York) or the state of Hustler Magazine’s
incorporation and publication (Ohio). Ultimately, she brought suit in the only state (New
Hampshire) in which the statute of limitations for defamation (five years) had not run. Less than
one percent of the Hustler’s circulation was in New Hampshire, and there was no evidence that
Ms. Keeton was known or had any reputation to protect in that state. Nonetheless, the US
Supreme Court held that Hustler Magazine promoted its circulation in New Hampshire and
therefore had the “minimum contacts” needed to permit Ms. Keeton to sue them for defamation
there; that is, to satisfy the constitutional requirements of “fair play and substantial justice.” A
curious aspect of the suit is that New Hampshire had a single-publication rule, allowing Ms.
Keeton to collect all damages for defamation wherever it occurred.
Unlike Kulko (discussed above), Keeton is a remarkable extension of “minimum
contacts” theory, but such extensions may be legitimate in cases of conscious defamation.
In sum, there are several important “considerations” that guide the US Supreme Court in
establishing the limits of modern “minimum contacts” jurisdiction, but these considerations have
varied over time; by defendant type; and by case subject matter. The considerations are:
1) frequency and substantiality of defendant’s contacts with the forum;
2)
3)
4)
5)
that the legal claim arises from these contacts;
contacts initiated by the defendant;
benefits sought or derived from the forum’s law;
burden on the defendant to defend in the forum versus the plaintiff’s difficulty or
hardship in securing an alternate venue;
6) the interest of the forum in granting relief (usually to its domiciliary or resident).
Note: Neither items five or six can be weighed heavily as a constitutional matter, for,
if they were, the court could be guided by its interest in assisting the plaintiff, rather
than protecting the defendant from an unwarranted exercise of jurisdiction; and
finally,
7) reasonableness under all of the circumstances (a euphemism for the constitutional
process due to all parties to a litigation).
The jurisdictional concept of “foreseeability” involves fewer contacts than those in
International Shoe. In its most naked form, foreseeability posits that, although the defendant has
few contacts with the jurisdiction asserting authority over him, he is able to foresee both that his
actions might cause some injury there and, especially, that he may be hailed into court there to
defend his behavior. World-Wide Volkswagen Corp. v. Woodson, 1980 and Calder v. Jones,
1984.
The concept of hybrid jurisdiction presupposes that the injury in question is not the direct
consequence of the defendant’s activity within the state asserting jurisdiction (did not “arise
from”), but is sufficiently “related to” the defendant’s activity within the state that the exercise of
in personam jurisdiction over him is constitutional. Therefore, the “contacts” between the
defendant and the state are somewhat independent of the cause of action. Personam jurisdiction
is possible only because of the substantial relationship between the defendant’s activity in the
state and the fact that the cause of action is also related to it (this is the “hybrid”). However, the
defendant’s contacts are usually more than “minimum” (although less than general). Cornelison
v. Chaney, 1976 and Helicopteros Nacionales de Columbia S.A. v. Hall, 1984.
“Derivative jurisdiction” refers to the ability of a court to exercise personal jurisdiction
over an absent defendant because the court has jurisdiction of a party related to that defendant.
Jurisdiction over the former derives from jurisdiction of the latter. Their relationship is
frequently that of an agent and principal, or principal and subsidiary, although other relationships
will suffice. For example, a court can assert jurisdiction over an absent principal because it has
jurisdiction of the principal’s agent. Because of the substantial legal connection between agent
and principal, that is a fairly easy case. If the relationship between the parties is legal only, and
they otherwise operate independently of one another, derivative jurisdiction is unlikely. If,
however, one entity is wholly owned by the other and there is interdependence in their
operations, then jurisdiction of one can result in derivative jurisdiction of the other. It is
important that their activities be so interrelated and intertwined that the activity of one can fairly
be attributed to the other.
Continuance of jurisdiction is a rarely invoked form of personal jurisdiction that does not
involve an independent basis for jurisdiction, but simply recognizes the continuation of properlyestablished jurisdiction, sometimes for considerable periods of time. Continuation presumes that
the initial jurisdiction of the court was valid and that no event has occurred which would
interrupt it. The best example is the administration of an estate. Jurisdiction commences when a
probate court asserts control over a local estate and does not end until the proceeds are
distributed and the administrator is discharged (perhaps years later). Over this entire period of
time, the jurisdiction of an original court would continue, notwithstanding that parties may
personally depart the jurisdiction. Michigan Trust Co. v. Ferry, 1913.
In order for a court to assert rem jurisdiction it usually needs only to identify property
(movable or immovable, tangible or intangible) within its geopolitical boundaries that is subject
to court attachment, garnishment or sequestration. Classic rem jurisdiction exists when a plaintiff
identifies a res within the state’s authority, asserts jurisdiction over it, and proceeds to litigate
interests or rights in the res itself. Examples are title related claims lodged with an admiralty
court to initiate an admiralty action to determine rights in a vessel, or an action to quiet title to a
piece of real estate.
Reading Comprehension
Exercise 1. Discuss the text answering these questions.
1. What major parts is the text divided into?
2. What connections between the forum and the defendant are deemed to be strong enough
to justify general personam jurisdiction?
3. What problems does mere physical presence pose for the exercise of general jurisdiction?
4. What reason is given for the court's ability to assert its legal authority over a domiciliary?
5. In what way is the nexus of residence as a jurisdictional basis resemble that of domicile?
6. In what situations, typically, does nationality serve as a jurisdictional basis?
7. When is physical presence recognized as a valid basis for establishing general
jurisdiction?
8. What are the common grounds for attacks on jurisdiction in case it was asserted on the
basis of physical presence?
9. What immunities from or privileges against the exercise of general jurisdiction are
mentioned in the text?
10. How many and what bases for special jurisdiction are covered in the text?
11. What is meant by voluntary appearance in the forum to grant it a basis for asserting
special jurisdiction?
12. How can consent to be amenable to the forum's jurisdiction be expressed?
13. What particular bases for long-arm jurisdiction are considered in the text?
14. What is meant by constructive consent?
15. In what circumstances can "minimum contacts" enable the exercise of long-arm
jurisdiction?
16. (Optional) Comment on the cases illustrating the exercise of long-arm jurisdiction based
on "minimum contacts".
17. What considerations serve as guidelines for the US Supreme Court in establishing the
restrictions on asserting "minimum contacts" jurisdiction?
18. What role does the concept of foreseeability play in justifying "minimum contacts"
jurisdiction?
19. How is the concept of hybrid jurisdiction explained?
20. What does derivative jurisdiction mean and how is it invoked?
21. What does continuance of jurisdiction presume?
22. What does the court need in order to assert its rem jurisdiction?
Summarizing
Exercise 2. Write a plan of the text.
Exercise 3. Express each item of the plan in a few sentences and write a summary using relevant
speech links and clichés (See Part I).
UNIT 3
CHOICE OF LAW RULES
Part I
Legal Terms
1.
conflict of laws
коллизионное право
2.
conflict of law rule
коллизионная норма
3.
applicable law
применимое право, применимый закон
4.
formal validity of smth
формальная действительность чего-либо
5.
be governed (by)
регулироваться чем-либо
6.
issue
зд.: предмет судебного разбирательства, спорный
вопрос
7.
cumulatively
совокупно
8.
legal category
правовая категория (в российском праве эта
часть коллизионной нормы называется
"объемом")
9.
connecting factor
коллизионная привязка
10. fall (into)
1) содержать (две или более различных частей);
2) относиться к чему-либо, подпадать под
(категорию)
11. ascertain
устанавливать, определять
12. which is alleged to be
который заявляется в качестве
13. succession
правопреемство, наследование
14. the deceased
покойный, умерший
15. patent conflict
явная, очевидная коллизия
16. characterisation
квалификация (в коллизионном праве)
17. renvoi [¸ron'vwa:,ren'voi]
отсылка; отсылка к третьему закону
18. personal law
персональное право, персональный, личный
закон
19. (habitual) residence
(привычное) местожительства
20. nationality
1) гражданство, подданство;
2) национальная принадлежность,
национальность
21. forum
1) суд, юрисдикция, судебный форум; 2) место,
где слушается дело
22. authority
зд. полномочие
23. Russel J (Justice)
судья Рассел
24. quasi [‘kweizai]
квази (как бы, как будто)
25. contain a foreign element
содержать иностранный элемент
26. be called upon to do smth
быть призванным сделать что-либо
27. sound in contract / tort
иметь отношение к договорному / деликтному
праву
28. realty
недвижимость, недвижимое имущество
29. personalty
движимость, движимое имущество
30. (French) domiciliary
(французский) домицилиарий, лицо, имеющее
домициль (во Франции)
31. bring an action
заявить (возбудить, вчинить, подать) иск;
возбудить судебное дело
32. hold
выносить решение (о суде)
It was held
33. procedural
procedural question
Суд вынес решение
процессуальный
процессуальный вопрос
34. substantive
материально-правовой
35. obscurity
неясность
36. limitation of actions
исковая давность
37. turn the law round
изменить закон
38. It is not sought to
мы не ставим своей целью
39. in vacuo
лат. в вакууме, в пустоте
Reading Comprehension
Exercise 1. Answer these questions.
1. You are studying Private International Law. Do you know what else this branch of law is
called?
2. What is its purpose?
3. In what cases are the rules of PIL relevant?
Exercise 2. Study the list of Latin terms. Mind the way they are pronounced in English.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
lex causae
lex actus
lex domicilii
lex fori
lex loci actus
lex loci contractus
lex loci celebrationis
lex loci delicti commissi
lex loci solutionis
lex situs
[leks 'ko:zi:]
[leks 'æktэs]
[leks ¸domi'siliai]
[leks 'fo:rai]
[leks 'losai 'æktэs]
[lex 'losai kэntr'æktэs]
[leks 'losai¸selэb¸rei∫i'ounis]
[leks 'lousai dэliktai kэ'missai]
[leks 'lousai sэ¸lu∫i'ounis]
[lex'saitэs]
Exercise 3. Match the following definitions (a-j) with the Latin terms (1-10) in Exercise 2 and
translate them into Russian. Use a dictionary if needed. Translate the Latin terms into Russian.
a
b
c
d
e
f
g
h
i
j
the law of a person’s domicile
the law administered by the court hearing the case
the law which governs an issue
the law of the place where a transaction is concluded
the law of the place where property is situated
the law of the place of the celebration of a marriage
the law of the place of performance (of a contract)
the law governing a transaction, such as the
applicable law of a contract
the law of the place where a tort is committed
the law of the place where a contract is concluded
Exercise 4. Read the part Analysis quickly, consulting the Vocabulary List if needed, and say
what problems are considered in the text.
Exercise 5. Read the part Connecting factors quickly, consulting the Vocabulary List if needed,
and say what problems are considered in the text.
Exercise 6. Read the part Characterisation quickly, consulting the Vocabulary List if needed,
and say what problems are considered in the text.
Text 1. Choice of law rules
(Abridged from Conflict of Laws by J.G. Collier)
Analysis
The conflict of laws, in so far as it is concerned with the choice of the applicable law,
consists of only a small number of rules; the problems tend to arise, as in most areas of the law,
with the exceptions. But, for the moment, we will stay with the general rules. These can all be
stated in the same simple form, for example:
(a)
(b)
(c)
(d)
(e)
(f)
The formal validity of a marriage is governed by the law of the place of celebration.
Capacity to marry is governed by the law of the parties' domiciles.
Succession to movable property is governed by the law of the last domicile of the deceased.
Succession to immovable property is governed by the lex situs.
Procedure is governed by the lex fori.
Contracts are governed (in general) by the law intended by the parties.
Some issues are governed by more than one system of law, either (i) cumulatively, as: at
common law liability for alleged torts committed abroad is governed by both the lex fori
(English law) and the law of the place where the event took place; or (ii) alternatively, as: formal
validity of contracts is governed by either the law of the place of contracting or by the applicable
law.
These rules can all be analysed in the same manner. Thus: 'succession to immovables is
governed by the lex situs' falls into two parts: (i) 'succession to immovables' and (ii) 'situs'.
'Formal validity of a marriage is governed by the law of the place of celebration' falls into (i)
'formal validity of marriage' and (ii) 'place of celebration'.
The parts as in (i) are sometimes called 'operative facts', but a more accurate name for
them is, perhaps, 'legal categories'. They are like pigeon-holes into which the legal issue
disclosed by the facts of cases may be placed. The parts as in (ii) are called 'connecting factors',
since they connect the legal categories to the applicable law.
There are not many legal categories; they may be ascertained by looking at the headings
and sub-headings of most of the chapters of this book; similarly there are not many connecting
factors.
This may seem fairly straightforward, but there are difficulties about it. Problems may
occur because of conflicts between different legal systems and they may arise in three ways.
(1) The case may fall into one legal category in the view of the lex fori (English law) but
into another by the foreign law which is alleged to be the lex causae, or applicable law.
Thus, English law may regard the case as being concerned with formalities of marriage,
but French law may regard it as raising the question of capacity to marry.
(2) English law and the foreign (say, French) law may agree on the legal category, and on
the connecting factor. But this conceals a latent conflict, because the two laws mean
different things by the connecting factor. Thus, under both laws succession to movables is
governed by the law of the last domicile of the deceased. However, by the English law of
domicile, he died domiciled in France; under French law he died domiciled in England.
(3) There is a patent conflict between the respective choice of law rules, since they employ
different connecting factors, as where English law regards succession to movables as
governed by the law of the domicile, but by the foreign law it is governed by the law of the
nationality.
(1) involves the question of 'characterisation'; (2) involves the question of the
interpretation of the connecting factor; (2) and (3) both involve the doctrine of renvoi.
These three will be dealt with in the following order: (i) the connecting factor, since it is
the easiest, (ii) characterisation and (iii) renvoi.
Connecting factors
The connecting factors employed by the conflict of laws are not very numerous. They
include the personal law (domicile, habitual residence and, very rarely, nationality), the place
where the transaction takes place (as place of celebration of a marriage or the place of
contracting), the place of performance (as in contracts), the intention of the parties, the situs (the
place where property is situated) and the place where the court (forum) is sitting.
Since the conflict of laws forms part of English law, English law alone can determine
when a foreign law is to be applied. It follows from this that English law must not only select the
connecting factor, it must also say what it means. This is clear, though it is only in respect of two
connecting factors, domicile and, for jurisdictional purposes, the place of contracting, that
authority exists.
Thus, if both English and French law use domicile as a connecting factor, but by English
law a person is domiciled in France and by French law in England, he will be regarded by an
English court as domiciled in France. In Re Annesley
Mrs A died domiciled in France according to English law. By French law she had never acquired
a domicile there. Russell J held that Mrs A died domiciled in France.
In two cases the English courts have determined, by applying rules of the English law of
contract, whether a contract was concluded in England or abroad. In fact, in neither case did
either party think it is worth arguing that the matter should be determined by a foreign law.
There can be no doubt that if it should be necessary to determine the situs of property, for
example, a bank account at a New York bank's English branch, English law would apply, and the
situs would be England, even if by New York law it would be New York.
There are two exceptions to this general rule. These are: (i) nationality - this can only be
determined by French law if a person is alleged to be a French national; (ii) for jurisdictional
purposes, two statutes provide that in certain cases, domicile shall be as determined by the
foreign law in question.
There is also a quasi-exception. If, as in Re Annesley, the English court decides that a
person died domiciled in France, but continues by applying renvoi (which will shortly be
discussed), and pretends that it is a French court, it is then applying the French conflict rules and
not those of English law and this will entail a determination that the deceased died domiciled in
England.
Characterisation
We have seen that the process known as 'characterisation' is sometimes necessary because
English law may regard a case as falling into one legal category but the relevant foreign law
believes it to belong in a different one. This process is undertaken also in cases which do not
contain a foreign element; a court may be called upon to determine whether the issue sounds in
contract or in tort, or whether property is realty or personalty, but it is obviously more difficult
where a foreign element is present.
Examples of characterisation are to be found throughout this book, where they are
discussed in some detail. They include questions such as whether two different requirements of
French law, that a French domiciliary required his parents' consent to his marriage, which was
celebrated in England, concerned formal validity, which was a matter for English law, or
capacity to marry and so was governed by French law. In two cases it was held that these French
requirements concerned formal validity and so were irrelevant in the case. In another case the
question was whether a rule of English law which required that in order for an action to be
brought on a contract there must be written evidence thereof, was a rule of evidence and thus
procedural, so that it applied by virtue of the lex fori to a contract governed by French law. It was
held that it was procedural, and applied. In several cases the question was whether a rule of a
foreign law requiring an action to be brought within a certain period of time was substantive and
applicable, or whether it was procedural and irrelevant. The courts held that it was procedural.
The question has arisen whether a sum awarded as part of a judgment by a foreign court and
described by the foreign law as a penalty, though it was not so regarded by English law, should
be characterised as a penalty or not. It was held that English law governed the matter, and it was
not a penalty.
It will be observed from these examples that the English courts have generally
characterised the issue before them according to their own notions; this will be illustrated further.
The problem of characterisation is one of the most difficult in the conflict of laws, and it
has generated an enormous amount of writing in many languages. It might well be thought that
its difficulties and obscurities increase in direct proportion to the increase in the quantity of
juristic discussion of it. There is considerable difference of opinion as to how the problem should
be solved. The courts are usually criticised for solving it the wrong way and nearly all the cases
referred to above have been the subject of severe criticism. It is true that the solutions arrived at
have caused, or are capable of causing, considerable difficulties. This is so much so that in one
area, limitation of actions. Parliament has had to step in and turn the law round. It is not sought
to add to the confusion here, it is merely desired to state the problem, illustrate it, discuss briefly
the chief methods which writers have suggested as solutions for it, and to illustrate the whole
matter by giving some English cases by way of example.
Before proceeding further it has to be said that there has been very great debate and
confusion right at the start of the inquiry as to what it is that is characterised. Is it a 'legal
relation', 'a legal claim', 'a legal question', 'a factual situation', the 'facts of the case', or 'the rule of
English (or foreign) laws'? The real question is whether it is the facts or factual situation, or a
legal question. Since some aspects of characterisation clearly do not involve the facts this leads
to the conclusion that it is a legal question.
It is proposed to adopt this view. One reason is that although any case, of course, involves
the facts, what the choice of law rule points to is the legal rules of some system. The facts are
those data which enable the judge to formulate, as he must always do, a legal issue which leads
to the application of a legal rule. A judge or a lawyer is not interested in facts in vacuo, and they
cannot be characterised in the abstract, but only by formulating the legal categories; these are
categories of legal questions.
Vocabulary Work
Exercise 7. What Latin and English terms do the following definitions in Russian correspond to?
1. закон места бракосочетания
2. закон места совершения или исполнения договора
3. право, свойственное договору; право, регулирующее существо отношений в
договоре
4. закон места нахождения имущества
5. закон места совершения преступления или правонарушения
6. закон места совершения акта или сделки
7. закон домицилия
8. закон суда
9. закон места исполнения сделки
10. закон, регулирующий сделку (напр., применимое право в договоре)
Exercise 8. Define the following:
1. legal category
2. connecting factor
3. characterisation
Exercise 9. Describe the case Re Annesley using the following vocabulary:
legal category, connecting factor, renvoi, domicile, the deceased, to die domiciled in France
(England), succession, lex situs, to be governed by, property.
Exercise 10. Find the following sentences in the text. Read them silently, understand them, then
read aloud with the correct intonation. Translate them into Russian.
1. The courts are usually criticised for solving it the wrong way and nearly all cases
referred to above have been the subject of severe criticism.
2. It is true that the solutions arrived at have caused, or are capable of causing,
considerable difficulties.
3. Before proceeding further it has to be said that there has been very great debate and
confusion right at the start of the inquiry as to what it is that is characterized.
4. One reason is that although any case, of course, involves the facts, what the choice of
law points to is the legal rules of some system.
Exercise 11. Match these legal concepts with their definitions.
A
B
applicable law
personal law
1
2
C
forum
3
D
procedural law
4
E
limitation of actions
5
F
personalty
6
G
H
substantive law
domicile
7
8
the place or country where the case is being heard
statutory rules limiting the time within which civil
actions can be brought
the laws of a jurisdiction that apply to a particular
transaction or agreement
all property that does not comprise land or intangible
rights in land
the body of connecting factors including domicile,
habitual residence, nationality, citizenship
the part of the law that deals with rights, duties and
all other matters that are not matters purely of
practice and procedure
the place or country in which a person has his home
the place or country that a person treats as his
personal home and to which he has the closest legal
I
habitual residence
9
J
succession
10
attachment
the law and procedure under which beneficiaries
become entitled to property under a deceased
person’s will or on intestacy
the part of the law that deals with practice and
procedure in the courts
Analytical Reading
Exercise 12. Read the part Characterisation and divide it into sections according to the main
points considered in it. What are those points? Formulate them as questions and answer them.
Consult the Vocabulary List if needed.
Exercise 13. Decide whether the following statements are true or false.
1. The presence of a foreign element simplifies the problem of characterization.
2. Procedural rules are governed by lex fori.
3. It is the factual situation that is characterized in cases with a foreign element.
4. The question of evidence belongs to substantive rules.
Exercise 14. Answer the following questions about the text.
1. What is the structure of a law rule in conflict of laws?
2. What difficulties may arise in connection with legal categories?
3. What difficulties may arise as far as connecting factors are concerned?
4. What are the legal means of overcoming those difficulties?
1. What connecting factors are employed by conflict of laws?
2. What does personal law include?
3. Why is it necessary to give the interpretation of a connecting factor?
4. Whose obligation is it to select and interpret the connecting factor?
5. What are the exceptions to this general rule?
6. Why do you think it was important to determine the domicile of the deceased Mrs A? What
possible legal category might be necessary to be determined in this case?
Summarizing
Exercise 15. Write a short summary of the three parts of the text you have read.
CHOICE OF LAW RULES
Part II
Legal Terms
1. lex fori
закон места рассмотрения дела
2. prevailing theory
господствующая (доминирующая) теория
3. adopt in practice
применять на практике
4. characterize the issue
квалифицировать предмет судебного
разбирательства
5. legal category
правовая категория (в российском праве эта
часть коллизионной нормы называется
«объемом»)
6. domestic law
внутригосударственное право, национальный
закон
7. rule of law
норма права
8. parental consent to marriage
родительское согласие на брак
9. pertain to formalities
иметь отношение к формальностям
10. render the foreign rule
inapplicable
считать норму иностранного права
неприменимой
11. matrimonial property
общая собственность супругов
12. lex causae
право, свойственное договору; право,
регулирующее существо отношений сторон в
договоре
13. governing law
применимое право
14. compel
заставлять, принуждать
15. idiosyncratic foreign
characterization
идиосинкразическая (отличительная,
характерная) квалификация по иностранному
праву
16. validly married
состоящий в законном браке
17. resort to public policy
обращаться к публичному порядку (как к
средству)
18. comparative conflict of laws
сравнительное коллизионное право
19. analytical jurisprudence
теоретическая юриспруденция (направление,
разработанное Джоном Остином и Иеремией
Бентамом)
20. principles of universal
application
принципы всеобщего применения
21. comparative law
сравнительное право
22. length and cost of litigation
продолжительность и стоимость судебного
разбирательства
Other Vocabulary items
1.
by and large
в общем и целом
2
raise objections (to)
выдвигать возражения
3.
proponent
сторонник
4.
Roman Catholic priest
католический священник
5.
espouse
поддерживать
6.
professedly
явно, открыто
7.
drawback
недостаток, отрицательная сторона
8.
disclose similarities
раскрыть сходства
Text 2. Approaches to the problem of characterisation
(Abridged from Conflict of Laws by J.G. Collier)
Various solutions to the problem of characterisation have been put forward; four will be
mentioned.
The lex fori theory
This was proposed by the German and French writers, Kahn and Bartin, who 'discovered'
the problem in the 1890s. It has been the prevailing theory on the Continent, and by and large
has been adopted in practice by the English courts. According to this theory the court should
characterise the issue in accordance with the categories of its own domestic law, and foreign
rules of law in accordance with their nearest analogy in the same law. Thus, a French rule
requiring parental consent to marriage should be characterised as pertaining to formalities, since
English law so regards its own rules regarding parental consent.
Objections raised to the lex fori theory are that its application may result in a distortion of
the foreign rule and render it inapplicable in cases in which the foreign law would apply it, and
vice versa. Moreover if there is no close analogy in the domestic law (as there is no analogy in
English law to the matrimonial property regime known to foreign laws), the theory does not
work. Lastly, its proponents sometimes seem to suggest that it is facts alone which have to be
classified, but this is not so; it is facts which are presented in the light of a foreign law.
The lex causae theory
According to this theory, classification should be effected by adopting the categories of
the governing law. It is sometimes suggested that at least one English decision is based on this
method, though this is, perhaps, doubtful. There are two serious objections to this theory. First,
the whole purpose of characterisation is to discover what law governs the issue. To say that the
governing law dictates the process of characterisation is to argue in a circle, for how can we
know what the governing law is until the process of characterisation is completed? Secondly, if
there are two possible foreign laws to govern the matter, and they characterise the issue
differently, which is to be adopted by the English court? It may be added that the adoption of this
theory could compel the adoption of idiosyncratic foreign characterisation, such as the wellknown rule of Maltese law that a Maltese person can only be validly married, wherever the
ceremony takes place, if he or she goes through a ceremony before a Roman Catholic priest. The
court would have to resort to public policy to avoid this consequence.
Analytical jurisprudence and comparative law
This theory was espoused by the author of the encyclopaedia of comparative conflict of
laws, Ernst Rabel, and views similar to his were advanced in England by W. E. Beckett, who
said that conflicts rules should use 'conceptions of an absolutely general character', and that these
conceptions are borrowed from analytical jurisprudence, that general science of law, based on
the results of the study of comparative law, which extracts from this study essential general
principles of professedly universal application - not principles based on, or applicable to, the
legal system of one country only.
This is at first sight attractive, but it has its drawbacks. First, few universal principles are
disclosed by analytical jurisprudence and comparative law which would be of assistance in this
area. Secondly, though comparative law may disclose similarities between legal systems, it may
also disclose differences, which it is hardly capable of resolving; thus it may show that
requirements of parental consent to marriage pertain to formalities in some systems or to
capacity in others or do not exist in others, but this does not tell us how in the case before us
these differences are to be settled. Thirdly, it is rather impractical; it would be asking too much
of legal advisers and judges to undertake the exercise involved, and one cannot imagine them
doing so. This method would certainly add to the length and cost of litigation.
Falconbridge's views
The Canadian lawyer, Falconbridge, proposed a two-stage process. The first stage, a task
for the lex fori, is to define the scope of the legal category, the categories not being those of the
domestic legal system but of its private international law, and the second is to examine the
relevant foreign rule in its own context to see whether it can be fitted into the legal category in
question.
Reading Comprehension
Exercise 1. Answer the questions on Text 2.
1. Where and when did the lex fori theory appear?
2. Has the lex fori theory ever been adopted in practice by English courts?
3. How should the court characterize the issue and foreign rules of law according to the lex fori
theory?
4. What three objections were raised to the lex fori theory?
5. According to which theory should classification be effected by adopting the categories of the
governing law?
6. How many objections are there to the lex causae theory? What are they?
7. What does “idiosyncratic foreign charactarisation” mean? Give the example from the text.
8. How can the court avoid the consequences of idiosyncratic foreign characterization?
9. What is the essence of analytical jurisprudence?
10. Which conceptions are to be used by conflicts rules according to analytical jurisprudence
and comparative law?
11. Why is the theory of analytical jurisprudence and comparative law not perfect for the
purposes of conflict of laws?
12. What are the purposes of the first stage and the second stage of Falconbridge’s theory?
Summarizing
Exercise 2. Write a plan of the text.
Exercise 3. Express each item of the plan in a few sentences and write a summary using relevant
speech links and clichés.
Unit 4
SUBSTANCE AND PROCEDURE
Part I
Legal Terms
1.
burden of proof
бремя доказывания
2.
sufficiency of proof
обоснованность, достаточность доказательств
3.
manner of proof
способ доказывания
4.
evidence
доказательство, доказательства, улика, улики
5.
introduce evidence
представить доказательства
admissible evidence
допустимое доказательство
evidence by writing
подтверждать в письменной форме,
засвидетельствовать письменно
codicil to a will
challenge a codicil
дополнение к завещанию
оспорить дополнение к завещанию
6.
execute a will
оформлять завещание
7.
testator
завещатель, наследодатель
8.
testamentary capacity
завещательная право- и дееспособность
9.
presumption
презумпция
presumption of law
правовая презумпция
presumption of fact
фактическая презумпция
presumption of legitimacy
презумпция законнорожденности
presumption of sanity
презумпция вменяемости
(ir)rebuttable presumption
(не)опровержимая презумпция
10.
recover judgment
получить судебное решение в свою пользу,
получить возмещение по суду
11.
enforce judgment
исполнить судебное решение принудительно
12.
enforceable contract
договор, могущий быть принудительно
исполненным в исковом порядке
13.
guarantee
гарантия, поручительство
14.
limitation of an action
исковая давность
limitation period
давность, срок давности (иска)
extend a limitation period
продлить срок исковой давности
15.
bar an action
препятствовать (за давностью) возбуждению дела
16.
extinguish a right
аннулировать, уничтожить право
17.
literal wording
буквальная, дословная формулировка
18.
dismiss an action
отклонить, прекратить иск; отказать в иске
19.
enact
устанавливать, предписывать в законодательном
порядке; принимать (о законе)
20.
prescription
право давности (приобретение или утеря права по
сроку давности)
prescription and limitation
of actions
срок исковой давности
21.
give effect
исполнить, приводить в действие
22.
judgment on the merits
решение по существу (дела)
23.
provide a good defence
предоставить юридически обоснованное
возражение
24.
damages
возмещение убытков, ущерба; компенсация
recover damages for pain
and suffering
получить возмещение за моральные и физические
страдания
quantification of damages
количественное измерение убытков
25.
remoteness of damage
удаленность ущерба, косвенная причина ущерба
26.
lex causae (Latin: the law of
the case)
лат. применимое (как правило, иностранное) право
Reading Comprehension
Exercise 1. Before you read the text, discuss the following questions.
1. What is understood by the terms substance and procedure?
2. What is the importance of distinguishing between matters of procedure and those of
substance in the context of conflict of laws?
3. What problems may the courts face when classifying questions as substantive or
procedural?
Exercise 2. Look through the Introduction quickly to find the answers to the questions in Ex.
1. Compare your ideas with the author’s view on these issues.
Exercise 3. Read the relevant sections of the text to complete the following sentences.
1. Substantive issues are those which concern the existence of a __________ whereas
procedural issues are those which concern the method and __________.
2. Article 14 of the Rome Convention provides that a contract may be decided by the
methods of __________ or by those of the __________ or by those of the ________.
3. Whether particular evidence is admissible is a matter of ________, but whether oral
evidence is admissible in order to________ is a matter of _________.
4. The Act provides that all limitation periods, both English and foreign, should be
classified as ________ so that the _________ would be applied.
5. Remoteness of damage, which is a _________ matter, is governed by the _________, and
measurement or ________ of damages, which is a question of_________, is governed by
the_______.
Exercise 4. Read the text carefully and decide whether the following statements are true or
false. In the case of false statements, correct them.
1. The lex fori governs procedural issues, whereas the lex causae may govern substantive
matters.
2. It is easy enough to distinguish between substantive and procedural rules.
3. According to the majority decision of the House of Lords, the question whether damages
for pain and suffering could be obtained was for the lex causae to determine.
4. A great deal of unnecessary difficulty and confusion has been generated when English
courts have classified foreign rules of law as procedural.
5. In Re Fuld, whether the testator knew and approved of the contents of three codicils to
his will was a matter for English law to determine.
6. Some presumptions of law are deemed to be substantive since their application
determines the outcome of the case.
7. It has been the rule of English law that all limitations periods are merely procedural.
8. In Leroux v. Brown the oral agreement made between an English employer and a French
employee could not be enforced by English law because it was rendered invalid.
Text 1. Substance and procedure
(Abridged from Conflict of Laws by J.G. Collier)
Introduction
Matters of procedure are governed by the lex fori, English law, whatever be the lex causae, for
example, the French governing law of a contract. Whether a question is procedural or substantive
has presented difficulties of classification, as has the question of whether a foreign rule of law
affects procedure or substance. It is easy enough to state that substantive issues are those which
concern the existence of a right whereas procedural issues are those which concern the method
and means of enforcement of a right. But acute difficulties may be encountered in deciding
whether even an English rule is procedural or substantive. Thus, in Chaplin v. Boys the majority
of the House of Lords regarded the question whether a victim of the tort of negligence could
recover damages for pain and suffering as concerned with remoteness of damage, whereas the
minority appeared to think that it was a question of quantification of damages. Remoteness is a
question of substance, quantification is one of procedure.
Matters have been made worse by the almost inveterate habit of English judges of
classifying questions and rules of law as procedural, so leading them to apply English law. In
one context the result led to such difficulties that Parliament intervened.
In what follows, four topics will be discussed in some detail: (a) evidence, (b) limitation
of actions, (c) remedies and (d) priorities.
Evidence
Questions of evidence, such as what has to be proved, how it may be proved, and the sufficiency
of proof, are clearly procedural. The same is true of the burden of proof. In Re Fuld (No.3),
three codicils to a will executed by a testator who died domiciled in Germany were challenged
on the ground that he lacked testamentary capacity because of illness, and that he did not ‘know
and approve’ of their contents. Scarman J held that whether illness affected capacity was a
matter for German law, the lex causae, but that, the burden of proof being a procedural matter,
the English rule to the effect that in cases of doubt ‘knowledge and approval’ must be
affirmatively demonstrated to have existed must be applied.
But this question is complicated by the existence of presumptions in English and foreign
laws. These may be presumptions of law, which are either irrebuttable, as until 1993 that a boy
under the age of fourteen is incapable of sexual intercourse, or rebuttable, as is that of legitimacy.
Or they may be presumptions of fact, such as the presumption of sanity. It is obvious that some
presumptions, such as the one concerning a boy under fourteen, are substantive in effect since
their application determines the outcome of the case. In one case this view led to conflicting
English and German presumptions both being classified as substantive and the latter, which
formed part of the lex causae, was applied. In Re Cohn
A mother and daughter, both domiciled in Germany, were killed together in an air
raid on London and it was impossible to determine for the purpose of deciding a
question of entitlement to the mother’s estate, which died first. By English law,
the mother, being older, was presumed to have died first, by German law they
were presumed to have died simultaneously.
It was held that, though the method of proof was a matter of procedure, this was of no use
when it was impossible to decide who died first. The issue was really substantive, and German
law as the lex causae applied.
The Rome Convention on the Law Applicable to Contractual Obligations (1980) does not
apply to evidence (Art. 1(2) (b)). But Article 14 provides that the contract’s applicable law, not
the lex fori, governs, to the extent that it contains, in the law of contract, rules which raise
presumptions of fact or determine the burden of proof. Though some foreign laws of contract
may contain such rules, there appear to be none in the English law of contract.
As respects the manner of proof, such as whether written evidence is required, this was
held in the old and much criticized decision in Leroux v. Brown to be a question of procedure and
so governed by English law.
By an oral agreement made in France an English resident agreed to employ the
plaintiff, a French resident, in France for more than a year. The contract was valid
and enforceable by its French proper law, but though valid was not enforceable by
English law since it was not evidenced by writing as required by the Statute of
Frauds 1677.
The court, influenced by the fact that the relevant English statutory provision began with
the words ‘no action shall be brought’, held that the issue and the English rule were procedural,
that the latter applied and that the contract could not be enforced. This decision has been attacked
on the grounds that the issue was effectively one of substance since it made no difference
whether the contract was invalid or only unenforceable – the claimant lost either way – and that
the English rule could have been outflanked if the claimant had either done some act in part
performance of the contract or recovered judgment in France and then enforced that judgment in
England. The case was not followed in California.
It seems that Leroux v. Brown would now be decided differently. The Rome Convention,
1980, Article 14(2) provides that a contract may be decided by the methods of English law or by
those of the applicable law or by those of the law of the place of contracting. It needs only to
apply the last two types of rule if it can administer them. Suppose that a guarantee is governed by
French law or was given in France, and French law treats a verbal guarantee as valid and allows
it to be proved by oral evidence. Since English courts can obviously hear oral evidence, they
must admit such testimony of the guarantee.
Whether particular evidence is admissible, as for example, an unstamped document, or a
copy of a foreign document, or whether oral evidence may be introduced to vary, add to or
contradict a written document, is a question of procedure. But whether oral evidence is
admissible in order to interpret a written document is a matter of substance and so governed by
the lex causae.
Limitation of actions.
Rules governing the period of time during which an action must be brought are, in legal systems
generally, of two kinds: first, those which merely bar the action, which are procedural; second,
those which extinguish the plaintiff’s rights, which are substantive. Most English rules are of the
first type. Moreover the English courts have almost always regarded a rule of foreign law in the
same light, usually in reliance upon its literal wording. The result has been that the English rule
has almost always been applied. Many foreign systems regard their own limitation rules as
substantive, and the conflict of characterization can lead to undesirable results, especially where
an action abroad has been dismissed on the ground that a limitation period has expired, but an
English action is allowed to continue.
The Law Commission criticized the existing law in 1982 and its recommendations were
enacted in the Foreign Limitation Periods Act 1984. The matter is also dealt with as regards
actions on contracts by Article 10(1) (d) of the Rome Convention, 1980 which states that
prescription and limitation of actions are governed by the contract’s applicable law. The Act
provides that all limitation periods, both English and foreign, and whether the latter are
classified as substantive or procedural by the foreign courts, should be classified as substantive
so that the foreign rule would be applied. But this would not prevent the court refusing in its
discretion to apply the foreign rule on the ground of public policy, or where its application would
cause undue hardship. Any extension of the limitation period allowed under the foreign law is to
be given effect except where it is extended because of either party’s absence from the
jurisdiction; otherwise, if a party were to stay out of that jurisdiction permanently, the case
would never be decided. A foreign judgment on a limitation point is now regarded as a judgment
on the merits and so provides a good defence to a further action here on the same cause of action.
Vocabulary Work
Exercise 5. Suggest Russian equivalents of the following word combinations.
cause undue hardship; admit testimony; follow a case; recover judgment; presumption of
legitimacy; demonstrate affirmatively; a cause of action; the proper law; entitlement to the
mother’s estate; a good defence to a further action.
Exercise 6. Suggest English equivalents of the following word combinations in the text.
по усмотрению (суда); судебное решение по существу; иностранное право; обойти норму;
оспорить на том основании, что; в соответствии с требованиями закона о мошенничестве;
создавать фактическую презумпцию; по причине отсутствия одной стороны на
территории иностранного государства; иностранное судебное решение о сроке давности
иска; полагаясь на буквальное понимание нормы иностранного права.
Exercise 7.
Match the terms in English with their English definitions and translate them into Russian.
1. quantification of
damages
a
2. remoteness of damage
b
3. negligence
c
4. limitation of actions
d
5. priority
e
6. remedy
f
7. classification
g
any of the methods available at law for the enforcement,
protection or recovery of rights or for obtaining redress for
their infringement
the process by which the court is called upon to analyse both
its own law and the foreign law according to its substantive
nature or its procedural nature
the order in which two or more assignments of debts or other
interests takes effect
the method by which the amount of money is awarded by a
court as compensation for a tort or a breach of contract
a tort consisting of the breach of a duty of care resulting in
damage to the claimant
statutory rules limiting the time within which civil actions can
be brought
the legal principle that damage that is insufficiently connected
or foreseeable by a defendant should not make him liable to
the claimant
Exercise 8. Complete the sentences below with the appropriate term from the list above. Use
each term only once.
A. In the case of damages in tort, recovery is limited by rules relating to … .
B. It was held that in such a case the lex loci affects … only and since that issue, being
procedural, is governed by the lex fori, the claimant will recover in full.
C. There is considerable difference of opinion as to how the problem of … should be solved.
D. The foreign law governing the transaction under which one of the competing interests
arose will be consulted to ascertain what its … will be.
E. It is the distinction between right and … that allows the court to determine what in the
foreign law is substantive and what is procedural.
F. The Rome Convention provides that … is governed by the contract’s applicable law.
G. Careless driving by a taxi-driver that causes injury to his passenger is both the tort of …
and breach of contract to carry the passenger safely to his destination.
Exercise 9. Analyse the structure of these sentences in order to understand the meaning and to
render it into Russian adequately.
1. Scarman J held that whether illness affected capacity was a matter for German law, the
lex causae, but that, the burden of proof being a procedural matter, the English rule to the
effect that in cases of doubt ‘knowledge and approval’ must be affirmatively
demonstrated to have existed must be applied.
2. Whether particular evidence is admissible, as for example, an unstamped document, or a
copy of a foreign document, or whether oral evidence may be introduced to vary, add to
or contradict a written document, is a question of procedure.
3. But whether oral evidence is admissible in order to interpret a written document is a
matter of substance and so governed by the lex causae.
4. Any extension of the limitation period allowed under the foreign law is to be given effect
except where it is extended because of either party’s absence from the jurisdiction;
otherwise, if a party were to stay out of that jurisdiction permanently, the case would
never be decided.
5. Thus, in Chaplin v. Boys the majority of the House of Lords regarded the question
whether a victim of the tort of negligence could recover damages for pain and suffering
as concerned with remoteness of damage, whereas the minority appeared to think that it
was a question of quantification of damages.
6. As respects the manner of proof, such as whether written evidence is required, this was
held in the old and much criticized decision in Leroux v. Brown to be a question of
procedure and so governed by English law.
Analytical Reading
Exercise 11. Answer the following questions about the text.
1. What matters are traditionally regarded as substantive or procedural?
2. Why has the classification of rules of law as substantive or procedural presented such
difficulties in the English legal system?
3. How does the author support the argument that it is not always clear whether an English
rule is procedural or substantive?
4. What rules of evidence can indisputably be classified as procedural?
5. What law are presumptions governed by as a general rule?
6. Why difficulties may arise with classification of presumptions and the burden of proof?
7. What legal issue did the claimant in Re Fuld fail to demonstrate affirmatively and what
law was chosen for application and for what reason?
8. Can you explain why in the Cohn case German law as the lex causae was chosen?
9. What cases are considered by the author to show how presumptions and the burden of
proof issues can affect the outcome of the case?
10. Under the Rome Convention, what law other than the lex fori may govern presumptions?
11. What decision did the court reach in Leroux v. Brown? What fact was the court
influenced by?
12. Why has this decision been long criticized?
13. What rules govern the period of time during which an action can be brought?
14. What approach to classification of limitation periods has always been the settled rule of
the English conflict of laws and what changes have been introduced into the existing law
since the enactment of the Foreign Limitation Periods Act?
15. What does Article 10 of the Rome Convention provide?
16. What factors may the English courts consider before applying the foreign rule to
limitation
periods?
Summarizing
Exercise 12. Analyze the logical organization of information in each section of the text to
identify the most important points and express them in no more than two or three sentences of
your own in writing.
Exercise 13. Write a detailed plan of the whole text using your answers from Exercises 11 and
12 as a reference point for structuring your plan.
Exercise 14. Study the speech clichés and link words used in the text and complete the table,
showing the meaning and function of each phrase given below:
speech cliche/ link word
therefore
in what follows
as regards
otherwise
except
both…and…
whereas
moreover
meaning
function
Exercise 15. Write a summary of the text. Make sure that your summary will have: 1) a clear
introduction into the general topic – the importance of the distinction between substance and
procedure in conflicts cases; 2) the main part describing specifically the difficulties of choice of
law for the matters of evidence and the rules of limitation, explaining the reasons for the
conflict of classification and citing the key authority on the points in issue; 3) a clear conclusion
restating briefly what you have said above. Remember to add the appropriate link words and
speech clichés.
Substance and Procedure
Part II
Legal Terms
1.
2.
3.
obtain a remedy
grant a remedy
decree of specific performance
4.
5.
6.
breach of a contract
rescind a contract
grant specific performance
7.
8.
sub-contract losses
damages
damages in tort
damages for breach of contract
damages for pain and suffering
9.
10.
11.
damages for loss of expectation of
life
award damages
recover damages
money of account
money of payment
proper law of the contract
12.
13.
extend a rule
seek enforcement
14.
garnishee order
15.
claim for restitution
16.
to cover a claim on a bill of exchange
17.
execution
execution on land
получить средство судебной защиты
предоставить средство судебной защиты
судебный приказ об исполнении (договора)
в натуре (или реальном исполнении)
нарушение договора
расторгать договор
удовлетворить ходатайство об исполнении
(договора) в натуре
убытки по договору с субподрядчиком
возмещение убытков, компенсация
возмещение деликтного ущерба
возмещение убытков из нарушения
договора
возмещение моральных и физических
страданий
возмещение сокращения
продолжительности жизни
присуждать возмещение убытков
взыскивать в судебном порядке
валюта счета (в которой открыт счет)
валюта платежа
право, свойственное договору
(регулирующее существо отношений сторон
в договоре)
расширить применение нормы
требовать исполнения (например, судебного
решения), требовать обращения взыскания
судебный приказ о наложении ареста на
имущество должника, находящееся у
третьего лица
требование реституции (восстановления
первоначального правового положения,
восстановления в правах)
удовлетворить требование по оплате
векселя
исполнительный лист; исполнительное
производство
исполнительное производство в отношении
недвижимости
18.
priority of debts
19.
assignment of debts
20.
winding up
21.
administration of an insolvent estate
22.
lien
maritime lien
23.
24.
mortgagee
admiralty jurisdiction
очередность долгов (очередность
погашения долговых обязательств одного и
того же заемщика)
переуступка, цессия долгов (передача прав
на долговые обязательства)
ликвидация (прекращение деятельности
компании и распродажа ее имущества)
конкурсное управление имуществом
должника
право удержания, залоговое право; право
наложения ареста (в отношении имущества
должника)
морское залоговое право; право удержания
судна и морского груза
залогодержатель, кредитор
юрисдикция по морским делам
Text 2
Remedies and Priorities
(Abridged from Conflict of Laws by J. G. Collier)
Reading Comprehension
Exercise 1. Read the text to decide which of the headings given below (A—B) matches with the
section (1—4) it summarises.
A. The law governing the currency of judgments
B. The choice of law for the grant of remedies
C. The law applicable to priority of maritime liens
D. Rules for the award of damages in tort and for breach of contract
1
A claimant can only obtain English remedies and so cannot obtain a remedy which exists
by the lex causae but not in English law. He can, however, obtain a remedy available under
English law but not by the lex causae. Thus, a decree of specific performance might be awarded,
though this is not obtainable in the courts of the country whose law governs the contract. But the
claimant will not be granted an English remedy if this would effectively alter the right he has
acquired by the foreign law.
Article 10(1)(C) of the Rome Convention, 1980 states that the applicable law governs the
consequences of breach of a contract, but within the limits of the powers conferred on the court
by English procedural law. This may ensure that the applicable law decides, for example,
whether the innocent party can rescind the contract on account of its breach. It may also
encourage the court to refer the availability of a remedy such as specific performance to that law.
But it need not grant specific performance if, in the circumstances, English law does not permit it
to do so.
In respect of damages, two questions must be distinguished. These are (i) remoteness of
2
damage, or for what types of damage can the claimant recover? which is a question of substance,
and (ii) measurement or quantification of damages, which is a procedural matter. The former is
governed by the lex causae, the latter by the lex fori. In contract, the position can be illustrated
by sub-contract losses; in general these are not recoverable under English law. This is a matter of
remoteness of damage, and if, as in D’Almeida Araujo v. Sir Frederick Becker and Co. Ltd,
damages are recoverable under the (Portuguese) proper law, they will be awarded by the English
court. How much money the claimant will receive in respect of such losses depends on English
law exclusively. The same is true of damages in tort. So, whether damages for pain and suffering
or damages for loss of expectation of life are recoverable is for the lex causae to determine. How
much can be awarded for these is a matter for the lex fori. However, Article 10 (1) © of the
Rome Convention, 1980 provides that the applicable law determines the assessment of damages
for breach of contract.
Until 1975, the English courts could only award damages in sterling, and even if the
3
proper law of the contract was foreign and the money of account and the money of payment were
in foreign currency, the damages had to be converted into sterling. The rate of conversion was
the exchange rate at the date of breach of contract or when the debt was payable or when a loss
was suffered by means of a tort being committed. This ‘breach date’ rule, as opposed to the
‘judgment date’ rule, resulted during the early and mid-1970s, when the pound suffered a
catastrophic fall in value, in injustice to foreign creditors, who saw the real value of the debt they
were owed or the damages they were entitled to decline considerably between the date of breach
and the date of judgment, which might be years later. By a revolution engineered mainly by Lord
Denning MR in a case in which the Court of Appeal disregarded the precedents, for which it was
castigated by the House of Lords, the House of Lords itself reversed the old law and held that in
certain cases the English courts could give judgment in foreign currency. This would only have
to be converted into sterling if the judgment required enforcement, in which case the conversion
would take place at the date at which enforcement is sought.
This case, Miliangos v. George Frank, concerned an action for a debt arising out of a
contract whose foreign proper law was that of the country in whose currency judgment was
requested. But the new rule was extended to cover a claim on a bill of exchange and to damages
for breach of contract. It was further extended to cases of contract where the governing law was
English law, and to tort, in cases in which it was held that the claimant may recover in the
currency in which his loss was effectively felt, having regard to the currency in which he
normally operates or with which he has the closest connection; failing any evidence of which, it
would be the currency in which the loss was incurred. The rule has also been applied to, for
example, garnishee orders, claims against a company in liquidation and claims for restitution.
The method of execution, for example, whether attachment of a debt or execution on
land or goods is available, is determined by the lex fori.
4
The question of what law governs the priority of assignments of single debts or other
interests will be discussed later. In the case of priorities of claims against funds administered by
an English court, such as winding up, bankruptcy and administration of insolvent estates, it is
clear that English law as the lex fori orders priorities. The same is true of claims against a ship
when the court is exercising its Admiralty jurisdiction. Thus, in The Tagus:
Claims were brought against an Argentine ship. The master claimed a lien for wages and
disbursements on several voyages. Under Argentine law he only had priority for the lien
for the last voyage; under English law this extended to all voyages.
It was held that the English rule applied.
In this case the interest which arose under the foreign law was one with which English
law was familiar. If it is not, the foreign law governing the transaction under which one of the
competing interests arose will have to be consulted to ascertain what the interest amounts to, but
English law will determine whether it amounts to a maritime lien and what its priority will be.
Thus, in The Halcyon Isle:
An English bank was the mortgagee of a ship. She was repaired in New York. By New
York law the repairers had a maritime lien for the price of the repairs. The ship left New
York and arrived in Singapore where the mortgagees arrested her. She was sold by court
order.
The Privy Council held that the mortgagees had priority over the New York repairers or
‘necessaries men’. These may have had a maritime lien under New York law, but had none by
the lex fori (Singapore) which determined what classes of events gave rise to a maritime lien and
priority between such liens.
Summarizing
Exercise 2. Answer the following questions to see exactly how the text is organized and what
important points each section of the text contains.
1.
2.
3.
4.
What law governs the grant of remedies?
On what grounds may the claimant be refused an English remedy?
What two questions must be distinguished in respect of damages and for what reason?
What law, under the Rome Convention, may determine consequences of breach of
contract?
5. In what currency could damages be awarded by the English courts until 1975?
6. Can the English courts nowadays give judgments in foreign currency and in what cases?
7. What rule was applied in the case of Miliangos v. George Frank and what other matters
was it extended to cover?
8. What law determines the method of enforcing a judgment?
9. What law governs the priority of claims in a maritime lien?
10. What legal principle was the court’s decision in the case of The Halcyon Isle based on?
Exercise 3. On the basis of your notes from Exercises 1 and 2 write a plan of the text.
Exercise 4. Write a summary of the text using the relevant information from the exercises above
as a reference point for organizing your writing. Make sure that your summary is logically
divided into three parts: 1) a short introduction into the main theme of the text, that is, the
general rule of English law for the grant of remedies, 2) a detailed discussion of the choice of
law rules invoked by the courts to govern the award of damages, the method of enforcing
judgments, the currency of judgments and priority of claims in a maritime lien, 3) a conclusion.
UNIT 5
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
Part I
Legal Terms
1. adjudication of grievances
рассмотрение жалоб судом; вынесение судебного
решения по жалобам
2. res judicata
лат. рес юдиката, принцип недопустимости
повторного рассмотрения однажды решенного дела
3. estoppel (preclusion)
преюдиция; лишение права возражения по
обстоятельству, установленному ранее по другому
делу
4. merger
объединение в одно дело, производство или
решение
5. bar
правовое препятствие или правовой запрет
6. prima facie ['praimə 'feiʃi]
validity
юридическая сила в порядке правовой презумпции
(т.е. при отсутствии доказательств в пользу
противного)
7. comity
вежливость; признание судом иностранных законов
и судебных решений в порядке вежливости
8. extrinsic fraud
внешний обман или мошенничество (т.е.
мошенничество, допущенное в иностранном суде)
9. intrinsic fraud
внутренний обман или мошенничество (т.е.
мошенничество, допущенное в суде,
рассматривающем дело)
10. full faith and credit clause
пункт конституции США о взаимном доверии и
признании судебных решений и публичных актов
других штатов
11. due process (of law)
надлежащая правовая процедура – пункт
конституции США, оговаривающий законность
судебного разбирательства
12. in privity (with)
в соучастии (с кем-либо); имеющий общий интерес
(с кем-либо)
13. claim preclusion (estoppel)
преюдиция; недопустимость возражения в
syn.: cause of action
estoppels
отношении основания иска
14. issue preclusion (estoppel)
преюдиция; недопустимость возражений по уже
решенному вопросу
15. on the merits
по существу (т.е. касательно права стороны, а не
процессуального вопроса)
16. reciprocal recognition
взаимное признание
17. executor judgment
решение суда о назначении душеприказчика
наследственного имущества
18. equity determination
решение суда об исполнении в натуре
19. penal statute
уголовный закон
20. release of judgment
освобождение от исполнения судебного решения
21. penality
наказуемость (особенно применительно к
уголовному правонарушению)
Reading Comprehension
Exercise 1. Judging by the title of Text 1, what information would you expect to find in it?
Exercise 2. Skim Text 1 and read out the subheadings.
1.
2.
3.
Would you structure the information in the same way if you were covering the topic
“Recognition and enforcement of foreign judgments”? If not, how would you break the
topic down?
What else would you include?
What country’s conflict of laws is the bulk of the text devoted to?
Exercise 3. Look through the first part of the text (Comity and Recognition) and answer these
questions:
1.
2.
3.
4.
5.
What is comity?
What is full faith and credit?
What are the differences between them?
Is there any duty imposed on the states of the U.S. to recognize in personam judgments?
Is recognition extended to in rem and quasi in rem judgments?
Exercise 4. Explain in your own words what is meant by defenses to the enforcement of foreign
judgments. Do you happen to know any problems associated with making use of such defenses?
If so, what are they?
Text 1. Foreign Judgments
(Abridged from Conflict of Laws by Th.C.Fischer and S.Cox)
A uniform principle of jurisprudence is that there must be an end to litigation. Equally
important is the notion that whenever there is a full and fair adjudication of grievances, parties
should be bound thereby. In legal terms, these principles are embodied in the concepts of res
judicata, estoppel, and merger and bar. However, the principles are only as compelling as the
willingness or ability of a judicial system to enforce them. In the American context one should
distinguish between the enforcement of foreign country judgments and judgments of courts
governed by the Constitution of the United States.
Comity. In the absence of a treaty, statute or presidential order, foreign country
judgments are governed by the loose principle of comity. Black’s Law Dictionary describes
comity as “a willingness to grant a privilege, not as a matter of right, but out of deference and
good will.” That is, if there is no duty, the court asked to recognize the foreign judgment may
thoroughly examine the process accorded in the first forum before deciding of whether or not to
do so.
As a general rule, foreign judgments are given prima facie validity and treated as a matter
of fact (not law). Hence, the enforcing court may inquire into not only: 1) proper jurisdiction (in
the international, not constitutional, sense); 2) the adequacy of process (fundamental fairness); 3)
extrinsic fraud; and 4) penality, but it may also examine such matters as: 1) the existence of
reciprocity; 2) intrinsic fraud; 3) the foreign forum’s public policy in relation to the enforcing
state’s; and 4) convenience and fairness to the parties.
When comity is granted (that is, when one country recognizes as valid the judgment of
another country’s court), then recognition is usually bilateral – each state will reciprocate by
validating the judgments of the other. Modern practice tends to recognize fairly-achieved foreign
judgments, notwithstanding reciprocity (after all, reciprocity must begin somewhere), and some
states require recognition by statute.
Recognition of sister state judgments. The duty of recognition imposed on jurisdictions
governed by the U.S. Constitution, that is, the fifty states, the District of Columbia, Puerto Rico,
the U.S. territories, and the federal court system is quite different from comity. Article IV §1 of
the Constitution contains the “full faith and credit” clause, which literally commands that “each
State [recognize] the public Acts, Records, and judicial Proceedings of every other State.” The
clause precludes inquiry into the appropriateness of another state’s judicial proceedings, so long
as its court had good jurisdiction and accorded due process. To require less would perpetuate
litigation and allow each state to impose its policy on proceedings fully litigated in another state.
In the federal system, interstate recognition of money or property judgments can be achieved via
a registration statute (28 U.S.C. §1963).
In general, interstate recognition is accorded only to in personam judgments, whereas
judgments in rem and quasi in rem are generally said not to have extraterritorial effect. As
regards in personam suits, this is because the parties have subjected themselves or submitted to
the jurisdiction of a court and had their grievance resolved. It should be treated as res judicata in
any other jurisdiction in which recognition is sought. Since both parties had a full and fair
opportunity to present their side of the case in the first forum, no purpose is served by reviewing
that decision simply because the parties have entered another state. Issues fully litigated in the
first forum may not be re-litigated in a second forum by the parties or persons in privity with
them due to the principle of estoppel. The two forms of preclusion have recently been called
“claim preclusion” and “issue preclusion,” respectively.
If the plaintiff is victorious in the first forum, his/her claim (or cause of action) is merged
into the court’s judgment, so that what is sought to be enforced in a second forum is the
judgment of the first forum and not the original claim or cause of action. If the defendant is
victorious, the first forum’s decision acts as a bar to the plaintiff’s initiating another suit in a
second forum on the original claim. In other words, when a plaintiff has a claim or cause of
action (a “right”) and seeks to recover on that right in a court proceeding, generally all facets of
the legal entitlement are considered to be before the court chosen by the plaintiff and will be
merged into its judgment (the “remedy”). If the judgment is for the defendant, the plaintiff is
barred from further litigation.
Some method is needed to give the plaintiff’s judgment obtained in Forum 1 legal status
in Forum 2’s judicial system. That is achieved by a second procedure in Forum 2, in which
recognition of the Forum 1 judgment is sought.
In general terms, then, a sister state judgment will be accorded full faith and credit by
another state’s court if that judgment is: 1) made by a court with good jurisdiction; 2) on the
merits (not a judgment on procedural point); and 3) final (not modifiable in Forum 1). The
Constitution’s full faith and credit clause speaks literally only to state-to-state recognition, but
federal court recognition of state decrees was achieved by statute and state recognition of federal
judgments by judicial decree.
Recognition of arbitration awards. As they are not judicial proceedings under the full
faith and credit clause, arbitration awards have sometimes been given lower status for
recognition and enforcement purposes. However, federal legislation does provide for the
enforcement of arbitration awards in admiralty, interstate, and international matters, and a U.N.
Convention to which the United States is signatory provides for the reciprocal recognition of
arbitration awards of other signatory nations. Thus some arbitration awards are given
enforcement status by federal statute and treaty. Others are subject to state conflict rules, but they
are, in any event, res judicata (if bilateral and properly achieved).
Defenses to the enforcement of Forum 1 judgments. Not every judgment is entitled to
extraterritorial recognition and enforcement.
As stated earlier, if the judgment of Forum 1 was rendered without proper jurisdiction, or
one or both parties have been denied due process of law, then Forum 2 has no duty to recognize
it. Hence, Forum 2 may (indeed, should) inquire into Forum 1’s jurisdiction. However, the
enquiry ends there. Forum 2 should not weigh the merits of the Forum 1 decision.
Even if Forum 1 erred in its judgment, so long as it had good jurisdiction of the parties
and the case, and accorded due process, it is entitled to full faith and credit from a subsequent
tribunal. It is not for a later tribunal to correct the error, if any. That should be left to the vertical
appeals process to higher courts in Forum 1.
Some Forum 1 judgments are not exportable, i.e., there is no duty to give them full faith
and credit. Examples include rem judgments, executor judgments and equity determinations that
require the defendant to perform or not to perform and act. Usually money judgments are
enforceable across state boundaries.
As a rule, it is inappropriate for Forum 2 to inquire into the nature of the cause of action
underlying the Forum 1 judgment. Such an inquiry is proper, however, if the prior judgment is
based on a penal statute. The rule in Huntington v. Attrill stipulates that “no jurisdiction has the
duty to enforce the penal laws or judgments of a sister jurisdiction.” In respect of sister states’
tax laws and judgments, the U.S. Supreme Court has determined that though such judgments fit
the criterion for penal judgments, their enforcement is subject to full faith and credit.
Another defense to the recognition of sister state claims or judgments is that the forum
lacks a court competent to hear them, since not every legislature grants its courts authority to
hear every cause of action. Hence, there may be no competent court to hear the non-local cause
of action.
Matters subsequent to the Forum 1 judgment. It should be evident from the above,
that, if Forum 1 renders a judgment for the plaintiff and he takes that judgment to Forum 2 for
recognition, the second forum’s proceeding is separate both as a matter of procedure and
substance from the first forum’s. If the Forum 1 determination is later altered (for example, by a
release or satisfaction of the judgment), there is no way for Forum 2 to become aware of this fact
until and unless either the plaintiff or the defendant informs Forum 2. Therefore, any matter
subsequent to the Forum 1 judgment that would alter or expunge its force or terms, should be
brought to the attention of Forum 2. Then Forum 2 can modify its judgment, as is required by
full faith and credit. If and when Forum 2 alters the judgment in a way agreeable with Forum 1,
this should be binding, as a matter of full faith and credit, even on Forum 1.
Vocabulary Work
Exercise 5. Read the text and suggest Russian equivalents of the following word partnerships.
Mind that in most cases there is no word-for-word correspondence.
to grant a privilege; to inquire into proper jurisdiction; notwithstanding reciprocity; to accord due
process to the parties; to impose one’s policy on proceedings; to accord interstate recognition;
full and fair opportunity; facets of the legal entitlement; to be barred from further litigation; to
provide for the reciprocal recognition of arbitration awards; the cause of action underlying the
judgment; to fit the criterion of penal judgments; release or satisfaction of a judgment; to
expunge the force or terms of a judgment; to perpetuate litigation
Exercise 6. Find English equivalents of the following word partnerships in the text.
из уважения и по доброй воле; юридическая сила (законность) в порядке правовой
презумпции; отвечать взаимностью, придавая юридическую силу судебным решениям; не
допускать изучения судебного производства на предмет его законности; подчиниться
юрисдикции другого штата; предъявить свои аргументы по делу; пересмотр решения
является бессмысленным; пытаться обеспечить правовой санкцией во втором форуме;
пытаться получить возмещение на основании этого права; вынести решение в пользу
ответчика; решение по существу; подчиняться коллизионным нормам штатов; допустить
ошибку при вынесении судебного решения; изменить постановление суда
Exercise 7. Render the sentences into English preceding them with the suggested speech
connectors.
As a gener
is the fact that
1. …………. иностранные решения признаются юридически действительными в силу
презумпции.
2. …………. между штатами принято признавать только решения по
обязательственным искам.
3. …………. , если обеим сторонам было отказано в надлежащей правовой процедуре,
судебный форум 2 не обязан признавать судебное решение, вынесенное форумом
1.
4. …………. судебный форум 2 не должен изучать основание иска, лежащего в
основе решения судебного форума 1.
5. ………….. может не оказаться суда, имеющего надлежащую юрисдикцию.
6. ………….. , что если решение вынесено в пользу истца, оно сливается со средством
судебной защиты, содержащимся в этом решении.
7. …………… , что если решение вынесено в пользу ответчика, истцу запрещается
дальнейшая тяжба.
Exercise 8. Fill in the gaps in the following sentences with A, B, C or D.
1.
This information _______ the validity of the judgment.
A accorded
2.
B presented
C precluded
D accorded
B grant
C accord
D enforce
The convention _______ the reciprocal recognition of arbitral awards.
A inquires into
5.
D enforced
The states may not _______ their policy on fully litigated proceedings in another state.
A impose
4.
C precluded
Interstate recognition is not _______ to executor judgments.
A subjected
3.
B expunged
B provides for
C accords
D weighs
The plaintiff _______ to recover on his right.
A accords
Analytical Reading
B precludes
C fits
D seeks
Exercise 9. Express each part of the text marked by a subheading in no more than one or two
sentences that would reflect the essence of the passage.
Exercise 10. Read the part entitled Defenses… and list the defenses available to the enforcement
of Forum 1 judgments. Then comment on how each of these defenses works.
Exercise 11. Answer the questions on the text.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
What two major principles of recognition and enforcement are embodied in the concepts
of res judicata, estoppel, merger and bar?
What is the meaning of comity? Does comity impose the obligation to recognize foreign
judgments?
What is meant by according foreign judgments prima facie validity and treating them as a
matter of fact?
What matters may the enforcing court inquire into?
What does Article 4 §1 of the U.S. Constitution command vis-à-vis recognition of foreign
judgments?
What does the full faith and credit clause preclude and why?
What kind of judgments are accorded interstate recognition? What is the rationale?
What is the situation like in respect of in rem and quasi in rem judgments?
Why cannot the issues fully litigated in the first forum be re-litigated?
What two forms of preclusion are mentioned in the text?
Explain the concepts of merger and bar.
In what way is the plaintiff’s judgment accorded legal status in Forum 2?
What criteria must be met for a sister state judgment to be accorded full faith and credit
by another state’s court?
What kind of recognition may be accorded to arbitration awards? In what matters?
In what situations is Forum 2 not obliged to recognize the Forum 1 judgments?
Can an error made by Forum 1 serve as a defense?
What judgments are referred to as not exportable?
Does full faith and credit extend to penal judgments?
Does the lack of a competent court constitute a defense?
What action must be taken by the plaintiff in case the Forum 1 determination is later
altered?
Summarizing
Exercise 12. Write a plan and summarize the text using these speech links.
1. To introduce the theme of the text:
The text is concerned (with); deals (with); is devoted to the problem (of); concerns itself
(with); focuses/concentrates on the problem (of)
2. To list the information contained in the text:
The information covered in the text includes…; The text highlights the following issues:
…; The following information is presented in the text: …; Covering the general theme of
…, the text can be broken down into the following information items: …
3. To dwell on the essence of each of the information items and to structure your
summary:
First(ly), …; Second(ly), …; Third(ly)/The third point made in the text is …;
Next/Furthermore/Then, …; Finally, …; In conclusion it should be pointed out that …;
To conclude, …
4. Depending on the nature and contents of the text you may or may not have to or
want to make an inference from it that would contain its main idea (in other words,
the explanation why the text was written in the first place). If you do, use the speech
clichés suggested at the end of the previous item:
To conclude, In conclusion, etc.
Part II
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS (2)
Legal Terms
1.
raise a defence
выдвинуть защиту, в качестве защиты
syn.: plead a defence
2.
re-argue on the merits
пересмотреть дело по существу
3.
adduce evidence
приводить доказательства
4.
exceed jurisdiction
превышать границы полномочий
5.
void and destitute of effect
лишенный юридической силы
6.
offend (against)
нарушать
7.
collateral fraud
косвенное мошенничество
8.
act on a bribe
выносить решение на основе подкупа (полученной
взятки)
9.
vitiate
лишать законной (юридической) силы
10. judgment debtor
лицо, против которого вынесено судебное решение
11. overrule
отменить (решение суда)
syn.: set aside
12. raise a plea of fraud
выдвинуть защиту со ссылкой на мошенничество
13. prima facie evidence
доказательство, достаточное при отсутствии
возражений (другой стороны), презюмируемое
доказательство
14. strike out
вычеркнуть (из протокола судебного
разбирательства)
15. nemo judex in causa sua
лат. «никто не должен судить для получения
собственной выгоды»
16. audi alteram partem
лат. «выслушай другую сторону»
17. biased evidence
доказательства, оказывающие давление на исход
дела
18. nullity decree
судебное решение о ничтожности (брака)
29. maintenance order
судебное решение о присуждении алиментов
20. delinquency
правонарушение; неисполнение судом своих
обязанностей
21. res judicata
лат. рес юдиката, принцип недопустимости
повторного рассмотрения однажды решенного дела
Other Vocabulary items
1. purport
иметь целью
2. induce
побуждать, склонять, заставлять
3. be in issue
рассматриваться
4. reap the fruit (of)
сорвать плоды
5. evade
обходить стороной, уклоняться (от решения)
6. reliance (on)
использование в качестве основы, опоры
7. avail oneself
воспользоваться
8. amount to
равняться
9. dubious
сомнительный
10. be untainted (by)
быть незапятнанным
11. rest (upon)
основываться
12. irreconcilable (with)
непримиримый
Text 2.
What are and what are not defences
to the enforcement of foreign judgments in Great Britain
(Abridged from Conflict of Laws by J.G.Collier.)
What are not defences to enforcement. Once it is established that the foreign court had
jurisdiction, the claimant will be able to enforce the judgment in England unless the defendant
can raise a defence. In general he is not permitted to reopen the case and cause it to be re-argued
on the merits, so as to show that the decision of the foreign court was wrong. Thus, very few
defences are available and all, to a greater or lesser extent, reflect public policy. Before
discussing these, it is convenient to say what is not a defence.
An error of fact or law on the part of the foreign court is not a defence, even though that
court applied the wrong law or, though it applied the correct law, it got it wrong. This is
exemplified by Godard v. Gray, where a French court made an obvious error as to the rules of
English law it had purported to apply. The defendant cannot adduce evidence which could have
been produced to the foreign court. On the other hand, it seems that he can adduce fresh evidence
which was not available at the time of the trial if it can be shown that had this evidence been
before it, that court would have arrived at a different result. Nor can he raise any defence which
could have been pleaded before the foreign court.
Moreover, it was held in Vanquelin v. Bouard that it was no defence that, although the
courts of France had jurisdiction over the defendant, the particular French court, which gave the
judgment, lacked the competence to do so under French law. The reason is that the foreign court
(or a court of appeal from it), not an English court, is the proper tribunal to decide whether it has
exceeded its jurisdiction. This is a question of foreign, not English law. This is certainly true if
the judgment is by the foreign law valid until set aside for excess of jurisdiction. But there is
some authority for the further proposition that where, under the foreign law, the judgment is void
and totally destitute of effect, it will not be recognised or enforced here.
So, 'if a judgment is pronounced by a foreign court over persons within its jurisdiction
and in a matter with which it is competent to deal, English courts never investigate the propriety
of the proceedings . . . unless they offend against English views of substantial justice'
(Pemberton v. Hughes [1899]).
Defences to enforcement. Although all the available defences are, perhaps, based on
public policy, it is convenient to deal with them separately.
Fraud. The first is fraud on the part of the foreign court or of the claimant. If the court
itself acted fraudulently, as where it acted on a bribe, the judgment obviously will not be
enforced. Fraud on the part of the claimant may take one of two forms. Either it is 'collateral
fraud' which vitiates the jurisdiction of the foreign court by inducing it to assume jurisdiction
which otherwise it would not have done. There is no doubt that this will cause the foreign
judgment to be refused recognition or enforcement here.
Or, it may be that the fraud vitiates the foreign judgment on the merits of the case, where,
for example, the court is misled into giving judgment in the claimant's favour, which it otherwise
would not have done. But the English courts go further than this, for they allow the case to be
reopened on the merits, so it was held in Abouloff v. Oppenheimer, contrary to normal principle.
Thus they may enter into an investigation of the facts which were in issue before and
investigated earlier by the foreign court. The faint jurisdiction for this is that, since the foreign
court could not have known of the facts, which were fraudulently concealed from it, it could not
have ruled on them. Writers regard this as no real justification, though it seems not unfair of the
English court to refuse to allow the fraudulent person to reap the fruit of his fraud.
Less justifiable is Syal v. Heyward where it was held that the judgment debtor could raise
the defence of fraud even though he knew the facts on which it was based at the time of the
proceedings abroad, but had not pleaded them in those proceedings.
In the most recent decision on the matter, Owens Bank Ltd v. Bracco, the House of Lords
declined to overrule Abouloff v. Oppenheimer. A court in St Vincent had given judgment for the
claimant after refusing to allow the defendants to raise a plea of fraud after the claimant's case
had closed. The House of Lords held that the defendants could raise the plea in enforcement
proceedings in England. The case concerned registration under the Administration of Justice Act
1920. Section 9 (2) (d) allows this to be set aside if the judgment 'was obtained by fraud'. The
House held that the phrase must be given the meaning it had at common law in 1920 and that it
still has that meaning at common law.
One unfortunate effect of this decision is that it creates a distinction between judgments
of courts in countries, which are not parties to the Brussels and Lugano Conventions, and of
those, which are. As will be seen, the English courts have applied a very narrow view of fraud in
the context of convention judgments and thereby almost entirely eliminated it as a defence to
recognition and enforcement of such judgments.
In a more recent decision, Owens Bank Ltd v. Etoile Commerciale Ltd, the Privy Council
showed little enthusiasm for Owens Bank Ltd v. Bracco. It evaded that decision by holding that
the defendant's attempt to raise the defence of fraud, of which there was no prima facie evidence,
should be struck out in the interests of justice as an abuse of the process of the court, thus
providing a possible means of escape.
Natural justice. If the foreign court acted in breach of natural justice, the judgment may
not be enforced. Thus, if it acts in effect as judge in its own cause, it offends against the maxim
nemo judex in causa sua, and if it refuses to allow the defendant to plead his case, it offends
against the maxim audi alteram partem.
However, there is no reported case in which a defendant has successfully pleaded the
latter in resisting enforcement. Thus, the court's reliance on its own rules in refusing to allow a
party to give evidence on his own behalf or the acceptance by the foreign court of biased
evidence do not vitiate the proceedings, provided the defendant's case has actually been heard. In
Jeannot v. Fuerst lack of notice of the proceedings was not a denial of natural justice. But in that
case the judgment debtor had agreed to submit to the jurisdiction and was taken to know of the
French court's rules as to service. Moreover he had had the right, of which he had not availed
himself, to come in and defend the proceedings before or after execution of the judgment. Lack
of notice due to the claimant's having deceived the foreign court into hearing the case when it
otherwise would not have done so may amount to a fraud on the court.
In Adams v. Cape Industries plc the Court of Appeal said that a judgment could not be
enforced if the trial was conducted in a manner, which was not contrary to natural justice in the
sense just explained but amounted to a denial of substantive justice. The foreign court had
adopted a method of assessing damages, which was irregular by its own rules and of which the
defendants had not been told. This is a little dubious. The irregularity in question was a
misapplication of the court's own laws; an error of law by the foreign court is not a defence to
enforcement. However, the Court of Appeal applied the decision in the later case, Masters v.
Leaver.
Public policy. With respect to other situations involving English public policy, there
appears to be only one case, rather than two, which concerned recognition of nullity decrees,
where a foreign judgment has not been recognised or enforced. In Armitage v. Nanchen a man
against whom a Swiss court had made a maintenance order sought to have its registration set
aside, arguing that to enforce it would be contrary to public policy, because the Swiss court had
followed procedures different from those of English courts, and because it had relied more
heavily on certain evidence than an English court would have done. But in rejecting these
arguments the court said that if the foreign court had followed its own procedure and the
judgment was untainted by fraud or other delinquency, an English court would only reject the
judgment on the ground of public policy if it was so offensive in their eyes as to be a denial of
natural justice.
This view of the matter seems both sensible and correct and puts in doubt Re Macartney.
A man domiciled in England left his fiancée in Malta, where she gave birth to his daughter. The
Maltese court ordered him to pay maintenance for his daughter, and that after his death it should
be paid from his estate, during her entire life.
Astbury J refused to enforce this order against the estate. One ground for his decision was
that the cause of action was unknown to English law, a reason which cannot now be supported.
The other was that it was contrary to public policy to enforce an award of perpetual maintenance
in favour of an illegitimate child against his or her father and his estate. This seems to be
stretching public policy rather far. The decision appears to rest upon a misreading by Astbury J
of the judgment of Fry J in Rousillon v. Rousillon but it has been, possibly, followed in a rather
unsatisfactory judgment of the Court of Appeal in Israel Discount Bank of New York v.
Hadjipateras.
In Vervaeke v. Smith, the House of Lords held that if a foreign judgment reflects the
foreign notion of public policy and a previous English judgment with which the foreign
judgment conflicts reflects English ideas of public policy, English public policy will prevail.
Conflicting judgments: res judicata. In Vervaeke, the House of Lords held that where,
as in that case, a foreign judgment is irreconcilable with a previous English judgment, the
English judgment is res judicata and the foreign judgment will not be recognised or enforced.
The Privy Council in Showlag v. Mansour applied this to the situation where two irreconcilable
foreign judgments were in issue.
In 1990 an English court held that M had stolen some of S's money. In 1991 an Egyptian
court held that S had given M the money, so he had not stolen it. S's legal representatives
brought an action in Jersey to recover some of the money, which had found its way there. M
relied by way of defence on the second Egyptian judgment, as giving rise to res judicata.
It was held that the English judgment itself constituted res judicata and being first in time
must be recognised and given effect by the Jersey court.
Summarising
Exercise 1. Look through the text to determine what major information items it is divided into.
Exercise 2. Focus on the first part of the text and answer these questions.
1.
2.
3.
4.
5.
Why are there very few defences to the enforcement of a foreign judgment in England?
Why does the author start with discussing what are not defences to enforcement?
What do the few available defences usually reflect?
What two circumstances can never serve as defences?
In what way can an English court deal with an error made by the rendering court (the first
court)?
6.
How is the question of a foreign court (the first forum) that has exceeded its jurisdiction
treated by English law?
Exercise 3. Summarise the first part along the following lines:
1.
Write down what this part is generally devoted to, using these clichés:
First(ly), the text is devoted to stating…
The text starts with discussing…
To begin with, the author dwells on the question of…
2.
3.
Write down the answers to the questions in Exercise 2 in one sentence each.
Consider the speech links used in part 1 and decide which of them can be used to
combine the 6 sentences in a coherent text of your summary. You may have to use other
speech clichés as well.
Once it is established that…
In general,…
Thus…
Before discussing…
Even though (though, although)…
On the other hand,…
Moreover,…
The reason is that…
This is certainly true if…
So,…
Exercise 4. Look through the second part of the text to say how many and what defences to the
enforcement of foreign judgments do exist under English law.
Exercise 5. Concentrate on the part devoted to fraud and answer these questions.
Fraud
1.
2.
3.
What is the first type of fraud that can serve as a defence?
What two forms can fraud on the part of the claimant take?
What rationale employed by English courts enables them to allow re-opening a case on
the merits?
Exercise 6. Write down the answers to the questions in Exercise 5 in one sentence each.
Consider the clichés below and decide which of them to use for combining your answers into a
summary. Remember that a summary must omit the details and examples and concentrate on
major information points.
Second(ly), the text contains the information about…
Second, … are dealt with in the text.
Second (Next), the text concerns itself with the following: …
Dwelling on … , the first type of … to be pointed out is …
As to (As regards, In respect of, Concerning) …, the first type of … that can serve as a
defence is …
It should be mentioned (pointed out, indicated) that …
Another thing with respect to … is that …
It is worth mentioning (highlighting) that…
Mention should also be given to the fact that …
Exercise 7. Focus on the parts describing natural justice and public policy as defences, answer
the questions below and follow the procedure suggested in Exercise 6. (You will have to change
“Secondly” to “Third(ly),” “Fouth(ly),” “Next” or “Further.”)
Natural Justice
1.
2.
What maxims are offended against if a foreign court acts in breach of natural justice?
Is there an obligation conferred upon an English court to enforce such a judgment?
Public Policy
1.
What sentence explains the principle of rejecting the judgment on the ground of public
policy?
Exercise 8. Concentrate on the last part of the text, Conflicting Judgments, answer the
questions, and write a summary using the clichés.
1.
2.
What happens if a foreign judgment is irreconcilable with a previous English Judgment?
Will such a judgment be recognized and enforced in England?
Exercise 9. Read the parts of your summary to check the consistency of using the speech links to
avoid repetition or overuse and to achieve logical diversity.
UNIT 6
ARBITRATION
Part I
Legal Terms
1.
arbitration award
арбитражное решение
syn: arbitral award
2.
settlement
урегулирование
3.
summary procedure
упрощённое (суммарное) производство
4.
originating summons
исковая форма для установительных исков
5.
made ex parte
поданный заочно, в отсутствие другой стороны
6.
leave of the court
разрешение суда
7.
action on the judgment
подача иска по данному судебному решению
8.
validity of the agreement
юридическая сила договора
9.
effect of the agreement
действие договора
10. surrounding circumstances
сопутствующие обстоятельства
11. lex arbitri
лат. закон места арбитража (право,
регулирующее арбитражное производство)
12. finality of the award
окончательный или заключительный характер
арбитражного решения
13. breach of natural justice
нарушение естественной справедливости
14. arbitration agreement
арбитражное соглашение
15. Order-in-Council
«Королевский приказ в совете», «Указ в
совете»,
правительственный
декрет
(в
Великобритании)
16. submission to arbitration
оговорка о разрешении споров в арбитраже
17. at the seat of the
arbitration
в пределах территориальной подсудности
арбитражного суда
18. discretion
усмотрение суда
discretionary power
дискреционная власть, дискреционные
полномочия, дискреционные правомочия
19. injunction
судебный запрет
20. arbitration clause
арбитражная оговорка, условие о передаче в
арбитраж споров, возникающих из договора
Reading Comprehension
Exercise 1. Judging by the theme of the unit, what information would you expect to find in it?
Exercise 2. Skim Text 1 and read out the subheadings.
1. Would you structure the information in the same way if you were covering the topic
“Arbitration awards”? If not, how would you break the topic down?
2. What else would you include?
3. What can you recollect about summary proceedings?
Exercise 3. Look through the first three paragraphs of the text and answer these questions:
1.
2.
3.
What is the difference between a judgment and an award?
What is an English arbitration award?
What is a foreign arbitration award?
Exercise 4. What is the peculiarity of the Russian arbitrazh courts? What do you already know
about arbitration in common law jurisdictions?
Text 1. Arbitration awards
(Abridged from Conflict of Laws by J. G. Collier)
An arbitration award usually arises out of a contract to submit a dispute to settlement by
arbitration. Such an award has not the same effect in English law as a judgment, and if it requires
enforcement the assistance of a court is needed. An English arbitration award (i.e. one made in
England, whoever is the arbitrator) may be enforced by an action in the courts, or by summary
procedure under the Arbitration Act 1996, section 66, by an originating summons made ex parte
asking for leave of the court.
A foreign arbitration award (i.e. any award made in a foreign country) can be enforced in
England in several different ways: (a) at common law, by securing an English judgment; (b) if
the award is within the Geneva Convention (1927) and the Protocol on Arbitration Clauses
(1923) or is within the New York Convention (1958), either by action at common law or under
the 1996 Act, section 66; (c) even if it is not within these statutory provisions, under section 66;
(d) if it has been made enforceable by a foreign judgment, by an action on the judgment; (e) if it
was made in a country to which the Administration of Justice Act 1920, Part II, or the Foreign
Judgments (Reciprocal Enforcement) Act 1933 extends, as if it were a judgment rendered by a
court in that country; (f) if it was made in another part of the United Kingdom and enforceable
there as a judgment, it is enforceable by registration in England.
There are three conditions for enforcement at common law: (i) the parties must have
submitted to arbitration by an agreement which is valid by its governing law, (ii) the award must
be valid by the law which governs the arbitration proceedings and (iii) it must be final.
The agreement to arbitrate. The arbitrator's jurisdiction is derived from the agreement.
Thus the validity, interpretation and effect of the agreement is governed, as with any other
contract, by its applicable law. Whether the particular dispute is within the agreement is
determined by this law.
The applicable law is also determined in the same way as is that of any contract. Suffice
it to say that if the parties to the agreement state what law is to govern it, that will generally be
conclusive: if they do not, it will be inferred by the court from the contract's terms and
surrounding circumstances, failing which it will be governed by the system of law with which it
has its closest and most real connection. A selection of a particular country as the place of
arbitration will, in the absence of an express choice of law to the contrary, almost certainly give
rise to the inference that the country's law governs it, though this is not necessarily so.
The law of the arbitration proceedings. This, usually called the lex arbitri, governs such
matters as the procedure of the arbitration, and whether the arbitrator can be compelled to state a
case for the opinion of the court, as well as whether the award is final. It could be a different law
from the proper law of the contract. In the absence of an expressly chosen law to govern the
proceedings, they will be governed by the law of the country where they are to take place.
The finality of the award. This requirement means that the award must be final under the
foreign law, but this is directed to determining whether it is final in the English sense. If, under
the law governing the proceedings, they cannot be reopened before the same arbitrator, it is final
for this purpose. The question is, whether the award disposes of all the points in dispute. If it is
final in this sense, it can be enforced here, even though it could not be enforced in the foreign
country.
An award which is otherwise enforceable may, nevertheless, not be enforced if one of
several defences can be raised. The available defences are not as clear as are those available in
respect of foreign judgments, but they cannot be very different. Thus (i) the arbitrators' lack of
jurisdiction, (ii) fraud, (iii) public policy, (iv) breach of natural justice, are all, presumably,
defences.
Arbitration Act 1950, Part II. This deals with awards made in pursuance of an arbitration
agreement other than one governed by English law between persons who are subject to the
jurisdiction of different countries which are declared by Order-in-Council to be parties to the
Geneva Convention, 1927. 'Subject to the jurisdiction' means that the parties must reside in, or
carry on business in, two states that are parties to that Convention and that the contract
containing the submission to arbitration must have resulted from business conducted therein.
Further, the award must have been made in a territory specified by Order-in-Council as a state
party to the Convention. The conditions for enforcement are similar to common law, and
enforcement is, again, either by action or under section 66. The defences are similar to those at
common law.
Arbitration Act 1996, Part III. This legislation, which is designed to replace the
Arbitration Act 1950, Part II, was originally enacted in the Arbitration Act 1975 which it
replaces in identical terms. It enabled the United Kingdom to become a party to the New York
Convention on the Recognition of Foreign Arbitral Awards of 1958 which was intended to
replace the Geneva Convention. The New York Convention and the 1996 Act, Part III (sections
100 to 104) create a simpler scheme.
A 'Convention' award is one made in pursuance of an arbitration agreement in the
territory of a state, other than the United Kingdom, which is a party to the Convention. An award
is to be treated as 'made' at the seat of the arbitration, regardless of where it was signed,
despatched or delivered to any of the parties. An award may be enforced by way of an action at
common law or, under section 66 of the 1996 Act, by summary procedure. An award is binding
between the parties for all purposes. The arbitration agreement must be in writing and it is an
implicit requirement that the award is in writing.
By section 103 of the Act the court has a discretion to refuse enforcement in eight cases
only: (a) if a party to the arbitration agreement was under an incapacity by his personal law; (b)
if the arbitration agreement was invalid under the law to which the parties submitted it (or, if
none, the law of the place where the award was made); (c) if the defendant was not given proper
notice of the appointment of the arbitrator or of the proceedings or was otherwise unable to
present his case; (d) if the award was outside the scope of the agreement; (e) if the composition
of the tribunal or the procedure was not in accordance with the agreement, or if there was no
agreement as to these matters by the law of the country where the arbitration took place; (f) if the
award is not yet binding or has been set aside or suspended by a competent authority of the
country in which, or under the law of which, it was made. These objections must be made by the
party who is resisting enforcement, but in two cases either a party may object or the court of its
own motion may refuse enforcement: if (g) the award is in respect of a matter which is not
capable of settlement by arbitration; or if (h) enforcement would be contrary to public policy. An
award will be refused recognition on this ground if it is based on a contract which is illegal by
the law of England. Fraud is not a separate objection but there is no doubt that an award which
has been procured by fraud will be refused enforcement for reasons of public policy.
An English court has an inherent discretionary power to stay any action brought in breach
of an arbitration agreement. If submission to arbitration is contained in a written agreement the
Arbitration Act 1996, s. 9 provides that the court must stay an action brought in violation of it;
there is no discretion in the matter. But the court has a power to refuse a stay if satisfied that the
arbitration agreement is null and void, or inoperative or incapable of being performed.
The court may restrain by injunction the bringing of proceedings in a foreign court in
disregard of an arbitration clause.
Vocabulary Work
Exercise 5. Read the text and suggest Russian equivalents of the following word partnerships.
Mind that in most cases there is no word-for-word correspondence.
to submit a dispute to settlement by arbitration; the arbitrator’s jurisdiction is derived from; to be
inferred by the court; to compel to state a case for the opinion of the court; to dispose of all the
points in dispute; to make an award in pursuance of an arbitration agreement; to be outside the
scope of the agreement; to resist enforcement; to refuse a stay; to restrain by injunction the
bringing of proceedings
Exercise 6. Find English equivalents of the following word partnerships in the text.
в соответствии с положениями закона; действие Акта распространяется; достаточно
сказать; в отсутствие иного прямо выраженного выбора правовой нормы; пересмотреть
дело; возобновить судебное производство или рассмотрение дела в суде; заявить
возражение по иску (об обстоятельстве, освобождающем от ответственности); быть
подписанным, отправленным и врученным; приостановить рассмотрение дела,
производство по делу; быть лишенным законной силы
Exercise 7. Render the sentences into English preceding them with the suggested speech
connectors.
1. .......... арбитражное решение, которое возникает из соглашения о передаче дела в
арбитражный суд, в английском праве не имеет того же юридического значения,
что и судебное решение.
2. ……… если арбитражное решение необходимо привести в исполнение, то
требуется содействие суда.
3. ……… английское арбитражное решение может быть приведено в исполнение
посредством подачи иска в суд.
4. ……… существуют шесть установленных законом способов приведения их
(иностранных арбитражных решений) в исполнение на территории Англии.
5. ……… в соответствии с общим правом существуют три условия приведения
решения в исполнение.
6. ……… соглашение о передаче дела в арбитражный суд должно иметь силу в
соответствии с применимым правом.
7. ……… решение должно иметь силу в соответствии с правом, которое регулирует
арбитражный процесс.
8. ………. решение должно быть окончательным.
9. ……… английский суд обладает полномочиями приостановить производство по
любому иску, заявленному в нарушение арбитражного соглашения.
10. ……… суд обладает полномочиями отказать в приостановлении производства по
делу, если удостоверяется в том, что арбитражное соглашение не имеет законной
силы.
Exercise 8. Fill in the gaps in the following sentences with A, B, C or D.
1. The Brussels and Lugano Conventions are _______ the free movement of judgments.
A applied to
B concerned with
C referred to
D about
2. An award has to _______ a judgment to be enforceable under the Conventions.
A be modified into
B be transfigured C be changed into
into
D
be converted
into
3. The House of Lords _______ unanimously that Scots law governed the arbitration.
A held
B rendered
C settled
D delivered
C examines
D makes clear
4. The award _______ all the points in dispute.
A disposes of
B expresses
5. The contract was expressed to _______ by English law.
A be handled
B be governed
C be ruled
D be dealt with
Analytical Reading
Exercise 9. Divide the text into logical parts. Express each part of the text in no more than one or
two sentences that would reflect the essence of the passage.
Exercise 10. Read the part on three conditions for the enforcement of arbitral awards at common
law and render the essence of each of them in several sentences. Are they the same in the
Russian legislation?
Exercise 11. Answer the questions on the text.
1.
2.
3.
4.
5.
6.
7.
8.
How does the arbitration award arise?
Does an award have the same effect as a judgment in English law?
Name three ways of how an English arbitration award can be enforced.
In what six ways can a foreign arbitration award be enforced?
What are the conditions for enforcement at common law?
What legal issues are governed by the applicable law of the contract?
What happens if the parties to the agreement do not state what law is to govern it?
What details do you remember as regards the process of selecting the place of
arbitration?
9. What legal issues are governed by the law of the arbitration proceedings?
10. What law governs the proceedings in the absence of an expressly chosen law?
11. What does the third requirement regarding the finality of the award mean?
12. May the award which is otherwise enforceable not be enforced?
13. What are the defences to the enforcement of the award?
14. What awards does the Arbitration Act 1950, Part II deal with?
15. What does the expression ‘subject to the jurisdiction’ mean in this context?
16. What does the Arbitration Act 1996, Part III provide for?
17. What is a ‘Convention’ award?
18. When is a ‘Convention’ award to be treated as made?
19. Name two ways of how a “Convention’ award can be enforced.
20. In what six cases does the court have a discretion to refuse enforcement?
21. Name two cases when the court may refuse enforcement.
22. When does the court have powers to stay an action or refuse to stay an action?
Summarising
Exercise 12. Write a plan and summarize the text using these speech links.
1. To introduce the theme of the text:
The text analyses/considers; provides useful information regarding; is devoted to
the problem (of); tackles the problem of; focuses/concentrates on the problem (of)
2. To list the information contained in the text:
The information covered in the text includes…; The text highlights the following
issues: …; The following information is presented in the text: …; Covering the
general theme of …, the text can be broken down into the following information
items: …
3. To dwell on the essence of each of the information items and to structure
your summary:
First(ly), …; Second(ly), …; Third(ly)/The third point made in the text is …;
Next/Furthermore/Then, …; Finally, …; In conclusion it should be pointed out
that …; To conclude, …
4. Depending on the nature and contents of the text you may or may not have to
or want to make an inference from it that would contain its main idea (in
other words, the explanation why the text was written in the first place). If
you do, use the speech clichés suggested at the end of the previous item:
To conclude, In conclusion, etc.
ARBITRATION
Part II
Legal Terms
1.
tort insurance
страхование от совершения
гражданского правонарушения
2.
consensual arbitration
консенсуальный арбитраж (вытекающий
из арбитражного соглашения)
3.
invoke
требовать применения, применять
invoke a law-choosing process
требовать выбора права
4.
stipulate
обусловливать, оговаривать,
договариваться
5.
commitment
обязательство
honor the arbitration
commitment
обязательство рассмотрения спора в
арбитраже
выполнять обязательство о рассмотрении
спора в арбитраже
6.
render by default
вынести заочное решение
7.
duly notified party
должным образом уведомленная сторона
8.
application to stay
заявление о приостановлении
производства по делу
9.
maritime
морской
commitment to arbitrate
10. technically
зд. формально
11. signatory nation
государство-сигнатарий, страна,
подписавшая договор
12. arbitration panel
состав арбитров
13. convert an arbitration award into
a court judgment
преобразовать арбитражное решение в
судебное решение
14. preclusive effect
преюдиция
15. written in Internationalese
написанный стилем международных
договоров
Text 2. Consensual arbitrability
(Abridged from Conflicts in a Nutshell by D. D. Siegel and P.J.Borchers)
Arbitration as a means of dispute settlement, instead of the usual court litigation,
ordinarily comes about by contract. It has been made mandatory in certain instances, especially
in the areas of tort insurance and labor law, but these are special areas and it is only to the
ordinary contract-stipulated, or consensual, arbitration that attention turns here.
Most American states have pro-arbitration attitudes today, and some of the more
populous ones can even be described as enthusiastic about the arbitration process for what it
spares the court system. A few states are still set against arbitration. When a contract involving
states in each of those camps calls for arbitration, whose law governs it? The courts have had
mixed feelings about that. The better view is that the matter is not merely procedural, calling for
automatic reference to the attitudes of the forum, but substantive enough to invoke a lawchoosing process. The Restatement’s position is that the parties may stipulate to the governing
law in the agreement itself, which stipulation would presumably select the law of a proarbitration state, and that absent a stipulation the validity of the commitment to arbitrate should
be gauged by the law of the state with the most significant relationship to the transaction. Some
states hold the matter procedural, automatically applying forum law to the issue, or, if the forum
is anti-arbitration, reject the arbitration commitment as violative of forum policy. New York
adopted the latter posture before subsequent statutory changes made it a leading proponent
instead of an enemy to arbitration. The change of heart was complete, New York afterwards even
accepting agreements calling for arbitration in foreign nations and recognizing awards rendered
there by default when a duly notified party would not honor the arbitration commitment.
Since there are some states that are still uncongenial to arbitration, a lesson to an astute
lawyer seeking to compel arbitration in behalf of her client and having a choice of forums for the
application is not to choose such a state. Conversely, the course of the lawyer who would take
the initiative for a client opposed to arbitration is to choose just such a forum if she can, such as
with an application to stay or otherwise undo the arbitration, or with an ordinary court action
ignoring the arbitration commitment.
The issue of arbitrability will not always be governed by state law. If the transaction falls
into the maritime realm or involves interstate or foreign commerce, it is governed by the federal
arbitration act, which is distinct from the state acts. And here the issue is deemed substantive to
this extent: even if the issue of arbitrability arises in a state court, it must be resolved by
reference to the federal act if it involves a maritime or interstate commerce transaction.
Conversely, an arbitrability issue arising in a federal issue based (for example) on diversity of
citizenship and not involving a maritime or interstate commerce transaction must be resolved by
reference to the law of the forum state rather than federal act.
Involved and intertwined as these principles may be, they do not often present difficulty
for the reason that most states have liberal arbitration acts and the federal act is a liberal one, too.
Hence, more often than not when the federal act approves arbitration, so will the state act,
leaving little to choose between them on the fundamental question of whether the dispute is
arbitrable. (Many state court cases and even some federal cases applying state arbitration acts
can probably be shown to have done so inadvertently, for the reason that an interstate commerce
transaction was involved and the federal act was technically the applicable one.)
While the issue of whether a dispute is arbitrable is deemed substantive so that its
resolution must come from the appropriate act – the federal act for maritime and interstate
transactions, the state act for all others – no matter in which court the issue arises, the mechanics
of raising the issue are procedural and each forum follows its own act. Hence a state court, for
example, will entertain only the procedures of its own act to raise an arbitrability question,
although it will answer the question by referring to the federal act in an interstate commerce or
maritime case, while the federal court in any other kind of case will use the federal act and the
federal rules to raise the issue procedurally but will resolve the issue on the merits by applying
the appropriate state act.
The United States along with many other nations is a party to a treaty called the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Obligations to
arbitrate (as well as awards in arbitrations already held) falling under the treaty must be
recognized both in state and federal courts. The treaty applies only to commercial transactions
and governs principally when citizens of different signatory nations are involved.
The general rule is that an arbitration award is entitled to recognition like a judgment. If
the award is that of an arbitration panel duly constituted under the law of the place where it sits,
and the parties have submitted to arbitration voluntarily (or, today, if they have been submitted to
it by state law in one of the burgeoning areas of compulsory arbitration, such as certain labor
situations or some no-fault cases in tort), the resulting award, if recognized at home, must be
recognized elsewhere. Indeed, some states will voluntarily recognize arbitration awards rendered
in a foreign nation and therefore not even within the reach of the full faith and credit clause.
A state will often supply a procedure whereby an arbitration award rendered locally can
be converted into a regular court judgment, thereby being entitled to exploit the enforcement
devices applicable to judgments. It is a good idea to invoke such a procedure, if available in a
rendering state, before going outside for recognition and enforcement elsewhere. A second
forum unwilling to recognize and enforce an arbitration award coming directly out of forum 1
may be of a different mind if it is presented in the form of a duly rendered forum 1 judgment.
In some contexts, like a federal civil rights action, the Supreme Court has refused
preclusive effect to an unappealed arbitration award, perhaps by indirection reinforcing the
difference between an “unappealed” award and one that has been duly converted into a court
judgment.
On the international scene, a treaty to which the United States and a number of other
nations are parties calls for the mandatory recognition of arbitration awards rendered in a
signatory nation. This treaty applies to commercial disputes. It is also written in Internationalese,
which means that it contains a number of openings whereby recognition can be refused if the
award violates some basic policy of the forum in which it seeks enforcement.
Reading Comprehension
Exercise 1. Divide the text into meaningful parts and write a plan of the text.
Exercise 2. Express the main idea of each part of the text in a few sentences.
Exercise 3. Answer the questions about the text.
1.
2.
3.
4.
What is arbitration in contrast with ordinary litigation?
Name the topic of the text.
What is the attitude of American courts to arbitration?
Whose law governs a contract when it involves states having different attitudes to
arbitration?
5. What is the Restatement’s position towards the issue?
6. What is the way of the application of this stipulation by different states?
7. In what way is the matter viewed by the courts of New York?
8. What advice is given to an astute lawyer in respect of the application of these rules in two
opposed situations?
9. Name the situation in which state law does not govern the issue of arbitrability.
10. In what ways are arbitrability issues solved by federal courts and do they present any
difficulty in this field?
11. What aspects of the arbitrability question are deemed to be procedural?
12. What are the technical differences between the process of raising an arbitrability question
and answering it?
13. What are the provisions of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards?
14. Name the conditions for the recognition of the foreign arbitration award.
15. What procedure relating to the recognition of arbitration awards is usually supplied by
states? Name the reasons for its implementation.
16. What awards are not given preclusive effect?
17. What are the main aspects of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards?
Summarizing
Exercise 4. Summarize the text relying on the plan and using speech connectors.
UNIT 7
PROPERTY INTER VIVOS
Part I
Legal Terms
1.
title to property
правой титул, правооснование на имущество;
документ о правовом титуле
2.
domestic law
внутреннее, внутригосударственное право
3.
real and personal property
недвижимое имущество, «реальное» (в отличие от
«персонального»)/ движимое имущество,
«персональное» (в отличие от «реального»)
имущество
4.
(im)movables
(не)движимое имущество
5.
lex situs
закон места нахождения имущества
6.
inter vivos
прижизненный
7.
(in)tangible movables
(не)материальное движимое имущество
8.
chose in action
имущество в требованиях; нематериальное
имущество, на которое может быть заявлена
претензия
9.
assignment
передача права; уступка требования; цессия
10. (in)voluntary assignment
принудительная / добровольная передача имущества
или прав на него
11. assignability
возможность передачи права
12. assignee
правопреемник; цессионарий
13. assignor
цедент (лицо, передающее свои права другому лицу)
14. priority
преимущественное право
15. garnishee order
приказ суда о наложении ареста на имущество
должника у третьего лица или на суммы,
причитающиеся должнику с третьего лица;
наложение запрещения на требования должника к
третьему лицу
16. execution of a judgment
исполнение, приведение в исполнение судебного
решения
17. attachment
наложение ареста на имущество; судебный приказ о
наложении ареста на имущество
18. trust
доверительная собственность
19. decree of specific
performance
судебный приказ об исполнении в натуре, реальном
исполнении
20. subject matter of the action
предмет иска
Reading Comprehension
Exercise 1. Judging by the title of the text, what information would you expect to find in it?
Exercise 2. Skim Text 1 and read out the subheadings.
1. Would you structure the information in the same way if you were covering the topic
“Title to property”? If not, how would you break the topic down?
2. What else would you include?
3. What kind of property is denoted by the term ‘choses in action’?
4. What are ‘choses in possession’?
Exercise 3. Look through the first three paragraphs of the text and answer these questions.
1. What are the reasons why the original English classification is inapt for the purpose of the
Conflict of Laws?
2. What is the difference between contractual issues and proprietary questions?
3. Explain the term ‘title to property’ in your own words.
Exercise 4. What type of property do you think is the most difficult for classifying? Substantiate
your opinion.
Text 1. Title to property
(Abridged from Conflict of Laws by J. G. Collier)
The first question concerning title to property is how rights therein are to be
characterised. In English domestic law they are for historical reasons categorised into real and
personal property. This classification, being unknown to most systems of law, since these usually
categorise property as either immovable (which term includes all interests in land and the
buildings thereon) or movable, is obviously wholly inapt for the purpose of the conflict of laws.
Therefore, the English courts abandon their domestic classification and for that purpose adopt
the distinction between immovables and movables.
Title to property is, in general, governed by its lex situs, whether it is immovable or
movable, except that succession to movable property is governed by the law of the last domicile
of the deceased. In this unit only title to property derived from inter vivos transactions will be
dealt with. As for tangible movables, the application of the lex situs rule can be stated with some
confidence. Here the discussion will be concerned with intangible movables, of which the same
cannot be said.
Here it is vital to distinguish between contractual issues (if there is a contract) and
proprietary questions. The former issues are governed, in principle, by the applicable law of the
contract, but the proprietary issues by the lex situs of the property.
Movable property: intangible movables (choses in action). If the choice of law rule
relating to title to tangible movables is now tolerably clear, the same cannot be said of that
concerning title to intangibles. The difficulty, which pervades this topic, stems from two sources
of confusion. One is the failure to distinguish clearly between questions, which are related to the
right assigned, and questions related to the assignment itself. The other is the failure to
distinguish between proprietary and contractual issues.
Although some questions are contractual, and though these are dealt with fully in books
on the English law of contract, the assignment of a right to recover a debt has proprietary effects,
as does a contract to sell a car, and the tendency to regard the questions as mostly contractual
may be thought to lead to an overemphasis on the law governing the contract rather than on the
lex situs. Moreover, the interest in question may arise not out of a contract but by law, and there
may be no contract for the assignment. It may be either by way of gift, or it may be involuntary,
when it is imposed by law.
It is proposed to deal first with voluntary assignments, and to divide the discussion
between issues, which are connected with the interest assigned, and those, which depend on the
assignment itself.
Issues connected with the interest assigned. Where the interest arises out of a contract,
that is, where it is a simple contract debt, Article 12(2) of the Rome Convention on the Law
Applicable to Contractual Obligations, 1980, provides that: “The law governing the right to
which the assignment relates shall determine its assignability, the relationship between the
assignee and the debtor, the conditions under which the assignment can be invoked against the
debtor and any question whether the debtor's obligations have been discharged.”
Other questions in this category appear to be whether notice has to be given to the debtor
to permit the assignee to sue in his own name or whether he has to join the assignor as a party.
These issues concern the debtor and not only the parties to the assignment.
Presumably, 'the law governing the right' means the law applicable to the contract, if any,
out of which the interest arises and not the lex situs of the interest. If this is so, the applicable law
will be determined by the rules laid down in the Rome Convention if the contract out of which
the right arises is one, which falls within the Convention. If it is not within the Convention, the
applicable law will have to be determined by reference to the rules of common law.
Where the right assigned does not arise out of a contract, but is, for example, an
intellectual property right or a cause of action, it is not really possible to talk of the applicable
law. It is submitted that, in the case of these types of rights, the governing law should be the lex
situs.
Issues connected with the assignment. The assignment of an intangible is a transaction
between the assignor and the assignee. Article 12(1) of the Rome Convention now makes it clear
that, in so far as the assignment is by way of contract (and if it is by way of gift the choice of law
rules for contracts can be applied by way of analogy), contractual issues are decided by the law
which governs the contract of assignment and not by that which governs the interest assigned.
It is submitted that it is still possible to contend that the proprietary effect of an
assignment of an intangible movable should be governed by its lex situs. The Rome Convention
is only concerned with contractual obligations and it is quite possible to have a contract of sale
governed by one law and its effect on title governed by another. So it could be argued that,
assuming an assignment is valid by virtue of Article 12(1) of the Convention, it does not operate
so as to confer title to the debt on the assignee if by the lex situs it does not do so.
Priorities. Priority between successive valid assignments of the same interest is in
English law determined by the rule that the first assignee to give notice to the debtor will obtain
priority provided that when he took his assignment he knew of none preceding it. Other systems
of law may have different rules, as, for example, giving the first assignee in time priority.
The choice of the law to determine this may appear to lie between five possible
candidates: (1) the law of the place of the assignments; (2) their applicable law; (3) the
applicable law of the debt; (4) its lex situs; and (5) English law as lex fori. But (1) and (2) may
be discarded at once, for the place and the applicable law of the different assignments may differ
and there is no reason to prefer one to another. Moreover, who has priority obviously concerns
the debtor, since he has to know to whom he must repay the debt. He is a stranger to the
assignments themselves.
Involuntary assignments. An involuntary assignment is one, which occurs without the
agreement of the assignor and assignee.
(a) Garnishee orders. A garnishee order is a method of execution of a judgment, by attachment of
a debt. The making of an order is in the court's discretion, which will only usually be exercised if
the debt is situated in England. However, even if the debt is situated in England a garnishee order
may be refused if there is a real risk that the debtor will have to pay again.
(b) Priorities. Priority between two or more involuntary assignments of the same debt is
governed by the lex situs of the debt. The same rule applies where voluntary and involuntary
assignees are in competition.
Immovable property. English cases concerning title to foreign immovable property are
few, since it is only in exceptional cases that the English courts have jurisdiction.
The general rule is subject to two exceptions. These are as follows.
(i) Where the English court is exercising jurisdiction and administering an English trust
or will which consists in whole or in part of foreign land and question of title thereto arises
incidentally.
(ii) The English courts can act in personam upon a person within their jurisdiction to
enforce a personal obligation incumbent on him when the subject matter is land abroad, by
making a decree of specific performance against him and dealing with him as being in contempt
of court if he disobeys. The basic requirements are (a) that the defendant is within the
jurisdiction; (b) that the subject matter of the action arises out of a contract between the parties,
or concerns his fraudulent or other unconscionable conduct, or arises from an equitable or
fiduciary relationship; and (c) that the act the defendant is ordered to do must not be illegal or
impossible by the lex situs.
Vocabulary Work
Exercise 5. Read the text and suggest Russian equivalents of the following word partnerships.
Mind that in most cases there is no word-for-word correspondence.
abandon the domestic classification; succession to movable property; contractual issue;
proprietary question; be imposed by law; exercise jurisdiction; be in contempt of court; equitable
relationship; fiduciary relationship; incumbent on; fraudulent and unconscionable conduct
Exercise 6. Read the text and suggest English equivalents of the following word partnerships.
исполнить обязательства; уведомить; осуществлять юрисдикцию; судебный приказ об
исполнении в натуре, реальном исполнении; усмотрение (суда); передавать правовой
титул на долговое обязательство правопреемнику; относящийся к передаваемому праву;
право, регулирующее договор; право, применимое к договору; дарение, дар; наложить
арест на долговое обязательство
Exercise 7. Find the terms for the given definitions.
1 - land, including anything attached to it
2 - things that are movable and capable of being owned
3 - a thing that can be moved from one house, etc. to another; a personal possession
4 - personal property that can be felt or touched. Examples include furniture, cars, jewelry and
artwork
5 - personal property that has no physical existence, such as stocks, bonds, bank notes, trade
secrets, patents, copyrights and trademarks
6 - the law of the place where property is situated
Exercise 8. Render the sentences into English preceding them with the suggested speech
connectors.
1.
2.
3.
4.
5.
6.
................... в английском внутреннем праве собственность по историческим
причинам подразделяется на реальное и персональное имущество.
Эта классификация совершенно не подходит для коллизионного права. …………
английское суды от нее отказываются и признают различие между движимым и
недвижимым имуществом.
…………… вопросы, относящиеся к договору, регулируются правом, применимым
к данному договору.
................... они регулируются законом места нахождения имущества.
…………… необходимо провести различие между добровольной и принудительной
передачей прав на имущество.
……………. нормы, регулирующие право на нематериальное движимое имущество
не так ясны, как нормы, регулирующие право на материальное движимое
имущество.
7.
……………. в Англии подается мало исков, касающихся права на недвижимое
имущество, находящееся за рубежом.
Exercise 9. Fill in the gaps in the cloze-test.
1) proprietary
8) intangible
13) movables
2) property 3) real 4) immovable 5) title 6) domicile 7) domestic
9) immovables(2) 10) personal
11) movable(2)
12) tangible(2)
14) entitled 15) lex situs(2) 16) contractual
1. The first question concerning title to ____________ is how rights therein are to be
characterised. In English ____________ law they are for historical reasons categorised
into ____________ and ___________ property.
2. This pays no regard to the physical characteristics of the property and the division does
not coincide with a distinction between land, which is by its nature ____________, and
____________ objects such as a car or a diamond, which are ____________, and debts
or copyrights, which are ____________ but nevertheless are capable of being owned.
3. For example, if A dies intestate, domiciled in England and owning a farm in Ruritania
with animals on it, then if the animals are classified as movable, they will be inherited by
whoever is ____________to them under English law, since intestate succession to
____________is governed by the law of the last ____________ of the deceased. But if
they are regarded as ____________ (for foreign laws also have their idiosyncrasies)
because they are 'attached' to the farm, they will descend to whoever is entitled to them
by Ruritanian law, since the ____________ governs intestate succession to
____________.
4. ____________ to property is, in general, governed by its ____________, whether it is
immovable or movable, except that succession to __________ property is governed by
the law of the last domicile of the deceased.
5. Things such as cars, jewels and books are ____________ movables.
6. It is vital to distinguish between ____________ issues (if there is a contract) and
____________ questions.
Analytical Reading
Exercise 10. Read each part of the text. Render each part of the text in no more than one or two
sentences that would reflect the essence of the passage.
Exercise 11. Is the classification of property the same in the Russian legislation?
Exercise 12. Answer the questions on the text.
1. What is the first question concerning title to property? How are these rights categorized?
2. Is this classification adopted by English courts?
3. Why do the English courts abandon their domestic classification for the purposes of
Conflicts?
4. Explain the term ‘title to property’. What is it governed by?
5. What question should necessarily be answered before one starts dealing with property
assignments?
6. Why are the legal matters relating to title to intangible movables so difficult to interpret?
7. Explain these difficulties invoking the example given in the text (the assignment of a
right to recover a debt).
8. In what way is it proposed to deal with matters relating to title to movable property?
9. What two categories can the interests assigned be divided into?
10. What authority governs the issues connected with the interest arising out of a contract?
11. What does Article 12(2) of the Rome Convention on the Law Applicable to Contractual
Obligations, 1980 provide on the point?
12. What are the methods of determining the applicable law? What does their application
depend on?
13. What is the assignment of an intangible?
14. What authority are the contractual issues relating to the assignment of an intangible
governed by?
15. Why is the issue of the proprietary effect of an assignment of an intangible movable so
complicated?
16. What rules determine priority between successive valid assignments in different
jurisdictions?
17. What are the possible choice of law rules relating to the relevant priority?
18. What is an involuntary assignment?
19. Name the rules governing involuntary assignments.
20. Name two exceptions where the English courts have jurisdiction to decide cases
concerning title to foreign immovable property.
21. Explain the application of the second exception.
Summarising
Exercise 13. Write a plan and summarize the text using these speech links.
1. To introduce the theme of the text:
The text is concerned (with); deals (with); is devoted to the problem (of);
concerns itself (with); focuses/concentrates on the problem (of)
2. To list the information contained in the text:
The information covered in the text includes…; The text highlights the following
issues: …; The following information is presented in the text: …; Covering the
general theme of …; The text can be broken down into the following information
items: …
3. To dwell on the essence of each of the information items and to structure
your summary:
First(ly), …; Second(ly), …; Third(ly)/The third point made in the text is …; Next
/ Furthermore / Then, …; Finally, …; In conclusion it should be pointed out that
…; To conclude, …
4. Depending on the nature and contents of the text you may or may not have to
or want to make an inference from it that would contain its main idea (in
other words, the explanation why the text was written in the first place). If
you do, use the speech clichés suggested at the end of the previous item:
To conclude, In conclusion, etc.
PROPERTY INTER VIVOS
Part II
Legal Terms
1.
gift
акт дарения (добровольная передача собственности
одного лица другому)
2.
gratuitous transfer
безвозмездная передача
3.
competent donor
право/дееспособный даритель
4.
donee
одариваемый, дарополучатель
5.
delivery
формальная передача собственности; ввод во владение
6.
relinquishment
отказ (от права)
7.
mortis causa
в случае смерти, смертельный случай
8.
consideration
встречное удовлетворение; компенсация;
вознаграждение; возмещение
9.
donative
дарственный; переданный в дар, внесенный как
пожертвование
donative conveyance передача в дар правового титула; акт дарения
donative intent
намерение передать в дар
10.
royalties
вознаграждение, гонорар
11.
note
долговая расписка, долговое обязательство, вексель
12.
bill
вексель
13.
certificate of title
удостоверение на право владения; сертификат права
собственности
14.
stock certificate
сертификат акции, акционерный сертификат
15.
adjudge
признать; установить; решить, объявить (в судебном
порядке)
16.
construction
толкование
17.
effectuate the transfer
совершать передачу
18.
chattel
движимое имущество
19.
sustain
утверждать, поддерживать
20.
rule of validation
правило придания юридической силы
21.
obtain good title
получить неоспоримый правовой титул, достаточное
правооснование
22.
perfect interests in smth окончательно оформить, формализовать права на чтолибо
23.
deed
акт передачи права
24.
lien on realty
право удержания на недвижимое имущество
Text 2. Gifts (Gratuitous transfers inter vivos)
(Abridged from Conflicts in a Nutshell by D.D. Siegel and P. J. Borchers)
The term “gift” is generally restricted to mean gratuitous transfers inter vivos (among the
living) of real or personal property. A valid gift requires: (1) a competent donor; (2) an eligible
donee; (3) an existing identifiable thing or interest; (4) an intention to donate; (5) delivery; i.e., a
transfer of possession to or for the donee and a relinquishment by the donor of ownership,
control, and power to revoke (except in gifts mortis causa; i.e., those that are made by someone
believing himself to be near death and that become final only if the giver dies); and (6)
acceptance by the donee. Anglo-American law acknowledges implied acceptance.
In Anglo-American law a promise to make a gift is not a binding contract, because it
lacks the essential element of consideration (the requirement that to be valid a contract must
involve a bargained value).
Lacking the contract to make the gift valid, Anglo-American law has long puzzled over
the donative conveyance of movables. The traditional doctrine holds that there has to be
delivery, a transfer of possession of the thing accompanied by donative intent on the part of the
donor, and acceptance by the donee. Acceptance will be presumed, but evidence of both delivery
and donative intent has long been thought to be essential. The contortions that this doctrine
produces, particularly in situations where the donative intent is clear but the thing in question is
awkward or impossible to deliver, have long been noted by courts and commentators alike.
Recently, Anglo-American courts seem to be increasingly willing to allow the delivery of a
writing embodying a statement of the gift to substitute for the delivery of the thing itself.
In the case of an ordinary gift by a living donor, it is made by the donor merely giving the
thing to the donee. The validity of the transfer will be governed by the law of the place where the
transfer is made. It is also permissible to accompany the gift with a writing selecting the law to
be applied, and the general rule here as in contract cases is that if the law selected is that of a
reasonably related jurisdiction, the choice will be honored.
The rule that a gift of personal property will be governed by the law of the place where
the gift is made is readily applied to tangible property, including interests embodied in written
instruments when the instrument paper is deemed the property. Money itself is a tangible and
subject to this rule. Insofar as it lends itself to the particular case, the rule also applies to
intangibles, but if the property is intangible it will usually take a paper of some kind to effect the
gift, as where it consists of a patent right or royalties. If the interest is embodied in a more formal
instrument, such as a check, note, bill, certificate of title or stock or the like, the instrument, as
indicated, is likely to be deemed the property and a gift of it will be adjudged by the law of the
place of its delivery. The Uniform Commercial Code and especially its Article 3 on commercial
paper will be relevant even in gift cases and should reduce choice of law problems at least on the
domestic scene. Whether a gift can be shown to be within the substantive reach of the UCC or
not, however, the UCC is not everywhere applicable, nor necessarily given the same construction
in states where it does apply, and so it does no harm to see that the method of a paper’s transfer
satisfies not only the law of the place where the transfer is made, but also the law of such other
place as may have some say about the paper involved. If, for example, a share of stock in a State
C corporation is transferred in State T, and they have different rules about what must be done to
effectuate the transfer, steps that will please both should be taken.
If the transfer is made by the donor in State R sending the chattel to a donee in State E,
and the donor is a competent adult and the transfer is clearly voluntary, the law of State E will
usually govern if the laws of the two states differ, or – more than likely today in view of the
apparent wishes of the donor to make a gift of the property – it will be sustained if valid by the
laws of either place. This is known as “the rule of validation”. The principal cases manifesting
circumstances like these involve trusts, but gifts in trust are gifts nevertheless, and, invoking
essentially the same rules, supply answers applicable generally.
If a transfer is made in State R, and the donee obtains good title to the property there,
only afterwards taking it elsewhere, say to State X, the general rule is that the donee’s title will
be respected even though the original transfer in State R might not be valid as measured by State
X law. Further transactions by the donee in State X will be measured by the usual rules,
premised now on the donee’s ownership. In other words, interests in a chattel perfect in State R
before the chattel is carried into State X, persist in State X and will be recognized there. While
this rule presumably applies to property subjected to security interests in State R before removal
of the property, the issues are never that simple in the “secured transactions” category, and some
extra precautionary steps may be advisable.
Gifts of real property have caused less difficulty in Anglo-American jurisdictions. It is
well established that a writing (deed) is necessary for the transfer of title to real estate; it is
common for deeds to recite at least nominal consideration, but no preliminary contract is
required for title to pass. Recording of the deed is necessary to make it binding as to subsequent
good-faith purchasers from (but not donees of) the same donor.
The immovability of realty has given primacy to situs law, so that anything a lawyer does
to effect a transfer of any interest in real property should satisfy the law of its situs first and
foremost, and in respect of both form and substance. A deed to or mortgage or other lien on
realty by way of inter vivos gift (or any other dealing, for that matter) should be in the form the
situs requires.
Does a reference to situs law mean the internal law of the situs, or its choice of law rules?
Since the situs must as a practical matter be respected for almost anything concerning realty, it is
appropriate – if the situs wants the law of some other place applied because of a given element
present on the facts – to apply that other law. For this reason the Restatement’s position is that
the whole law of the situs, including its choice of law rules, governs. The purpose is to have the
forum court reach the same result the situs court would.
Reading Comprehension
Exercise 1. Answer the questions about the text.
1. Explain the meaning of the term ‘gift’.
2. What are the requirements to a valid gift? Explain the meaning of each term given in
italics.
3. What is the difference between a gift and a contract?
4. Name the main elements of the donative conveyance of movables according to the
traditional doctrine.
5. What aspects of this doctrine form the major source of confusion?
6. What law governs the validity of the transfer of movables?
7. What are the particularities of the transfer of tangible and intangible personal
property?
8. Name the law that regulates the transfer of the interest embodied in a formal
instrument?
9. What official document reduces choice of law problems in the US?
10. What are the particularities of the UCC application?
11. Give an example illustrating the rule of validation.
12. Giving an example, explain in which state the interests in a chattel perfect.
13. Why is the issue of secured transactions treated separately?
14. Why is it stated that gifts of real property have caused less difficulty in AngloAmerican jurisdictions?
15. What law governs transfers of immovables and why?
16. Explain what the reference to situs law means in this context.
Summarising
Exercise 2. Write a plan of the text and express the main idea of each item in a few sentences.
Exercise 3. Summarize the text in written form.
UNIT 8
SUCCESSION IN CONFLICT OF LAWS
Part I
Legal Terms
Characterisation. Administration of Estates
1. administration of an estate
управление имуществом умершего
2. personal representative
личный представитель (умершего)
3. distribution
распределение (наследственного) имущества
4. estate
имущество, собственность
5. collection of debts due by the
получение долгов, причитающихся с имущества
(умершего)
estate
6. postpone sale of estate property отложить продажу наследственного имущества
7. maintenance and advancement
выделение средств на существование и
имущественное предоставление (в порядке
of minor beneficiaries
антиципации наследственной доли)
несовершеннолетним выгодоприобретателям
8. succession
правопреемство, наследование
9. probate
доказывание завещания; доказательство
подлинности завещания
10. letters of administration
судебное полномочие на управление
имуществом умершего, назначение
управляющего наследством
11. grant of representation
разрешение, полномочия на представительство
12. nil grant
лат. «ниль грант», разрешение на пред
ставительство при отсутствии имущества
в Англии
13. make title to property
доказать правовой титул на имущество
14. in a representative capacity
15. entitled (to smth)
16. appoint anyone it (the court)
thinks fit
17. ancillary grant
18.
19.
20.
21.
minority
life interest
surplus assets
time-barred
Distribution: Movable Property
22. provisional
Provisional Government
23. enact a decree
24. penal and confiscatory
в качестве представителя
получивший правовой титул на что-либо,
имеющий право на что-либо
назначить того, кого он (суд) считает
нужным
дополнительное разрешение, дополнительные
полномочия
зд. несовершеннолетние
пожизненное право
излишнее, избыточное имущество
погашенный давностью
временный
Временное правительство
принять указ
карательный и конфискационный
25. bona vacantia
лат. "бона ваканциа", юридически
свободное, бесхозное имущество
26.
27.
28.
29.
отсутствие наследников
лат. право короны
кадуциарное право
лат. последний наследник
default of successors
jus regale
caduciary right
ultimus heres (haeres)
Wills of Movables
30. legatee
31. legator
наследник по завещанию
завещатель
32.
33.
34.
35.
36.
отменять (о законе)
действительность по форме
действительность по существу
лат. законная часть наследства
завещательный отказ движимости
repeal
formal validity
essential validity
legitima portio
bequest
Revocation of Wills of Movable Property
37. revocation
отмена, аннулирование
38. subsequent marriage
последующий, более поздний брак
39. appointment
распределение наследства по доверенности
40. ipso facto [ 'ipsou 'fǽctou]
50. codicil
51. testamentary acts
Immovable Property
52. testate succession
53. intestate succession
54. disposition
55. take under a will
56. debts due by the estate
лат. в силу самого факта
дополнение к завещанию
завещательные документы
наследование по завещанию
наследование без завещания
отчуждение (имущества); распоряжение
(имуществом)
наследовать по завещанию
неоплаченные долги с имущества
Other Vocabulary Items
1.
in respect (of)
в отношении (кого-либо или чего-либо)
2.
3.
4.
5.
6.
7.
8.
9.
suffice
wreck
treasure trove
it is submitted
alleviate
ineptly and inaptly
permutation
inconsistent
быть достаточным
обломки судна
найденный клад
предполагается
смягчать
неуместно и неумно
изменение
несоответствующий, несовместимый,
противоречащий
10. comply (with smth)
Reading Comprehension
соответствовать ч.-л.
Exercise 1. Answer the questions.
1. When does the problem of succession arise?
2. What kind of property can be inherited?
3. What documents establishing succession do you know?
Exercise 2. Scan the whole text and say what problems concerning succession it deals with.
Make an outline of the text.
Exercise 3. Read the part Administration of Estates quickly, consulting the list of legal terms if
needed, and say what problems are considered there.
Exercise 4. Read the part Distribution. Movable Property and say what it deals with.
Exercise 5. Read the part Wills of Movables quickly and say what legal problems are discussed
in it.
Text 1. Succession
(Abridged from Conflict of Laws by J. G. Collier)
Characterisation
A distinction must be made between the administration of an estate by the personal
representatives and its distribution among those entitled to it. Administration includes those
matters not concerned with distribution of the estate and which arise before distribution takes
place. It includes collection of debts due by the estate and other matters of management, such as
the power of English administrators to postpone sale of estate property, and power to make
payments out of the estate for the maintenance and advancement of minor beneficiaries.
Administration of estates
Choice of law. Although succession in the sense of distribution is generally governed by the lex
situs in the case of immovables and the lex domicilii of the deceased in the case of movable
property, matters of administration are governed by the law of the country where the personal
representative obtained his power to act. Thus, if he obtained probate or letters of administration
from an English court, English law will govern, as the lex fori.
Jurisdiction. The English courts have jurisdiction to make a grant of representation if the
deceased left property in England, and such a grant will normally extend to all his property
wherever it is situated. Until 1932 no grant could be made unless there was property here, but
now such a grant (known as a 'nil grant') may be made although there is not. Normally a grant
will not be made in such circumstances but a case in which it will is where the court of the
country where the property is situated requires an English grant in respect of the estate of a
person of English domicile or British nationality.
Foreign personal representatives. Usually, an English grant of representation is needed by a
foreign personal representative for him to be able to make title to and administer property here.
A foreign grant does not suffice for him to act here or sue here in his representative capacity, nor
can he be made liable in that capacity. The procedure for obtaining an English grant is now laid
down in the Non-Contentious Probate Rules, 1954. These give preference among claimants to a
person who has been appointed personal representative under the law of the deceased's last
domicile, but if there is none, preference is given to the one who is entitled to appointment under
that law. Nevertheless, this is not automatic, and the court may appoint anyone it thinks fit,
especially if no one can prove his rights under the foreign law or if there are special
circumstances. If a foreign personal representative seeks an English grant on the strength of his
foreign grant, he will normally ask for an ancillary grant and English courts will follow the
decision of that of the deceased's last domicile. But they are not bound to do so, and will not
make a grant to anyone, such as a minor or where there is a minority or life interest, to whom a
grant could not properly be made under English law.
If an English grant is ancillary to a foreign grant of representation, the English
representative will normally be allowed to hand over any surplus assets after the creditors have
been paid off to the principal administrator appointed under the law of the last domicile if he is a
different person. It may, however, restrain this being done if it would result in benefiting persons
who have no claim in English law, such as a creditor whose claim is time-barred or a person who
would receive under a will void by English law.
Distribution
Movable property. Once administration is completed, the estate must be distributed to those
entitled to it. As a general rule, and by way of exception to the principle that title to property is
governed by its lex situs, succession to movable property is governed by the law of the last
domicile of the deceased. The question which arose in the exotic case of Lynch v. Provisional
Government of Paraguay was, does this mean the law of the country where the deceased was
domiciled at the time of his death, whatever its relevant rules may be at the time it falls to be
distributed, or that law as it was at that time? If it means the former, changes in the law will be
taken into account; if the latter, they will not. The court decided that it meant the latter.
Lopez, dictator of Paraguay, died in 1867 after defeat in a war against Argentina, Brazil and
Uruguay. He left property, including funds in a London bank, to his Irish mistress, Madam
Lynch. She sought probate of the will in England, but this was opposed by the Provisional
Government, which, after Lopez's death, had enacted a decree purporting to invalidate his will
and to confiscate his property to the state.
The Government's claim was rejected; it was held that Lopez's will, being valid by
Paraguayan law when made and when he died, was not invalidated by the subsequent change in
that law. The decision is not a very strong one since the decree was penal and confiscatory. Also,
and more significantly, the property was in England and, as Lord Penzance pointed out, the
Provisional Government's claim was not a claim by way of succession; it was really making a
claim to the property based upon the confiscatory decree. But Paraguayan law not being the lex
situs, such a claim must fail.
The law of the last domicile governs intestacy. It ceases to operate, however, when there
is, or remains, no one who, under that law, can succeed on intestacy. If the property is in
England, then, as with other ownerless property or bona vacantia such as treasure trove and
wreck, it will, under English law as the lex situs, go to the Crown by prerogative right; the law
governing the succession to the estate has ceased to be relevant. This is also true, even if
someone exists who could succeed by English law, if English law does not govern the
succession. If, under the law of the country of the last domicile, the foreign state, government or
treasury would take the deceased's property in default of successors, by way of bona vacantia or
jus regale (what are known as 'caduciary' rights), the Crown will take the property. But if it
would be entitled under its law to take by way of succession in the absence of anyone else
entitled to succeed it will be entitled to claim the property in England. Thus, in Re Maldonado,
Maldonado died domiciled in Spain by whose law, in default of any other successor, the Spanish
state was entitled to all the intestate's property as ultimus heres and not by caduciary right.
It was held that the Spanish state was entitled to his property here, to the exclusion of the Crown.
The decision has been severely criticised as an extreme example of characterisation by the lex
causae by paying too much attention to the wording and appearance of that law, rather than to its
true object and effect. But the decision seems correct; if we regard the issue as being one of
succession to movables, we must apply the rules of succession of the law of the last domicile.
Wills of movables. Capacity to make a will is determined by the law of the domicile of the
deceased. The unanswered question here is, when the deceased's domicile changed between his
making his will and his death, and either he had capacity at the time of making the will but none
when he died or vice versa, which law is to govern? The question is not really answered by
reference to English domestic law, under which capacity is determined at the time of making, for
that is not concerned with a change of domicile. However, it is submitted that if the deceased
lacked capacity when he made the will, it is not validated by a change of domicile, for there is
nothing to be validated, but if he had capacity at the time of making, the will should not be
invalidated in consequence of a change of domicile.
Capacity to take as a legatee is determined by the law of the testator's last domicile or by
that of the legatee's domicile, whichever is the more favourable.
Formal validity of wills requires fuller consideration, since it has been the subject of
legislation.
This was governed at common law by the law of the testator's last domicile. In Bremer v.
Freeman a will made in France by an Englishwoman who had died domiciled in France, which
was valid by English but not by French law, was held invalid. The inconveniences of this to
British subjects were to some extent alleviated by the passing, four years later, of the Wills Act
1861, known as Lord Kingsdown's Act, but this was rather ineptly and inaptly drafted. However,
that Act was itself repealed and replaced by the Wills Act 1963.
The 1963 Act provides a selection of seven laws by which the formal validity of a will
can be established: the law of the place where the will was made and the law of the domicile,
nationality or habitual residence of the testator, at the time he made the will, or when he died. In
the application of these laws, renvoi is excluded. Any alteration in the relevant law after the date
of making of the will applies if it validates the will, but not if it invalidates it. Any requirement
of a relevant law that a person can only make a will in a certain form is to be treated as a matter
of form and not of capacity. Special rules govern the validity of wills made on board merchant
ships.
The essential validity of a will is governed by the law of the last domicile. This
determines whether and to what extent a will is invalid by reason of a requirement that a certain
part of the estate must go to a particular person or class of persons (this is sometimes known as
the legitima portio).Renvoi has been applied in such a situation. In Re Priest a bequest to a
witness of a will of a testator who died domiciled in England was held to be void, as is the case
under English law, since the validity of the bequest was regarded as a matter of essential validity
and not of form. The decision has been criticised, but seems correct in principle.
Interpretation or construction of wills of movables is governed by the law intended by the
testator. In the absence of an express statement that some other law is to govern, or wording
which suggests that that was his intention, this is presumed to be the law of his domicile at the
time he made the will. The Wills Act 1963 provides that a change of domicile after that time
shall not affect the interpretation of the will. It may be added that, by way of exception to the
application of the lex situs, the same rule applies to wills of immovable property.
Revocation of wills of movable property. There is little case law on this matter, except where the
subsequent marriage of the testator was in issue. In principle the question whether a will has
been revoked should be answered by the law of the testator's domicile at the date of revocation.
In Velasco v. Coney (a case on the power of appointment under a will) a testator domiciled in
Italy purported to revoke an appointment under a will which had been executed in conformity
with Italian and English law in a manner effective by Italian law but not by English law. It was
held that the appointment was effectively revoked.
But a will may be revoked in several different ways. Under English law, for example, it
may be revoked by (a) an act of revocation, such as burning, tearing up or otherwise destroying
it; (b) change of circumstances: by the Wills Act 1837, section 18, it is usually revoked ipso
facto by a subsequent marriage of the testator; (c) the execution of a later will or codicil. These
require separate consideration.
An act of revocation. The problem here is caused by changes of domicile. It may be argued that
since a will only operates from death it is the law of the domicile then which should govern the
issue, and determine whether the act revoked the will. But if the domicile was different when the
act was done and it was by the law of that domicile an effective revocation, there is no
instrument for the law of the domicile at death to operate upon. It has been suggested that the
following possible cases and consequences may occur: (1) T domiciled in A makes a will. He
acquires a domicile in B and burns the will. He dies. By the law of A this burning does not
revoke the will, by the law of B it does. The will is revoked. (2) T domiciled in A makes a will
and burns it. He acquires a domicile in B and dies there. By the law of A the burning revokes the
will, by the law of B it does not. At the death in B there exists no will since it was revoked
earlier. (3) T domiciled in A makes a will and burns it. He acquires a domicile in B and dies.
Under A law the burning does not revoke the will but by B law it does. At first sight one might
say the will has been revoked. But as has been suggested it is probably not revoked, since when
the act was done it was not in law (A law) a revocation, and when it could have been an act of
revocation (by B law) no such act occurred.
Subsequent marriage. Again, problems arise if the testator changes his domicile. By the law of
Scotland, for example, a will is not revoked by his subsequent marriage. Once again, different
permutations of fact require consideration. (1) H, domiciled in England, makes a will. He
acquires a Scots domicile and marries an Englishwoman. At his death the validity of the will is
governed by Scots law and it is not revoked. (2) The same facts, but H marries before changing
his domicile. The will is revoked by English law and there is no will upon which Scots law can
operate. This was decided in Re Martin, a case concerning the will of a Frenchman. The rule is
said, however, not to be a rule of testamentary law, but of matrimonial law and governed by the
law of the parties' domicile immediately after marriage, by which was meant the husband's
domicile at that time. (3) H domiciled in Scotland makes a will and marries. He acquires an
English domicile and dies in England. The will is not revoked since it was not revoked by the
law of the domicile at the time of the marriage. (4) The same facts, but he acquires a domicile in
England before marrying. The will is revoked.
Testamentary acts. This question really involves the validity or interpretation of a will or other
testamentary act. A later will or codicil may expressly revoke an earlier will, or may impliedly
do so, as where its provisions are inconsistent with those of the earlier will.
Express revocation. Whether a will is expressly revoked by a later will or codicil depends on
whether the later instrument is valid under the law governing the matter, generally that of the
testator's last domicile. If it is valid under the latter law, the earlier will is revoked. By the Wills
Act 1963 the second instrument is effective to revoke the first if the second complies with any
law governing the validity of the first, though not so effective by the law governing its own
validity.
Implied revocation. When the second instrument does not expressly revoke the first but their
provisions are mutually inconsistent, the question is one of interpretation of the second
instrument, so whether it was meant to revoke the first is a question answered by the law of the
testator's domicile when he created the second one.
Immovable property. This is governed generally by the lex situs. Renvoi has been applied in this
area. The lex situs governs intestate succession. With respect to testate succession, though there
is no authority, on principle the lex situs should govern capacity to make a will, as it clearly
governs capacity to take under a will. Whether a will has been revoked depends on the lex situs.
Formal validity of a will is governed by the lex situs. This rule is preserved by the Wills
Act 1963, which, however, extends to wills of immovables the other choice of law rules laid
down therein.
The essential validity of a disposition under a will of immovables is also governed by the
lex situs. In Nelson v. Bridport a disposition of lands in Sicily by the second Lord Nelson
became invalid under that country's law and was for that reason held to have been invalidated.
Interpretation of a will of immovables is governed, as we have seen, by the law intended
by the testator. This is usually taken to be the law of his domicile at the time he makes the will.
Vocabulary Work
Exercise 6. Find the corresponding verbs, nouns, and adjectives, related to the following words.
a
administration
c
legatee
b
intestacy
d
succession
Exercise 7. What are the corresponding nouns of the female gender to the following nouns:
testator, administrator, executor? Give the Russian equivalents of those words.
Exercise 8. Explain the difference between “probate” and “probation.”
Exercise 9. Find the sentence in the part Distribution. Movable Property: “But Paraguayan
law not being the lex situs, such a claim must fail.” Read it, understand it and then translate it
into good Russian.
Exercise 10. Match these legal concepts with their definitions.
a intestacy
1 the only person having the title to the estate
b ultimus heres
2 lack or absence of a will
c treasure trove
3 lack or absence of heirs
valuable objects, coins, etc. that are found where they have been hidden
4 or buried and which are not claimed by anyone
d bona vacantia
e default of
successors
5 ownerless property
Exercise 11. Match the nouns “will” and “testament” with the following words to form
collocations (use a dictionary if necessary):
military
of the decedent
(h)olographic
to make
ill
disputable, disputed
the earlier
the later
the validity of
sea
reciprocal
probated
Analitical Reading
Exercise 12. Read the part Characterisation and answer the questions.
1. What is being characterised here?
2. What are the two main stages of dealing with the estate of the deceased
person?
3. What does the administration activity include?
4. What is meant by distribution?
5. Who are beneficiaries?
6. What is “estate”?
Exercise 13. Read the part Administration of Estates again and answer the questions.
1. What law rules are distribution of movable and immovable property of the deceased and
matters of administration governed by?
2. What instruments does the personal representative have to obtain for their power to act?
3.
4.
5.
6.
What is “nil grant”?
In what case is the ancillary grant necessary?
Where do surplus assets go?
What may restrain handing over the surplus assets to the administrator?
Exercise 14. Read the part Distribution. Movable Property again and answer the questions.
1.
2.
3.
4.
5.
What is succession to movables governed by?
What is intestacy? What is it governed by?
What problem arises in default of successors?
What do the cases considered in the text illustrate?
In what kind of states can jus regale be used?
Exercise 15. Read the part Distribution. Wills of Movables carefully and answer the questions.
1.
2.
3.
4.
5.
6.
What kinds of capacity are considered in the text?
What laws are they determined by?
What kinds of validity does a will require?
What is formal validity governed by?
What is essential validity governed by?
What is the role of the testator in interpretation of the will?
Exercise 16. Read the part Distribution. Revocation of Wills and answer the questions.
1.
2.
3.
4.
5.
What are the three ways of revoking a will under English law?
What law is revocation of wills of movable property governed by?
Can you illustrate or just explain the meaning of each of the three ways of revocation?
What are testamentary acts?
What is the difference between express and implied revocation?
Exercise 17. Read the part Distribution. Immovable Property and answer the questions.
1. What does the lex situs govern as far as succession to immovable property is concerned?
2. Does it govern the interpretation of a will of immovable property?
3. What is meant by disposition of land?
Exercise 18. State the difference between:
a. succession to movable and immovable property;
b. testate and intestate succession to movable property;
c. testate and intestate succession to immovable property.
Summarising
Exercise 19. Write a summary of the whole text, expressing the content of each part in 2-3
sentences and making use of the relevant speech clichés.
SUCCESSION IN CONFLICT OF LAWS
Part II
Legal Terms
1.
execution of a will
исполнение завещания; оформление
завещания
2.
validity of a will
юридическая сила или действительность
завещания
adjudge the validity of a will
вынести судебное решение о юридической
действительности завещания
guage [geidg]the validity of a оценивать или проверять юридическую силу
завещания
will
3.
come in issue
быть поставленным под вопрос; вызывать
сомнения
4.
frustrate the testator's
intentions
расстраивать планы или игнорировать
намерения завещателя
5.
will code
наследственный кодекс
6.
draft a will
составлять завещание
7.
transfer of personal property
переуступка движимого имущества
8.
Restatement 2nd of Conflict of
Laws
Второй пересмотренный свод норм
коллизионного права (США)
9.
whole law
все право, весь свод правовых норм (включая
материальное, процессуальное и коллизионное
право какой-либо юрисдикции)
Text 2. Succession to personal property in the US
(Abridged from Conflicts in a Nutshell by D.D. Seigel and P.J. Borchers)
Post-death transfers of personal property by will
When the decedent has left a will, the first question to ask is whether the will is valid,
and this is true without regard to where the decedent's personal property may be located. But
whose law will determine whether the will is valid? The most obvious place is the decedent's
final domicile, and of course if the will satisfies domicile law in respect of execution and
formalities and all of the decedent's personal property is located there, its instructions on
distribution will be carried out. But what about property left elsewhere?
Since the decedent may have left property in various states, it may be necessary for the
personal representative to go to the state (or states) in which personal property was left and
perhaps even bring a court proceeding there to get possession of it. And it may be necessary to
have "ancillary" letters issued there. Should such suit be necessary, and assuming that ancillary
letters have been obtained if required, the validity of the will may come in issue in the foreign
court. If it does, what law will the court apply to adjudge its validity?
If each state in which personal property has been left and in which a proceeding is
necessary were to gauge the validity of the will by its own internal requirements for execution, a
will valid when and where made might be rejected by another state, frustrating the testator's
intentions entirely. To remedy this, most states have adopted one version or another of a uniform
will code that recognizes a will as long as it is valid under the law of any of several likely places,
including the decedent's domicile at the time of his death or at the time of the will's execution,
the place of its execution, or the situs of the affected property. This is a fine safety valve, but if a
lawyer drafting a will knows of the several states in which the client has or is likely to have
substantial property, there is nothing wrong with quickly checking into the execution rules of
such places and seeing to it that the will satisfies all of them. An extra witness or an extra ritual
may prove all that is required.
If the will is valid under the rule being applied in the court that is hearing the issue, the
transfer that it makes of the personal property will be upheld.
Post-death transfers of personal property in intestacy
If the decedent dies intestate, her personal property, wherever it is situated, will usually
be distributed according to the laws of intestacy of her final domicile. So common is acceptance
of this rule in our jurisprudence that it is sometimes deemed the product of constitutional
demand. It has no such force, however, and, indeed, a maverick state may sometimes adopt a
different rule, such as one that orders distribution of locally found personal property pursuant to
its own intestacy lists even though they differ from the domicile's.
The Restatement's position is that a reference to domicile law for rules on intestate
distribution of personal property is intended to be to the domicile's whole law, including its
choice of law rules. That sets the stage for renvoi, but the point is not often at issue among
American states because the ultimate stopping point, whether the trip is direct or indirect, is
usually the domicile's internal law.
Reading Comprehension
Exercise 1. Divide the text into meaningful parts and write a plan of the text.
Exercise 2. Express the main idea of each part of the text in a few sentences.
Exercise 3. Answer the questions about the text.
1. What question is of major importance in succession by will?
2. What is the most obvious place whose law is to govern the issue of post-death transfer of
personal property by will?
3. Under what circumstances will the instructions of the will be carried out?
4. Im what case may the validity of the will as subject to the law of the decedent's domicile
come in issue?
5. What actions may become necessary for the personal representative in case the decedent's
property is found in various states?
6. What may happen in a probate proceeding in a state different from the decedent's
domicile?
7. What is the remedy to avoid the contradicting probate decisions of several courts?
8. What recommendation is given to a lawyer drafting a will?
9. How will the decedent's personal property be usually distributed in intestacy?
10. Is the law of the decedent's last domicile stipulated in the US Constitution?
11. What is the Restatement's position as regards succession in intestacy?
Summarizing
Exercise 4. Write a summary of the text relying on your plan and using relevant speech clichés.
Unit 9
FAMILY LAW
Part I
Legal Terms
1.
validity
юридическая сила; юридическая
действительность
formal validity
действительность со стороны формы
essential validity
действительность по существу
2.
nullity
ничтожность, недействительность
3.
celebrate a marriage by proxy
заключить брак по доверенности, через
представителя
4.
legal capacity
право и дееспособность
5.
consent
совпадение воль, согласие; давать
согласие
6.
consummate a marriage
консуммировать брак, вступать в
супружеские отношения
7.
call banns
оглашать (в церкви) имена вступающих в
брак
8.
locus regit actum
лат. форма сделки определяется законом
места ее заключения
9.
lex loci celebrationis
лат. закон места заключения брака
10. personal law
личный закон (одна из основных формул
прикрепления в коллизионном праве)
11. be under age
не достичь совершеннолетия
12. consanguinity
кровное родство
13. void
ничтожный, не имеющий юридической
силы
14. antenuptial
добрачный
15. matrimonial
брачный, супружеский
matrimonial home
семейный дом, семья
matrimonial cause
дело о разводе
matrimonial relief
гражданско-правовое средство судебной
защиты в семейных спорах
16. vitiate
делать недействительным, лишать
юридической силы
17. voidable
оспоримый, могущий быть
аннулированным
18. petition for a divorce
подать заявление в суд о расторжении
брака
19. decree
судебное решение в виде постановления
или приказа (суда)
nullity decree
судебное решение о признании
ничтожности (брака)
20. incapacity
неправоспособность; непригодность,
неспособность
21. wilful refusal
умышленный (сознательный) отказ
22. postnuptial
послебрачный
Reading Comprehension
Exercise 1. Read Text 1 to analyze the logical organization of the text and to decide which
subheading given below goes with which section of the text. Choose one subheading for
each space (letters A-D)
1. Consent of the parties to a marriage
2. Formal requirements of marriage
3. Legal capacity to marry
4. Physical incapacity
Exercise 2. Which sections of the text do you think will contain answers to the questions
below. Read the relevant sections of the text quickly to find the answers.
1. What are the main requisite formalities of a valid marriage?
2. On what grounds may the English courts recognise a marriage celebrated by proxy
as valid?
3. What two choice of law rules govern capacity to contract a valid marriage?
4. By English law, does lack of consent render a marriage void or voidable?
5. What defect of marriage may constitute a common ground for nullity in legal
systems in general and in the English legal system in particular.
Exercise 3. Read the whole text and decide if the following statements are true or false.
1. In the case of Berthiaume v. Dastous the marriage was rendered invalid because it
did not comply with the requisite formalities of English law.
2. In McCabe v. McCabe the marriage was regarded as valid because it was celebrated
in compliance with the formalities of English law.
3. Lack of the parties’ consent to marry is a matter of essential validity and so governed
by the parties’ personal law.
4. The requirement of parental consent to the marriage of a person under 18 is a matter
of formal validity, rather than of capacity by English law.
5. As is now generally held legal capacity to marry is governed by the law of the
country with which the marriage has a real and substantial connection.
6. Before about 1860 the lex loci celebrationis was regarded as governing all questions
affecting the validity of a marriage.
Text 1. Choice of Law Rules in Marriage
(Abridged from Conflict of Laws by J. G. Collier)
A______________________________________________________
The choice of law rules which govern the validity of a marriage, and which, therefore, also
govern nullity of marriage, depend on the particular issue which is involved. The old rule of English
conflict of laws was to the effect that, whatever the ground of invalidity that was alleged, the
conclusion of a marriage was a matter for the law of the place where it was celebrated. But since
about 1860 this rule has, generally speaking, been confined to questions of formalities of marriage.
There now exist several different choice of law rules for marriage, some of which are disputed or
difficult to state with full confidence.
Basically, there are four requirements of a valid marriage: (i) that the requisite formalities
are complied with; (ii) that the parties have legal capacity to marry each other; (iii) that they freely
and knowingly consent to do so; and (iv) that the marriage is consummated.
Formal requirements of a marriage include such matters as whether a religious or a civil
ceremony is necessary, whether banns have to be called or notices published and the form of
words which must be used. No rule of the conflict of laws is clearer or longer established than the
one which lays down that these matters are regulated by the lex loci celebrationis, the law of the
place where the ceremony takes place, which reflects the rule locus regit actum. Thus a ceremony
which takes place in France produces a formally valid marriage if it complies with the formal
requirements of French law; it does not do so if it complies with the personal law of the parties
but not with French law. This was made clear as early as 1752, and the rule was reaffirmed by the
Privy Council in Berthiaume v. Dastous where a marriage performed by a French cure of two
French Canadians in France in the mistaken belief that it had been preceded by a civil
ceremony as required by French law was held invalid.
In Taczanowska v. Taczanowski the Court of Appeal was prepared to apply renvoi and
to hold that, if a marriage was not celebrated in compliance with the lex loci celebrationis,
but that law would hold the marriage valid if it accorded with the parties’ personal law, it
would be valid here.
The lex loci celebrationis also determines whether a marriage can be celebrated by
proxy. In Apt v. Apt a ceremony performed in Argentina between a man who was there
and a woman in England who was represented there was recognised since
representation by proxy was permitted by Argentine, though not by English, law.
Indeed, a marriage may be recognised even though the lex loci celebrationis does
not require the presence of either party personally or by proxy, if the entertaining case,
McCabe v. McCabe is correct.
H was domiciled in the Irish Republic, W in Ghana. They met in London. W became
pregnant by H, had an abortion and became pregnant by him again. They lived
together in England. W’s great uncle Mark, who was visiting England from Ghana,
suggested H and W should marry according to the custom of the Akan, a people in
Ghana. Over lunch they agreed. Uncle Mark told H that he had to provide a bottle of
schnapps and £100 as ‘aseda’ (earnest). H gave him £100 and a bottle of gin (which
would do instead of schnapps), and Uncle Mark took these back to Ghana, where a
ceremony was held at W’s father’s house. H and W were neither present nor
represented (nor was Uncle Mark, through illness). The ceremony was performed by
W’s Uncle Nelson. Eight members of W’s family were there. W’s father and the rest
of the gathering assented to the marriage. They opened the bottle of gin and all drank
some of it from a glass. They changed the £100 into Ghanaian cedis and shared some
of them out; the rest of the cedis (though not the gin) were taken and given to other
members of the family.
W now petitioned for a divorce and H argued that there had never been a valid
marriage. The Court of Appeal held that the marriage was valid since it was valid by Akan
law, which did not require presence personally or by proxy of the parties and which
required H’s consent as given by him presenting the money and the gin. The difficulty
with this conclusion is that the court's judgment is entirely concerned with its assessment
of the (very distinguished) expert evidence of Akan law as the lex loci celebrationis. It did
not consider whether the locus celebrationis was Ghana (under whose law, one expert said,
no ceremony was necessary at all or whether it was England, where H and W consented
to marry. This, the relevant point of private international law, does not seem to have
been argued.
By what is generally regarded as an unsatisfactory exercise in classification, the
English courts have treated the question of whether parental consent is required as a
matter of formal validity and not of capacity to marry. In Simonin v. Mallac it was held
that a provision of French law which required a person under a certain age to ask his
parents’ permission to marry, though not complied with, did not render void a ceremony
celebrated in England. In fact it probably did not do so under French law either. But in
Ogden v. Ogden where again the ceremony had taken place here, a different provision of
French law requiring parental consent and rendering the child incapable of marrying
without it was regarded in the same light and was held to go only to formalities. Thus it
was ignored and the marriage held valid. It should be emphasised that the English courts
take the view that the English requirement of parental consent to the marriage of a person
under eighteen is a matter of form, so that a marriage abroad without such consent is valid
if the lex loci celebrationis does not require it to be obtained.
B_________________________________________________
Although the parties have gone through a ceremony which is formally valid by the lex loci
celebrationis and so valid in England, the marriage may nevertheless be void if the man and
woman do not have legal capacity to marry each other. For example, one or both may be under
age, or be already married to a third person, or they may be within the prohibited degrees of
relationship (consanguinity). As we have seen, lack of parental consent has been regarded by the
English courts as a matter of form and not of capacity, but if a requirement of parental consent
under some foreign law were to be classified as being a rule affecting capacity, non-compliance
with it might also render a marriage void.
What law governs capacity to marry has been the subject of considerable academic
argument and, recently, of differences of judicial opinion. Two rival choice of law rules have been
advocated: (1) the dual or antenuptial domicile test, according to which if both parties have capacity
to marry each other by the laws of their domiciles at the time of the ceremony, the marriage is
valid, but (generally speaking) it is invalid if by either or both of these laws they have no such
capacity (2) the law of the intended matrimonial home, that is, the country where, at the time
of the ceremony, the parties intend to, and after the ceremony do, set up home. This was
advocated by the late Professor Cheshire.
These two tests are in fact consistent with the facts and to some extent with the
decisions in several of the decided cases, but it is now generally thought that the dual domicile
test is the correct one, and some decisions proceed upon the basis that it is. However, some judges
have recently adopted a test of ‘the law of the country with which the marriage has a real
and substantial connection', apparently in place of the intended matrimonial home
doctrine.
C_____________________________________________________
It is clear that factors which may vitiate the parties' consent to marry each other,
as opposed to the method by which they give their consent, are related to the essential,
rather than the formal, validity of marriage. It is also now clear that, under English
domestic law, a marriage celebrated after the Matrimonial Causes Act 1973, which is
vitiated by lack of consent, is voidable only, rather than void. The defect of lack of consent
includes the presence of duress or mistake as to the identity of the other party or the nature
of the ceremony, and (in English law) mistake as to certain attributes of the other party.
These are ignorance that at the time of the marriage he or she was suffering from mental
disorder or venereal disease or, in the case of a woman, that she was pregnant by some
other man.
The personal law, as opposed to the lex loci celebrationis, should govern this question.
In some cases the marriages were celebrated abroad where the parties were domiciled and
English law was applied, but these are inconclusive since there appears to have been no
evidence of the foreign law.
The only reasonably clear case is Szechter v. Szechter
A Polish professor married his secretary to get her out of prison so she might escape to the
West where she could obtain urgently needed medical treatment. He and his wife were
domiciled in Poland. He divorced her and ‘married' his secretary in prison. But they did
not really mean any of this, and the whole thing was a sham; they only did it all because
they believed the secretary would die if she stayed in goal.
Regarding this as ‘duress’ Sir Jocelyn Simon P held that the marriage was void and granted a
decree. This was because it was void by Polish law and Polish law as the parties’ personal law
applied to the issue. He expressly approved Dicey and Morris's Conflict of Laws: ‘no marriage is
valid if, by the law of either party’s domicile one party does not consent to marry the other.’
This is fair enough if the parties are, as in Szechter v. Szechter, domiciled in the same
country. If they are not, it could mean that the marriage might be invalid, though by the law of the
party who allegedly lacks consent it is valid. So now Dicey and Morris adopt this view expressed in
another leading work and opine that the marriage should only be invalid if it is so by the law of the
domicile of the party who allegedly lacks consent.
D______________________________________________________________
A marriage will be voidable by English law if it is not consummated, either because one
party cannot consummate it by reason of impotence or because he or she will not do so (wilful
refusal).
Impotence is a fairly common ground for nullity in legal systems generally. Wilful refusal
to consummate is not; sometimes it is a ground for divorce, and sometimes it gives no right to
matrimonial relief at all.
If the choice of law rule governing consent is now reasonably clear, that governing
physical incapacity most certainly is not. Until 1947 no other law than English law was applied.
In the inconclusive case of Robert v. Robert,” in that year, Barnard J expressed preference for the
lex 1oci celebrations. But this cannot be correct; the matter is not one of forms, as was pointed
out in de Reneville v.de Reneville where the law of the husband’s domicile or that of the intended
matrimonial domicile was favoured. But that case is equally inconclusive. Moreover, it was not
concerned with choice of law but with jurisdiction.
In Ponticelli v.Ponticelli, Sachs J held that English law, preferably as the law of the
husband’s domicile at the time of the marriage (it was also the lex fori), governed the issue. This
preference for the law of the husband’s domicile at the time of the marriage (which would also
usually be both his and his wife’s domicile after the marriage) presents a difficulty nowadays
since a wife can have a domicile different from that of her husband.
It has been suggested that the law applicable should be that of the petitioner’s domicile. It
has further been suggested that the problem could be made to disappear if wilful refusal (which
is the only postnuptial defect which affords grounds for nullity decree) were to be made a ground
for divorce.
Language Work
Exercise 4. Suggest Russian equivalents of the following word combinations in the text.
the ground of invalidity of marriage; to comply with the requisite formalities; to consent
freely and knowingly; to accord with the parties’ personal law; in the mistaken belief;
expert evidence; to be the subject of considerable academic argument; to render void; to be
consistent with the facts; apparently in place of the intended matrimonial home doctrine; the
presence of duress; by reason of; to afford grounds for a nullity decree
Exercise 5. Find English equivalents of the following word combinations in the text.
лицо, не достигшее определенного возраста; заключать брак (3); бракосочетание по
церковному обряду; Тайный совет; повторно подтвердить; в том смысле, что;
лишать (брак) юридической силы; признать (брак) действительным; право на
пособие одному из супругов; степень родства, запрещенная законом; закон
совместного места жительства в соответствии с намерениями супругов; основание
для признания брака ничтожным; неудачный пример практического применения
квалификации; получить согласие родителей; невыполнение требования; критерий,
учитывающий домициль вступающих в брак; гражданская церемония,
соответствующая требованиям французского права
Exercise 6. Read the following text. Choose the best preposition to fill each numbered gap
from A, B, C or D below. Translate the text into Russian.
Legitimacy and Legitimation
Legitimacy means the status which a child acquires 1…. the time of birth; it denotes a legal
relationship with his father. Legitimation means that an illegitimate child becomes
legitimate 2…. reason of an event subsequent 3…. his birth. In English law the only event
which has this consequence is the subsequent marriage of his parents; in other systems
other events may have it, such as recognition 4…. the father that the child is his, or the
enactment of a statute.
All persons who are born in what English law regards 5…. lawful wedlock, or
conceived therein, are prima facie legitimate in England. Difficulty arises, however, if a
child is not born in what English law treats as lawful wedlock, but is legitimate by some
other system of law.
Most of the cases in the English conflict of laws in which the question 6…. whether
a child was legitimate, legitimated or adopted arose concerned succession 7…. property.
This is the most important, but not the only, area 8…. which the question is involved. But
the question of whether a child is legitimate, legitimated or adopted may only be a
preliminary issue; if he is, the law governing the succession should govern the issue of
whether he can succeed, or whether his father or mother or other relatives can succeed.
It should be noted that Family Law Reform Act 1987 seeks to remove as far as
possible the disadvantages in English law 9…. illegitimacy so far as they affect the
illegitimate child.
In many cases concerning nullity of marriage 10…. want of legal capacity to marry
the legitimacy of children of the union and their right of succession to property was the real
point 11…. issue. In most of these, either both or one of the parties 12…. the marriage were
or was domiciled here and had no capacity to marry by English law, but married abroad.
The marriage was invalid by English law and the ‘children’ could not succeed.
1.
A during
B at
C before
D on
2.
A for
B out
C by
D under
3.
A at
B upon
C to
D with
4.
A by
B of
C with
D as
5.
A to
B with
C as
D for
6.
A to
B of
C on
D about
7.
A of
B to
C in
D over
8.
A to
B with
C by
D in
9.
A of
B on
C about
D for
10.
A with
B without
C from
D for
11.
A on
B at
C of
D under
12.
A of
B by
C in
D to
Exercise 7. Analyse the grammatical function of the words in bold and translate the
sentences below into Russian.
1. No rule of the conflict of laws is clearer or longer established than the one which lays
down that these matters are regulated by the lex loci celebrationis, which reflects the rule
locus regit actum.
2. The law of the intended matrimonial home, that is, the country where, at the time of the
ceremony, the parties intend to, and after the ceremony do, set up home.
3. It should be emphasised that the English courts take the view that the English
requirement of parental consent to the marriage of a person under eighteen is a
matter of form, so that a marriage abroad without such consent is valid if the lex loci
celebrationis does not require it to be obtained.
4. By what is generally regarded as an unsatisfactory exercise in classification, the
English courts have treated the question of whether parental consent is required as
a matter of formal validity and not of capacity.
5. Since there appears to have been no evidence of the foreign law, English law was
applied.
6. In some cases the marriages were celebrated abroad where the parties were
domiciled and English law was applied, but these are inconclusive.
7. If the choice of law rule governing consent is now reasonably clear, that governing
physical incapacity most certainly is not.
Exercise 8. Render the following text into English. Use the speech connectors below and
the relevant vocabulary from the text.
as opposed to □ as is known □ as was provided for earlier □
it should be emphasized □ it follows from what has been said above □
as regards □ apart from
Вопросы заключения и расторжения брака
Как известно, Семейный кодекс РФ 1995 г., вступивший в силу с 1 марта 1996
г., внес существенные изменения в коллизионные нормы, регулирующие
заключения брака на территории России.
Как предусматривалось ранее, заключение иностранных браков на территории
России регулировалось только российским правом.
В ныне действующем законодательстве, в противоположность Кодексу о
браке и семье 1969 г., закрепляется следующий принцип: условия заключения брака
на территории Российской Федерации определяются для каждого из лиц,
вступающих в брак, законодательством государства, гражданином которого является
лицо в момент заключения брака.
Помимо ранее действовавших норм, закрепляется также норма о соблюдении
требований
российского
законодательства
в
отношении
обстоятельств,
препятствующих заключению брака. Эти обстоятельства в соответствии со ст. 14 СК
включают невозможность заключения брака между лицами:
 имеющими определенную степень родства;
 усыновителями и усыновленными;
 одно из которых уже состоит в другом браке или
 признано судом недееспособным вследствие психического расстройства.
Следует подчеркнуть, российское законодательство содержит специальную
норму о признании браков, заключенных за пределами территории Российской
Федерации. Требованием, необходимым для признания таких браков, является
соблюдение законодательства места регистрации и, как указывалось выше,
отсутствие обстоятельств, препятствующих заключению брака.
Из сказанного выше следует, что иностранные граждане, заключающие
браки за пределами территории России, должны выполнить только одно условие
для признания такого брака действительным - это соблюдение законодательства
государства места регистрации.
Что касается коллизионных правил при расторжении брака, то в Семейном
кодексе РФ 1995 г. предусмотрены следующие нормы.
По общему правилу, расторжение брака, в надлежащем порядке совершенное
в иностранном государстве, согласно законодательству этого государства,
признается действительным в Российской Федерации.
В случае если расторжение
брака происходит на территории России, то будет применяться законодательство
Российской Федерации.
Analytical Reading
Exercise 9. Answer the questions on the text.
1.
2.
3.
4.
5.
6.
7.
8.
What has changed in the choice of law rules for marriage since 1860?
What marriage is recognized as valid by English law?
Why should a line be drawn between the formal and essential validity of marriage?
What factors may lead to nullity of marriage by English law?
On what grounds may the parties to a marriage be denied marital capacity?
What is the author’s view of the court’s decision in McCabe v. McCabe?
What marriage may be rendered voidable by English law?
What factors may vitiate the parties’ consent to marry each other and what law
determines this issue?
9. What choice of law rules for marriage are discussed in the text and which of them
are the subject of academic argument and judicial disagreement?
10. What is the role of the parties’ personal law in deciding the issues of the validity of
marriage?
11. What decided cases considered by the author are an example of the conflict of
characterization in different legal systems?
12. What aim does the author have in mind when commenting on the cases of Ponticelli
v. Ponticelli, Robert v. Robert and de Reneville v. de Reneville?
13. Do you know what factors may lead to the invalidity of marriage by Russian law
and how they differ from the impediments to marriage considered by the author?
Summarizing
Exercise 10. Analyse the logical development of information in each section of the text to
identify the most important points and express them in two or three sentences of your own
in writing.
Exercise 11. Use your notes from the exercises above to write a plan of the text.
Exercise 12. Write a summary of the relevant choice of law rules which govern the validity
of marriage as to formalities, legal capacity, consent of the parties and physical incapacity.
Use your analysis of the logical organization of the text as a reference point for structuring
your summary.
FAMILY LAW
Part II
Legal Terms
1.
polygamy
полигамия, многобрачие
3.
polygamous marriage
contract a marriage
syn. enter into a marriage
outlaw
4.
bastard
5.
customary law
полигамный брак
заключить брачный договор,
вступить в брак
объявить вне закона, лишить
юридической силы
незаконнорожденный, внебрачный
ребенок
обычное право
6.
monogamy
моногамия, единобрачие
2.
monogamous marriage
7.
incident
моногамный брак
право или обязанность, связанные
с другим правом
8.
concubine
concubinage
9.
bigamy
внебрачный сожитель(ница)
внебрачное сожительство
бигамия, двоебрачие
10. polyandrous marriage
полиандрия, многомужество
11. renounce a faith
отказаться от религиозных
убеждений
12. Divorce Court
суд по бракоразводным делам
13. legal status
правовой статус
14. cross-petition
подать встречное заявление в суд
15. grant a decree (of nullity)
вынести судебное решение о
признании брака ничтожным
16. have retrospective effect
иметь обратную силу
17. bar
правовое препятствие, правовой
запрет
18. Matrimonial Causes Act
парламентский акт, регулирующий
дела о разводе
19. Law Commission
Комиссия Парламента по пересмотру
действующего права
20. Private International Law
Акт Парламента о международном
(Miscellaneous Provisions) Act частном праве (смешанные положения)
Other Vocabulary Items
1.
dissenting minister
зд. священник, отказавшийся от веры мормонов и
обращенный в протестантство
2.
Mormon community
община мормонов
3.
Christendom
христианский мир
4.
get the benefit of the doubt
оправдать за недостаточностью улик
5.
inception
начало
6.
misapprehension
неправильное представление
act under a misapprehension
заблуждаться
7.
propound
предлагать на обсуждение
8.
missionary
миссионер, проповедник
9.
adultery
адюльтер, прелюбодеяние
10. muddy the waters
вносить путаницу, излишне усложнять
Reading Comprehension
Exercise 1. Read the text to decide which of the following subheadings reflect the
main topics of the text (A-F) and match them with the sections (1-5) they
summarize.
A.
Recognition of polygamous marriages by English law
B.
Capacity to contract a polygamous marriage
C.
Matrimonial relief in respect of polygamous marriages
D.
Characterisation problems in polygamous marriages
E.
General concept of marriage in English law
F.
Changes in the character of a marriage
Text 2. Polygamous Marriages
(Abridged from Conflict of Laws by J. G. Collier)
1
At one time polygamous marriages, that is, marriages in which husbands may have
more than one wife at the same time, caused considerable difficulties in the conflict of laws.
For various reasons the difficulties have been considerably reduced in recent years. One
reason is that polygamy has been reduced by being outlawed in several countries in which it
was formerly practiced.
English law regards marriage as being a ‘voluntary union for life of one man and one
woman, to the exclusion of all others’ since that is how marriage is ‘understood in
Christendom’. These words were employed by Lord Penzance in Hyde v. Hyde in 1866:
An Englishman joined the Mormon community in Utah and
contracted a marriage which, by the Mormon doctrine, was potentially
polygamous. He subsequently renounced and preached against that faith,
became a missionary in the Sandwich Islands and then a dissenting
minister in Derby. Having resumed a domicile in England he petitioned
for divorce, because the lady had married another Mormon.
This was refused because his Mormon union was not a marriage as understood by
the Divorce Court, which could not, therefore, give matrimonial relief (in this case a divorce
decree) in respect of it.
The law appears to have drawn back from regarding all polygamous unions as not
being marriages, since the consequence would have been that a large portion of Queen
Victoria’s subjects would have been bastards. So this attitude prevailed only in the Divorce
Courts and signified only that a polygamous marriage was a marriage in respect of which
matrimonial relief was not available.
One other point is nowadays obvious: the words ‘for life’ must be read as
‘potentially for life’, otherwise few marriages would exist, in view of the ease and
popularity of divorce.
Finally, a marriage is polygamous though it is only potentially so and though the
husband never takes another wife during the existence of his marriage.
2
What law determines whether a marriage is monogamous or polygamous? The rule
is generally thought to be that this falls to be decided according to the law of the place
where it was celebrated, and by its nature and its incidents under that law. But even though
that law would not call it polygamous, it is so if in the eyes of English law its incidents give
it a polygamous character. Thus in Lee v. Lau under local Hong Kong Chinese customary
law a man was not allowed to take another wife, but he could have a concubine. During the
subsistence of his marriage concubinage was regarded as a legal status. The English court
regarded this as being, in reality, a polygamous marriage.
It has sometimes been suggested that the personal law should decide this question,
but this seems quite inconsistent with the decisions in several cases. In Hussain v. Hussain
in 1982 however, to the surprise of everyone the Court of Appeal held that the question
would, if the man were domiciled in England so that the Matrimonial Causes Act 1973
governed his capacity to contract a polygamous marriage, be decided to some extent by the
Act’s provisions. It is clear that a marriage in England is monogamous if it is celebrated in
accordance with the Marriage Act 1949 wherever the parties are domiciled, and that a
‘ceremony’ which takes place in England which, were it celebrated abroad, would produce
a polygamous marriage, but is not celebrated in accordance with the Marriage Act, is void.
3
If the marriage was monogamous at its inception it remains so even though it could,
in certain circumstances, become polygamous later. The marriage gets the benefit of the
doubt, so to speak, since a marriage which is potentially polygamous at its inception can,
provided it is not actually polygamous, become monogamous by changes in circumstances.
These include conversion to a faith which allows only monogamy, a change in the law of
the country where the marriage was celebrated so as to prohibit polygamy, or if that law so
provides, by the birth of a child. A change to a monogamous character may also result from
a change of domicile to a country which does not permit polygamy. This was decided by
the Court of Appeal in Ali v. Ali (1968). (Had this been known in 1866 the decision in Hyde
v. Hyde & Woodmansee must have been different.)
H and W were Muslims domiciled in India and married polygamously. H
(and, therefore, W) acquired an English domicile in 1961. H then
petitioned for a divorce on the ground of W’s desertion in 1959. She crosspetitioned on the ground of H’s adultery since 1964.
It was held that their potentially polygamous marriage had become monogamous,
but only in 1961. Therefore, the court could not (at that time) grant H a decree, but could
and would grant one to W.
Two comments may be made on this case. The result would presumably have been
different if, before 1961, the man had married a second wife, since his change of domicile
to England could hardly have divested him of one or both of his wives. It could have been
the same, however, if he had two wives before 1961, but one had died or been divorced
before 1961or one had died after 1961.
4
Capacity to contract a polygamous marriage has become a rather confused area of
the law, quite unnecessarily. Left to oneself one would think that this is a matter governed
by the same rule as that which governs capacity to contract any marriage, which is
generally supposed to be the laws of the ante-nuptial domiciles of the parties (the ‘dual
domicile’ test). Thus, if both or one of the parties to a potentially polygamous marriage
which is celebrated abroad be domiciled in England, the marriage should be void. But
where capacity to marry is concerned some judges seem almost perversely to take delight in
muddying the waters.
Thus in Radwan v. Radwan (No. 2) Gumming-Bruce J held that capacity to contract
a polygamous marriage is governed by the law of the intended matrimonial home which, in
that case, was Egypt and the fact that the woman was domiciled here was irrelevant. His
Lordship, when informed that Parliament had recently proceeded upon the assumption that
the orthodox rule governed, replied that Parliament had acted under a misapprehension!
The decision is no longer important, since Parliament’s intentions have been enacted
as law. According to the Matrimonial Causes Act 1973 (section 11(d)) 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. For these
purposes a marriage may be polygamous although at its inception neither party has any
spouse additional to the other.
That, one would have thought, would be that. But another rule for capacity,
employing this provision in a way no one had ever thought of before, was propounded in
Hussain v. Husain. If a Pakistani man was domiciled here and went through a ceremony in
Pakistan with a lady domiciled there, the marriage was not polygamous after all. He could
not enter into a polygamous marriage and since the lady was not allowed by Pakistani law
to contract a polyandrous marriage, the marriage must be monogamous.
The Law Commission suggested that the law should be changed so as to restrict
incapacity to actually polygamous marriages.
This proposal was enacted in the Private International Law (Miscellaneous
Provisions) Act 1995, Part II so that both men and women domiciled in England have
capacity to enter into a marriage which, though it is polygamous in form, is in fact
monogamous. Section 11 of the Matrimonial Causes Act 1973 is amended so as to apply
only to actually polygamous marriages and section 5 (1) of the 1995 Act expressly provides
that
A marriage entered into outside England and Wales between parties neither of
whom is already married is not void on the ground that it is entered into under a law which
permits polygamy and that either party is domiciled in England and Wales.
By section 6 (1) these changes have retrospective effect so as to validate earlier
marriages but not if a party to such a marriage has already entered into a marriage which
was valid when celebrated or which is validated by the 1995 Act itself.
5
The significance to England law of the existence of polygamy is nowadays much
reduced since the courts will recognize a polygamous union as a marriage for most
purposes, unless, that is, there is some strong reason why they should not. Thus the courts
are no longer precluded from granting matrimonial relief in respect of such a union; and a
polygamous marriage is a bar to a subsequent monogamous marriage here, which will,
therefore, be void for bigamy. Whether the man could be convicted of the crime of bigamy
is not clear. In one case it was held that he could not, but though this case was overruled by
the Court of Appeal it was only on the ground that the first marriage had in fact become
monogamous under the law of Kenya where it had been celebrated.
For certain statutory purposes, for instance, under the provisions of the Social
Security and Benefits Act, on condition that the polygamous marriage is only potentially
polygamous and that the husband has in fact only one wife, the marriage is recognized as if
it were monogamous.
It appears that a child of a polygamous marriage may be regarded as legitimate and
is entitled to succeed to property on intestacy as can also the surviving wife of a
polygamous marriage on the death of her husband.
Summarizing
Exercise 2. Read the whole text again and answer the following questions to see exactly
how the text is organized and what important information each section of the text contains.
1.
2.
3.
4.
5.
6.
What is marriage in the eyes of English law?
What marriage does English law consider polygamous?
What view did the English court take in respect of polygamous unions in the past?
Why did the court refuse to dissolve Mr. Hyde’s marriage?
What marriage is potentially polygamous?
What has changed in the English courts’ approach to polygamous marriages in
recent years?
7. Why is it difficult to state with certainty what law determines whether a marriage is
monogamous or polygamous?
8. What other choice of law rules may be chosen to govern this issue?
9. What changes in circumstances may affect the character of marriage and how?
10. Why was the husband’s petition for a divorce decree in Ali v. Ali denied?
11. What law is generally chosen to govern capacity to contract a polygamous marriage?
12. What changes respecting capacity to contract a polygamous marriage were recommended
by the Law Commission and for what reason?
13. What rule applies to the recognition of polygamous marriages?
14. How can the recognition of polygamous marriages by English law affect the rights of the
parties to such unions?
Exercise 3. On the basis of your answers to Exercises 1 and 2 write a detailed plan of the
text.
Exercise 4. Write a summary of the text. Make sure that your writing is divided into three
distinct parts: 1) an introduction presenting the author’s view on the concept of marriage in
general and polygamous unions in particular; 2) a discussion of the rules of English law for
polygamous marriages and the recent legislative amendments to the law governing
recognition and the grant of matrimonial relief in respect of such unions; 3) a conclusion.
Use speech clichés where appropriate.
ANSWER KEY
Unit 1.
DOMICILE. Part I
Exercise 2.
i. Sample answer. Domicile may affect matters of marriage, divorce and inheritance of a
deceased person's property. In some countries the place of domicile may affect tax liability
This is because, under the rules of private international law courts may refer to the law of
the place of domicile of a person in certain circumstances.
ii. Sample answer. Permanent residence in a particular jurisdiction, sufficient links with a
certain jurisdiction, physical presence in a certain locality and a displayed intention to
acquire domicile there.
Exercise 4.
i.
ii.
What is the importance of the term “domicile”? Domicile is the "legal tool" employed
to attach a person to a particular locality (legal system) for some particular purpose,
or the legal conclusion that states that there is a sufficient "contact" or relationship
between the person and the particular state or country so that its laws may be applied
to the person's affairs or its courts may hold him subject to its jurisdiction.
What types of domicile are mentioned in this part of the Text? Domicile of origin,
and domicile of choice.
Exercise 5.
1. Domicile states that there is a sufficient "contact" or relationship between the person and
the particular state or country. - TRUE
2. Each country consists of one law district. – FALSE. A law district coincides with a state
such as France, Italy or Germany if that state possesses only one system of law. But this
is not so if the state is a federal state or one which, like the United Kingdom, contains
several different districts, each having its own legal system.
3. Inability of anyone to be without a domicile makes domicile preferable as a connecting
factor for determining the personal law to any other. - TRUE
4. No one can have more than one domicile at the same time; he can, however, have more
than one residence, home or nationality. - TRUE
5. In resolving the issue of domicile, the governing law is that of the state where the suit is
brought. - TRUE
6. For choice-of-law problems the party's domicile may be deemed the least important
"contact." – FALSE. For choice-of-law problems, where the issue is the law to be applied
to a particular transaction that has "contacts" with various states, the party's domicile
may be deemed the most important "contact."
Exercise 6.
attach a person to a particular locality закрепить лицо за определенной юрисдикцией
be applied to the person’s affairs применяться к частным делам лица
intend to remain indefinitely намереваться остаться на неопределенный срок
far too simplistic and somewhat misleading слишком упрощенный и отчасти вводящий в
заблуждение
preferable as a connecting factor более предпочтительный как коллизионная привязка
be clearly enunciated быть четко сформулированным
sufficient to establish residence достаточный для установления постоянного места
жительства
forfeit domicile лишать домициля
committed to an institution помещенный в специальное учреждение
retain one’s civilian domicile сохранять гражданский домицилий
exercise the governing power пользоваться регулирующим правом (полномочием), правом
регулирования (управления)
legally capable of obtaining one’s own domicile дееспособный для получения собственного
домицилия
choose voluntarily выбирать добровольно
determined by one’s words and conduct определяемый (устанавливаемый) словами и
поведением
unless emancipated до тех пор пока не (если не) освобожден от родительской опеки
lack minimal competency не иметь минимальной право-/дееспособности
Exercise 7. Read the text and suggest English equivalents of the following word partnerships.
правовой инструмент legal tool
юридическое заключение legal conclusion
остаться на неопределенное время remain indefinitely
вводящий в заблуждение misleading
упрощать судебные задачи simplify judicial tasks
в соответствии с современным подходом under the modern approach
возобновляться revive
делать предпочтительным make preferable
установить место проживания establish residence
использовать взаимозаменяемо use interchangeably
в соответствии с давно существующей точкой зрения under the long-standing view
находящийся в местах лишения свободы imprisoned
домициль в силу закона domicile by operation of law
в результате усыновления as a result of adoption
намеренный (зд. обдуманный) выбор intentional selection
право- и/или дееспособный legally capable
признанный по суду недееспособным adjudicate an incompetent
опека, опекунство (одного из родителей) custody
относительно небольшие умственные способности relatively little mental capacity
избегать проблем с обратной отсылкой avoid renvoi problems
наследование движимого имущества inheritance of chattels
Exercise 8.
1 – C; 2 – A; 3 - B
1. domicile
2. in personam jurisdiction
3. domicile
4. residence
5. domicile
Exercise 9.
1 - B (political);
2 - A (naturalized);
3 - C (deported);
4 - A (deportation);
5-B
(evidence); 6 - A (to acquire); 7 - C (a national); 8 - B (to sever); 9 - A (an alien); 10 B (cut short); 11 - D (illegal); 12 - C (public policy)
Exercise 10.
NB: Выделенные жирным шрифтом речевые коннекторы факультативны и могут быть
заменены любыми другими, подходящими по смыслу.
1. ..................., домицилий – это юридическое заключение, которое устанавливает
наличие достаточной связи между определенным лицом и государством, законы
которого могут применяться к делам этого лица. It is pointed out that domicile is the
legal conclusion that states that there is a sufficient "contact" or relationship between the
person and the particular state or country so that its laws may be applied to the person's
affairs or its courts may hold him subject to its jurisdiction.
2. Термин «домицилий» имеет более широкое значение, чем физическое
(фактическое) присутствие. Термин «место жительства», …………, означает
фактическое присутствие в стране. ……………. эти термины часто используются
взаимозаменяемо. The term "domicile" signifies more than mere physical presence.
"Residence", on the other hand, is defined as mere physical presence within the state.
Despite this distinction, the terms "residence" and "domicile" are often used
interchangeably.
3. ……………. при рождении ребенку присваивается домицилий родителей: отца –
если ребенок рожден в браке, и матери – если ребенок рожден вне брака. It is
important that at birth a child is assigned the domicile of the parents—of the father if the
child is legitimate, of the mother if the child is illegitimate.
4. ................... дееспособное лицо может приобрести домицилий по выбору, если он
фактически присутствует на новом месте и выражает намерение остаться в этом
месте на неопределенное время. It bears saying that a domicile of choice may be
acquired wherever a person legally capable of obtaining his own domicile establishes (1)
some physical presence in a new location, (2) with the unconditional intent to remain
there indefinitely.
5. …………… домицилий может быть присвоен независимо от намерения лица в
соответствии с законом. In addition to that domicile may arise irrespective of intention
by operation of law.
6. ……………. при разрешении вопросов, связанных с домицилием, применимым
правом является закон суда (право государства, в котором подан иск). It is
prescribed by law that in resolving the issue of domicile, the governing law is that of the
forum (the state in which the suit is brought).
7. ……………. при решении проблем, связанных с выбором применимого права,
домицилий может признаваться самой существенной «связью». It is emphasized
that for choice-of-law problems, the party's domicile may be deemed the most important
"contact."
Exercise 12.
1. What does the term “domicile” signify? Domicile is the "legal tool" employed to attach a
person to a particular locality (legal system) for some particular purpose, or the legal
conclusion that states that there is a sufficient "contact" or relationship between the
person and the particular state or country so that its laws may be applied to the person's
affairs or its courts may hold him subject to its jurisdiction.
2. Does domicile always coincide with the person’s permanent home?No. The view that a
person’s domicile is what he regards as his permanent home is far too simplistic and,
indeed, somewhat misleading.
3. What is the difference between the traditional and the modern approaches concerning
domicile? Traditionally, the concept of domicile was considered a useful legal tool in
establishing a connection between a person and state since it ensured predictability of
results and simplified judicial tasks. Under the modern approach, a person may very well
be considered domiciled in different states for different purposes at the same time.
4. What does “domiciled in a law district” mean? A person must be domiciled in a “law
district”. A law district coincides with a state such as France, Italy or Germany if that
state possesses only one system of law. But this is not so if the state is a federal state or
one which, like the United Kingdom, contains several different districts, each having its
own legal system.
5. Can a person be without a domicile? No. No person can be without a domicile. A
domicile is ascribed to a person by law as his domicile of origin or of dependence. He
will keep such a domicile unless and until he acquires another by choice, and if he
abandons a domicile of choice his domicile of origin will revive and be his domicile
unless and until he acquires another domicile of choice.
6. What feature of domicile makes domicile preferable as a connecting factor for
determining the personal law? Inability of anyone to be without a domicile makes
domicile preferable as a connecting factor for determining the personal law to any other,
since a person can be without a residence, a home or a nationality.
7. What are the differences between the terms “domicile” and “residence”? The term
"domicile" signifies more than mere physical presence; it is an individual's "legal home."
"Residence", on the other hand, is defined as mere physical presence within the state.
"Residence" has no requirement of intent; i.e., mere physical presence is sufficient to
establish residence.
8. What are the three types of domicile? Domicile of origin, domicile of choice and domicile
of dependence.
9. Which type of domicile is a person assigned at birth? At birth a person is assigned a
domicile of origin.
10. Why is the domicile of origin more tenacious than the domicile of choice? A domicile of
choice is more difficult to prove it has been abandoned.
11. When may a domicile of choice be acquired? A domicile of choice may be acquired
wherever a person legally capable of obtaining his own domicile establishes (1) some
physical presence in a new location, (2) with the unconditional intent to remain there
indefinitely.
12. What does a person need to do to change his domicile? To change domicile, a person
need only exhibit sufficient understanding to voluntarily choose a new residence.
13. Which types of domiciles arise irrespective of intention by operation of law? Domicile of
origin and domicile of dependence arise irrespective of intention by operation of law.
14. What law is the governing law in resolving the issue of domicile? In resolving the issue
of domicile, the governing law is that of the forum (the state in which the suit is brought).
15. Why is domicile significant for jurisdictional purposes? As far as jurisdictional basis is
concerned, domicile is an accepted basis for in personam jurisdiction over an individual
and is also the principal basis for jurisdiction in matters concerning personal status—
e.g., divorce.
16. Why is the issue of domicile significant for choice-of-law purposes? For choice-of-law
problems, where the issue is the law to be applied to a particular transaction that has
"contacts" with various states, the party's domicile may be deemed the most important
"contact."
DOMICILE. Part II
Exercise 3.
1. Under what conditions can a person acquire his domicile since 1 January 1874? A person
can, since 1 January 1974, acquire his own domicile when he attains his sixteenth
birthday or, if he is below the age, upon marriage.
2. When does the domicile of dependence of a legitimate minor change? The domicile of
dependence of a legitimate minor changes automatically if his father changes his own
domicile.
3. May a minor after his father’s death follow his mother’s domicile? Yes, the child may
after his father’s death follow the domicile of his mother. But if his mother changes her
domicile, the minor’s domicile does not necessary alter.
4. When does the mother have power to change the minor’s domicile? The mother has
power to change the minor’s domicile along with her own if she does not do it
fraudulently, that is, for a purpose other than for the benefit or welfare of the minor (not,
for example, to acquire better rights of succession to the child’s property).
5. Which domicile does an illegitimate child acquire? The domicile of origin of an
illegitimate child is, as we have seen, that of his mother when he is born.
6. What domicile did a married woman acquire until 31 December 1973? Until 31
December 1973, a married woman automatically acquired the domicile of her husband.
7. What feature of domicile was abolished as from 1 January 1974? The unity of domicile of
husband and wife was abolished as from 1 January 1974.
8. What domicile does an adopted child acquire?
An adopted child takes the adoptive
parents’ (presumably the father’s) domicile of origin.
9. What legal issues did the Domicile and Matrimonial Proceedings Act 1973 deal with?
The Domicile and Matrimonial Proceedings Act 1973 concerned the domicile of a minor
whose parents had been divorced before 1 January 1974 or after that date were
separated, and lived in different countries and acquired separate domiciles, and who
lived exclusively with the mother.
10. What domicile of dependence does the minor acquire under the Act 1973, if his parents
are alive but live apart? The Act provides that where the parents of a child, including an
adopted child under sixteen, are alive but live apart, the child’s domicile of dependence
is that of his father. But if he has a home with his mother and none with his father, his
domicile is that of his mother.
11. Does a child who has a home with his mother always retain her domicile until he is
sixteen? Once a child acquires his mother’s domicile he retains it until he is sixteen even
if he ceases to have a home with her, unless he has at any time a home with his father.
12. What problems arise out of provisions of the Domicile and Matrimonial Proceedings Act
1973? First, the statutory rules appear to apply only to the domicile of dependence since
they envisage the child’s domicile of origin being that of his father. Second, suppose the
child acquires a domicile which his mother under the Act, then goes to live with his father
on 1 February, and his father dies on 2 February. He reacquires the domicile of his
father. Thereafter, the statutory rule ceases to govern, and the common law rules,
including Re Beaumont apply. Moreover, since the Act is concerned with a situation
where the parents are alive, it may be that Re Beaumont will apply after the father dies,
even though the child had not reacquired a home with him.
13. Can the domicile of a mentally ill person be changed by his own act? Why? The domicile
of a mentally disordered person cannot be changed by his own act since he is unable to
form the requisite intention, and thus he retains the domicile he had when he became
insane.
14. How can the domicile of dependence be altered if a person becomes insane before he
attains majority? If a person becomes insane during his minority his domicile of
dependence can be changed by an alteration of the domicile of the parent upon whom he
is dependent
15. Has law reform concerning the domicile been entirely successful? No. Whether the
reform has been entirely successful is perhaps open to doubt.
16. What are two complaints not settled by law reform? The first concerns the alleged
difficulty, which arises from the presumption of the continuance of the domicile of origin,
in establishing the acquisition of a domicile of choice. The other concerns the revival of
the domicile of origin.
17. What attempts were made in the 1950s? Were those attempts successful? Attempts were
made in the 1950s to abolish the presumption of the continuance of the domicile of origin
and replace it by a presumption that a person is domiciled in his country of residence,
but Bills introduced into the House of Lords for this purpose were lost or withdrawn in
consequence.
18. What are possible solutions to the problems in the law of domicile? Possible solutions to
these problems in the law of domicile are either to regard the law as beyond redemption
and abandon it as a connecting factor or make another connecting factor an alternative
to domicile.
19. What compromise has been reached according to the Hague Conventions on Private
International Law? The Hague Conventions on Private International Law have resulted
in a compromise between those systems which adopt domicile in our sense and those
which adopt nationality and have produced ‘habitual residence’ which is like domicile
shorn of its technicalities, as a connecting factor side by side with domicile and
nationality.
Unit 2.
JURISDICTION OF US COURTS. Part I
Exercise 3.
1. "Subject matter" or "legislative" jurisdiction is the jurisdiction of a US court conferred
upon it, firstly, by the US Constitution and, secondly, by the state or local enabling
statute. This is the jurisdiction to take up all causes of action or special causes of action,
e.g. probation, small claims, traffic offences, family matters, bankruptcy, etc.
2. General jurisdiction requires the connection between the defendant and the forum,
whereas special jurisdiction requires the connection between the forum, the defendant
AND the cause of action.
3. Jurisdiction can be contested on constitutional or statutory grounds: that the court has
exceeded either its constitutional legal entitlement or its enabling statute. Also attacks
usually invoke due process violations.
Exercise 4.
to stipulate a court's jurisdiction - устанавливать подсудность;
to commence a suit - начинать судебный процесс, судебное разбирательство;
in contravention of due process - в нарушение надлежащей правовой процедуры;
to give closer scrutiny (to) - рассмотреть более подробно;
to sound in personam - являться обязательственным (об иске);
given the concerns - учитывая обеспокоенность, интерес;
to withhold judicial authority - лишать суд полномочий
Exercise 5.
наделять/облекать судебной властью - to confer judicial authority (upon);
быть последовательным - to be consistent;
нарушать право ответчика на надлежащую правовую/судебную процедуру - to offend the
defendant's right to due process;
субститут личного вручения (судебного документа) - substituted service (of process);
передавать на рассмотрение суда - to assign to a court;
утвердить трансграничную подсудность ответчика - to assert long-arm jurisdiction over the
defendant;
выносить судебное решение о правах - to adjudicate rights
Exercise 6. 1 – C; 2 – B; 3 – A; 4 – D; 5 – C; 6 - B
Exercise 7.
1. confer judicial authority ... confer; 2. offends the defendant's right to due process;
3. consistent; 4. to assert long-arm jurisdiction over ... defendants; 5. adjudicate rights;
6. substituted service
Exercise 9.
1. What are the two meanings of the term "jurisdiction" used in the text? 1) A geo-political
unit having a single body of law (i.e., a city, county, state, or nation); and 2) that used
most frequently, the power of a court to affect interests of parties that will be recognized
elsewhere.
2. Why is jurisdiction important in Conflict of Laws? In Conflict of Laws we are concerned
with the duty of a second state (or “jurisdiction”) to recognize the act of a prior forum
when that act is brought before the second forum for recognition. If the first court lacked
jurisdiction to hear and determine the action, in most cases there is no duty on the part of
the second court to recognize the first court’s decision.
3. How are the US courts conferred upon with judicial authority? The “power” of a court to
alter the rights of individuals or interests in property is limited by the US Constitution
(chiefly the due process clauses of the 5th and 14th Amendments) and/or by state or local
statutes that stipulate the court’s jurisdiction.
4. What two factors is a US court's "subject matter" jurisdiction limited by? A court’s
jurisdiction is limited first by its enabling statute and only secondarily by the Constitution
5. What do the cases Buchanan v. Rucker and Pennoyer v. Neff illustrate? Two classic cases
illustrate that courts cannot act without statutory or constitutional authority
(“jurisdiction”).
6. What three forms of judicial jurisdiction are mentioned in the text? What are their special
features? In personam; in rem; and quasi in rem.
7. What is the controversy over quasi in rem jurisdiction? Quasi in rem jurisdiction has
several meanings. Some scholars limit rem proceedings to those that adjudicate rights in
property as against the whole world. Another group of scholars considers rem
proceedings to be those in which property is the object of the suit, whether that right is
asserted against named defendants or the whole world. To them, a quasi in rem
proceeding is one in which the nature of the suit is personal, but wherein property is
attached as a basis for jurisdiction and to satisfy the judgment for the plaintiff.
8. In what case are the courts said to have general jurisdiction over a person? When a person
(natural or corporate) has connections with a state so substantial that it would not be
improper to bring any cause of action against him/her there, the courts of that state are
said to have general jurisdiction over that person.
9. When do the US courts exercise special (limited) jurisdiction over a defendant? Special
(or limited) jurisdiction connotes a connection between a party, an event or transaction
and a jurisdiction, such that it would not be improper to require the defendant to defend
himself against a particular (specific) cause of action in that forum (due to those
contacts).
10. What causes of action call for the exercise of special jurisdiction? This form of
jurisdiction is cause-specific, and will support only actions that are sufficiently related to
the forum. Thus, rem jurisdiction is always specific, since it is always limited to the res
under the control of the court.
11. On what grounds can the validity of jurisdiction be argued? Exercise of court jurisdiction
may be attacked on statutory or constitutional grounds.
12. What is the rationale for attacking jurisdiction if judicial authority is statutorily withheld?
Whenever judicial authority is withheld, the court is viewed as “not competent” to hear
the case in question. Therefore, the first (and often best) attack against court jurisdiction
is that the court was not delegated authority over the matter or, if it was, that some
requirement of the enabling statute has not been satisfied.
13. On what constitutional grounds can a court jurisdiction be attacked? The legislature is
powerless to assign judicial authority in contravention of So, Exceeding judicial
authority in contravention of the due process clauses of the United States Constitution:
the Fifth Amendment (governing the federal government); and the Fourteenth
Amendment (governing state governments), and, to a lesser extent, the interstate
commerce clause, or even the privileges and immunities and the full faith and credit
clauses.
14. What are the reasons for the concern over personal jurisdiction in conflicts situations?
The contest between the parties often takes the form of a contest on the issue of personam
jurisdiction, even though the parties may be most concerned by choice of law. Hence, the
contest devolves into whether or not a particular jurisdiction’s long-arm statute, or the
US Constitution, will allow jurisdiction to be exercised over an absent defendant. The
choice-of-law issue is reserved for a later stage in the proceeding.
15. How does the US Supreme Court tend to consider long-arm jurisdiction over natural and
legal entities, respectively? Contemporary case law indicates that the US Supreme Court
is more willing to allow extenuated long-arm jurisdiction in cases involving large
corporations (particularly insurance companies), individuals doing considerable
interstate business, and defamation cases, than with ordinary citizens.
JURISDICTION OF US COURTS. Part II
Exercise 1.
1. What major parts is the text divided into? Bases for general jurisdiction and bases for
special (limited) jurisdiction
2. What connections between the forum and the defendant are deemed to be strong enough
to justify general personam jurisdiction? Domicile, residence, nationality, and citizenship
3. What problems does mere physical presence pose for the exercise of general jurisdiction?
It poses certain due process problems
4. What reason is given for the court's ability to assert its legal authority over a domiciliary?
If a person has but one domicile, and it is where he chooses to make his legal residence,
it stands to reason that his domicile can assert legal authority over him, whether he is
present or not
5. In what way is the nexus of residence as a jurisdictional basis resemble that of domicile?
Since an individual can have more than one residence, it is more tenuous to suggest that
his residential court can assert jurisdiction over him on the basis of that connection
alone. Nonetheless, an elective choice of residence and the substantial connection
between a resident and his residence involves some of the same connections as does
domicile. Certainly this is true of the European notion of “habitual residence,” although
it is less the case with regard to occasional or temporary residences. Nonetheless, the
nexus of residence is often sufficient to support general jurisdiction.
6. In what situations, typically, does nationality serve as a jurisdictional basis? Nationality is
rarely used as a basis for jurisdiction in the United States. More frequently, state
jurisdiction is based on citizenship, domicile, or residence. “Nationality” is generally
used to describe the connection between foreign nations and their subjects.
7. When is physical presence recognized as a valid basis for establishing general
jurisdiction? Jurisdiction also has been asserted over individuals, whether or not they
owe allegiance to a sovereign, if they can be served while physically present within a
state’s boundaries. Generally, this presence must be conscious, voluntary, and more than
momentary.
8. What are the common grounds for attacks on jurisdiction in case it was asserted on the
basis of physical presence? If the presence of a defendant in a jurisdiction is fraudulently
induced by a plaintiff or his agent, with the goal of exercising personal jurisdiction over
that defendant, a court will usually decline to assert the jurisdiction fraudulently
obtained. When a defendant is forcefully brought into a jurisdiction and court authority
is asserted over him/her, that authority is wanting because the defendant’s presence was
not voluntary.
9. What immunities from or privileges against the exercise of general jurisdiction are
mentioned in the text? Under certain circumstances, a person may be privileged against
the exercise of personam jurisdiction over him/her, although physically present in the
jurisdiction asserting its authority. A common example is the defendant who enters a
jurisdiction on a “special appearance,” specifically to plead a lack of personam
jurisdiction over him/her. He is physically within the court’s jurisdiction, but legally
he/she is not present, due to “privilege.” Other examples include: foreign parties
subpoenaed to appear in a local proceeding and the diplomatic “immunity” sometimes
granted foreign service officers.
10. How many and what bases for special jurisdiction are covered in the text? Special or
“limited” jurisdiction is based on a specific, limited relationship between the defendant
and the court asserting power over him/her.
11. What is meant by voluntary appearance in the forum to grant it a basis for asserting
special jurisdiction? Voluntary appearance means that the party is not defrauded or
forced into entering the jurisdiction.
12. How can consent to be amenable to the forum's jurisdiction be expressed? If a party
contractually consents to be amenable to a suit in a jurisdiction, then that willingness to
submit to the jurisdiction is probably sufficient.
13. What particular bases for long-arm jurisdiction are considered in the text? Te behavior of
the defendant implies “consent” to the exercise of jurisdiction over him/her in certain
matters
14. What is meant by constructive consent? Occasionally it can be said that a defendant, by
reason of his/her legal relationship to a jurisdiction, has constructively consented to the
exercise of its authority over him. A case frequently cited is Dubin v. City of
Philadelphia, 1938. In it, an out-of-state landlord was found to have constructively
consented to in personam jurisdiction over him in a suit arising from ownership of a
property in Philadelphia, and related to the duties of ownership.
15. In what circumstances can "minimum contacts" enable the exercise of long-arm
jurisdiction? “Minimum contacts” would minimally satisfy the requirements of the
Constitution’s due process clauses (5th and 14th Amendments) in certain legal actions.
16. (Optional) Comment on the cases illustrating the exercise of long-arm jurisdiction based
on "minimum contacts".
17. What considerations serve as guidelines for the US Supreme Court in establishing the
restrictions on asserting "minimum contacts" jurisdiction? The considerations are:
frequency and substantiality of defendant’s contacts with the forum; that the legal claim
arises from these contacts; contacts initiated by the defendant; benefits sought or derived
from the forum’s law; burden on the defendant to defend in the forum versus the
plaintiff’s difficulty or hardship in securing an alternate venue; the interest of the forum
in granting relief (usually to its domiciliary or resident).
18. What role does the concept of foreseeability play in justifying "minimum contacts"
jurisdiction? The jurisdictional concept of “foreseeability” involves fewer contacts than
those in International Shoe. In its most naked form, foreseeability posits that, although
the defendant has few contacts with the jurisdiction asserting authority over him, he is
able to foresee both that his actions might cause some injury there and, especially, that
he may be hailed into court there to defend his behavior.
19. How is the concept of hybrid jurisdiction explained? The concept of hybrid jurisdiction
presupposes that the injury in question is not the direct consequence of the defendant’s
activity within the state asserting jurisdiction (did not “arise from”), but is sufficiently
“related to” the defendant’s activity within the state that the exercise of in personam
jurisdiction over him is constitutional. Therefore, the “contacts” between the defendant
and the state are somewhat independent of the cause of action.
20. What does derivative jurisdiction mean and how is it invoked? Derivative jurisdiction”
refers to the ability of a court to exercise personal jurisdiction over an absent defendant
because the court has jurisdiction of a party related to that defendant. Jurisdiction over
the former derives from jurisdiction of the latter. Their relationship is frequently that of
an agent and principal, or principal and subsidiary, although other relationships will
suffice.
21. What does continuance of jurisdiction presume? Continuance of jurisdiction recognizes
the continuation of properly-established jurisdiction, sometimes for considerable periods
of time. Continuation presumes that the initial jurisdiction of the court was valid and that
no event has occurred which would interrupt it.
22. What does the court need in order to assert its rem jurisdiction? In order for a court to
assert rem jurisdiction it usually needs only to identify property (movable or immovable,
tangible or intangible) within its geopolitical boundaries that is subject to court
attachment, garnishment or sequestration. Classic rem jurisdiction exists when a plaintiff
identifies a res within the state’s authority, asserts jurisdiction over it, and proceeds to
litigate interests or rights in the res itself.
Unit 3.
CHOICE OF LAW RULES. Part I
Exercise 1.
1. Conflict of laws.
2. The purpose of this body of rules is to assist an English court in deciding a case which
contains a foreign element.
3. If the case contains a foreign element.
Exercise 2.
1 – C; 2 – H; 3 – A; 4 – B; 5 – D; 6 – J; 7 – F; 8 – I; 9 – g; 10 - E
Exercise 3.
A – 3; B – 4; C – 1; D – 5; E – 10; F – 7; G – 9; H – 2; I – 8; J - 6
Exercise 7.
1. закон места бракосочетания - lex loci celebrationis – the law of the place of the
celebration of a marriage
2. закон места совершения или исполнения договора – lex loci contructus – the law of
the place where the contract is concluded
3. право, свойственное договору; право, регулирующее существо отношений в
договоре – lex causae – the law which governs the issue
4. закон места нахождения имущества – lex situs – the law of the place where property is
situated
5. закон места совершения преступления или правонарушения – lex loci delicti
commissi – the law of the place where a tort is committed
6. закон места совершения акта или сделки – lex loci actus – the law of the place where a
transaction is concleded
7. закон домициля – lex domicilii – the law of a person’s domicile
8. закон суда – lex fori – the law administered by the court hearing the case
9. закон места исполнения сделки - lex loci solutionis – the law of the place of
performance of a contract
10. закон, регулирующий сделку (напр., применимое право в договоре) – lex actus – the
law governing a transaction
Exercise 7.
1. A category to which the legal issue of the case belong
2. Applicable law governing a particular transaction
3. The process of determination what legal category a particular legal issue belong to
Exercise 11.
A – 3; B – 5; C – 1; D – 10; E – 2; F – 4; G – 6; H – 8; I - 7 ; J - 9
Exercise 13.
1 – False (It makes it still more difficult.)
2 – True
3 – False (It is the legal issue.)
4 – False (It belongs to procedural rules.)
Exercise 14.
1. What is the structure of a law rule in conflict of laws? A law rule in conflict of laws
consists of a legal category and a connecting factor.
2. What difficulties may arise in connection with legal categories? Problems may occur
because of conflicts between different legal systems and they may arise in three ways. The
case may fall into one legal category in the view of the lex fori (English law) but into
another by the foreign law which is alleged to be the lex causae, or applicable law.
3. What difficulties may arise as far as connecting factors are concerned? English law and
the foreign (say, French) law may agree on the legal category, and on the connecting
factor. But this conceals a latent conflict, because the two laws mean different things by
the connecting factor. There is also a patent conflict between the respective choice of law
rules, since they employ different connecting factors.
4. What are the legal means of overcoming those difficulties? Characterisation, the
interpretation of the connecting factor, renvoi.
5. What connecting factors are employed by conflict of laws? Connecting factors include the
personal law (domicile, habitual residence and, very rarely, nationality), the place where
the transaction takes place (as place of celebration of a marriage or the place of
contracting), the place of performance (as in contracts), the intention of the parties, the
situs (the place where property is situated) and the place where the court (forum) is
sitting.
6. What does personal law include? Personal law includes domicile, habitual residence and,
very rarely, nationality.
7. Why is it necessary to give the interpretation of a connecting factor? Since the conflict of
laws forms part of English law, English law alone can determine when a foreign law is to
be applied. It follows from this that English law must not only select the connecting factor,
it must also say what it means. Thus, if both English and French law use domicile as a
connecting factor, but by English law a person is domiciled in France and by French law
in England, he will be regarded by an English court as domiciled in France.
8. Whose obligation is it to select and interpret the connecting factor? The English courts by
applying rules of the English law.
9. What are the exceptions to this general rule? There are two exceptions to this general rule.
These are: (i) nationality - this can only be determined by French law if a person is
alleged to be a French national; (ii) for jurisdictional purposes, two statutes provide that
in certain cases, domicile shall be as determined by the foreign law in question.
10. Why do you think it was important to determine the domicile of the deceased Mrs A?
What
possible legal category might be necessary to be determined in this case? If both
English and French law use domicile as a connecting factor, but by English law a person
is domiciled in France and by French law in England, he will be regarded by an English
court as domiciled in France. In two cases the English courts have determined, by
applying rules of the English law of contract, whether a contract was concluded in
England or abroad. In fact, in neither case did either party think it is worth arguing that
the matter should be determined by a foreign law. There can be no doubt that if it should
be necessary to determine the situs of property, for example, a bank account at a New
York bank's English branch, English law would apply, and the situs would be England,
even if by New York law it would be New York.
CHOICE OF LAWS. Part II
Exercise 1. Answer the questions on Text 2.
1.
2.
3.
4.
5.
6.
Where and when did the lex fori theory appear? This was proposed by the German and
French writers, Kahn and Bartin, who 'discovered' the problem in the 1890s.
Has the lex fori theory ever been adopted in practice by English courts? It has been the
prevailing theory on the Continent, and by and large has been adopted in practice by the
English courts.
How should the court characterize the issue and foreign rules of law according to the lex
fori theory? According to this theory the court should characterise the issue in
accordance with the categories of its own domestic law, and foreign rules of law in
accordance with their nearest analogy in the same law.
What three objections were raised to the lex fori theory? Objections raised to the lex fori
theory are that its application may result in a distortion of the foreign rule and render it
inapplicable in cases in which the foreign law would apply it, and vice versa. Moreover if
there is no close analogy in the domestic law (as there is no analogy in English law to the
matrimonial property regime known to foreign laws), the theory does not work. Lastly, its
proponents sometimes seem to suggest that it is facts alone which have to be classified,
but this is not so; it is facts which are presented in the light of a foreign law.
According to which theory should classification be effected by adopting the categories of
the governing law? The lex causae theory.
How many objections are there to the lex causae theory? What are they? There are two
serious objections to this theory. First, the whole purpose of characterisation is to
discover what law governs the issue. To say that the governing law dictates the process of
characterisation is to argue in a circle, for how can we know what the governing law is
until the process of characterisation is completed? Secondly, if there are two possible
7.
8.
9.
10.
11.
12.
foreign laws to govern the matter, and they characterise the issue differently, which is to
be adopted by the English court?
What does “idiosyncratic foreign characterisation” mean? Give the example from the
text. Idiosyncratic foreign characterisation means characterisation peculiar to foreign
law rules. The adoption of this theory could compel the adoption of idiosyncratic
foreign characterisation, such as the well-known rule of Maltese law that a Maltese
person can only be validly married, wherever the ceremony takes place, if he or she goes
through a ceremony before a Roman Catholic priest. The court would have to resort to
public policy to avoid this consequence.
How can the court avoid the consequences of idiosyncratic foreign characterization? The
court may resort to public policy to avoid this consequence.
What is the essence of analytical jurisprudence? Analytical jurisprudence means the
general science of law, based on the results of the study of comparative law, which
extracts from this study essential general principles of professedly universal application not principles based on, or applicable to, the legal system of one country only.
Which conceptions are to be used by conflicts rules according to analytical jurisprudence
and comparative law? 'Conceptions of an absolutely general character' that are borrowed
from analytical jurisprudence.
Why is the theory of analytical jurisprudence and comparative law not perfect for the
purposes of conflict of laws? First, few universal principles are disclosed by analytical
jurisprudence and comparative law which would be of assistance in this area. Secondly,
it may also disclose differences, which it is hardly capable of resolving. Thirdly, it is
rather impractical; it would be asking too much of legal advisers and judges to undertake
the exercise involved, and one cannot imagine them doing so. This method would
certainly add to the length and cost of litigation.
What are the purposes of the first stage and the second stage of Falconbridge’s theory?
The first stage, a task for the lex fori, is to define the scope of the legal category, the
categories not being those of the domestic legal system but of its private international
law, and the second is to examine the relevant foreign rule in its own context to see
whether it can be fitted into the legal category in question.
Unit 4.
SUBSTANCE AND PROCEDURE. Part I
Exercise 2.
1. Substantive issues are those which concern the existence of a right, whereas procedural
issues are those which concern the method and means of enforcement of a right.
2. The importance is that matters of substance are governed by the lex causae (the foreign
law), whereas matters of procedure are governed by the lex fori (the forum law).
3. Some difficulties may arise in deciding (classifying) what in the forum law and in the
foreign law is substantive and what is procedural.
Exercise 3. Read
1. Substantive issues are those which concern the existence of a right, whereas procedural
issues are those which concern the method and means of enforcement of a right.
2. Article 14 of the Rome Convention provides that a contract may be decided by the
methods of English law or by those of the applicable law or by those of the law of the
place of contracting.
3. Whether particular evidence is admissible is a matter of procedure, but whether oral
evidence is admissible in order to interpret a written document is a matter of
substance.
4. The Act provides that all limitation periods, both English and foreign, should be
classified as substantive so that the foreign rule would be applied.
5. Remoteness of damage, which is a substantive matter, is governed by the lex causae,
and measurement or quantification of damages, which is a question of procedure, is
governed by the lex fori.
Exercise 4.
1 – true
2 – false. Problems may occur in deciding whether a rule of English law or foreign law is
procedural or substantive, for example in the Chaplin case the majority of the House of
Lords regarded the question whether a victim of the tort of negligence could recover
damages for pain and suffering as concerned with remoteness of damage, whereas the
minority appeared to think that it was a question of quantification of damages.
Remoteness is a question of substance, quantification one of procedure.
3 – true
4 – true
5 – true
6 – true
7 – true
8 – false. The oral agreement was held unenforceable by English law since it was not
evidenced by writing as required by the Statute of Frauds.
Exercise 5.
cause undue hardship причинять чрезмерные трудности
admit testimony допустить показания свидетелей (как доказательства)
follow a case следовать прецеденту
recover judgment иметь судебное решение в свою пользy
presumption of legitimacy презумпция законнорожденности
demonstrate affirmative доказывать путем установления фактов
a cause of action основание иска
the proper law закон, свойственный договору
entitlement to the mother’ estate право на наследство матери
a good defence to a further action юридически обоснованное возражение против нового иска
Exercise 6.
по усмотрению (суда) in (the court’s) discretion
судебное решение по существу a judgment on the merits
иностранное право the lex causae/foreign law
обойти норму outflank a rule
оспорить на том основании, что attack/challenge a decision on the ground that
в соответствии с требованиями закона о мошенничестве as required by the Statute of Frauds
создавать фактическую презумпцию raise a presumption of fact
по причине отсутствия одной стороны на территории иностранного государства – because
of either party’s absence from the jurisdiction
иностранное судебное решение о сроке давности искa a foreign judgment on a limitation
point
полагаясь на буквальное понимание нормы иностранного права in reliance upon the literal
wording of a rule of foreign law
Exercise 7.
1 – d; 2 – g; 3 – e; 4 – f; 5 – c; 6 – a; 7 – b
Exercise 8.
a – 2; b – 1; c – 7; d – 5; e – 6; f – 4; g – 3;
Exercise 11. Answer the following questions about the text.
1. What matters are traditionally regarded as substantive or procedural? Substantive
issues are those which concern the existence of a right, whereas procedural issues
are those which concern the method and means of enforcement of a right.
2. Why has the classification of rules of law as substantive or procedural presented such
difficulties
in the English legal system? It is not easy to state with certainty
whether an English rule or rule of foreign law is substantive or procedural.
3. How does the author support the argument that it is not always clear whether an
English rule is procedural or substantive? He refers the reader to the court’s ruling in
the case of Chaplin v. Boys.
4. What rules of evidence can indisputably be classified as procedural? Questions of
evidence, such as what has to be proved, how it may be proved, and the sufficiency of
proof, are clearly procedural.
5. What law are presumptions governed by as a general rule? Generally, rebuttable
presumptions are considered procedural and so governed by the lex fori.
6. What difficulties may arise with classification of presumptions and the burden of
proof? Some presumptions, especially irrebuttable presumptions of law, may be
considered to be rules of substance due to their effect on the outcome of the case,
which may lead to the conflict of characterization in English law and the foreign law.
7. What legal issue did the claimant in Re Fuld fail to demonstrate affirmatively and
what law was chosen for application and for what reason? He failed to prove with
required certainty the fact that the testator had known and approved of the contents
of the codicils to the will and the English court categorised this issue as one of
evidence (the burden of poof) and so governed by English law.
8. Can you explain why in the Cohn case German law as the lex causae was chosen?
The issue before the court was held to be substantive and German law was applied.
9. What cases are considered by the author to show how presumptions and the burden of
proof issues can affect the outcome of the case? Re Fuld and Re Cohn.
10. Under the Rome Convention, what law other than the lex fori may govern
presumptions? The applicable law.
11. What decision did the court reach in Leroux v. Brown? What fact was the court
influenced by? The oral contract though valid could not be enforced by English law
under the provisions of the Statute of Frauds.
12. Why has this decision been long criticized? This decision has been attacked on the
grounds that the issue was effectively one of substance since it made no difference
whether the contract was invalid or only unenforceable – the claimant lost either
way.
13. What rules govern the period of time during which an action can be brought? Rules
governing the period of time during which an action must be brought are, in legal
systems generally, of two kinds: first, those which merely bar the action, which are
procedural; second, those which extinguish the plaintiff’s rights, which are
substantive.
14. What approach to classification of limitation periods has always been the settled rule
of the English conflict of laws and what changes have been introduced into the
existing law since the enactment of the Foreign Limitation Periods Act 1984? Most
English common law rules of limitation of actions are procedural and the English
courts have taken the view that the relevant rules of the foreign law should be
regarded likewise, which may have often led to the conflict of characterization. Since
the enactment of the Foreign Limitation Periods Act in 1984, all limitation periods,
both English and foreign, should be classified as substantive.
15. What does Article 10 of the Rome Convention provide? Article 10(1) (d) of the Rome
Convention, 1980 states that prescription and limitation of actions are governed by
the contract’s applicable law.
16. What factors may the English courts consider before applying the foreign rule to
limitation periods? Such factors as public policy and the character and nature of a
foreign judgment on this point (whether it is final, on the merits and valid).
Exercise 14.
Speech cliche/ link word
therefore
meaning
for that reason
in what follows
it happens as a logical result to announce the subject in
advance
in connection with,
to mark a change of subject
concerning
differently
to refer to sth that is
different from the
abovementioned
apart from, not including
to introduce exceptions to
some general truth
not only…but also
to join or to balance two
notions of like nature
while
to compare or to balance
two contrasting facts
in addition
to introduce some extra or
more conclusive information
as regards
otherwise
except
both…and
whereas
moreover
Function
to give a logical consequence
SUBSTANCE AND PROCEDURE. Part II
Exercise 1.
A—3; B – 1; C – 4; D - 2
Exercise 2.
1. What law governs the grant of remedies? The lex fori (or English law) does.
2. On what grounds may the claimant be refused an English remedy? If this would
effectively affect the right he has acquired by the foreign law.
3. What two questions must be distinguished in respect of damages and for what reason?
Two questions must be distinguished – remoteness of damage, which is a question of
substance and so governed by the lex causae, and measurement of damages, which is a
matter of procedure and so governed the lex fori. The distinction between these two
issues may affect the choice of the applicable law.
4. What law, under the Rome Convention, may determine the consequences of breach of
contract? The applicable law may be chosen to govern this issue.
5. In what currency could damages be awarded by the English courts until 1975? Damages
could not be awarded in a foreign currency, only in sterling.
6. Can the English courts nowadays give judgments in foreign currency and in what cases?
Yes, they can. This rule may apply to garnishee orders, claims against a company in
liquidation, claims for restitution and for breach of contract.
7. What rule was applied in the case of Miliangos v. George Frank and what other matters
was it extended to cover? The new rule that in certain cases the English courts could give
judgment in foreign currency was applied and it was extended to cover a claim on a bill
of exchange and to damages in tort.
8. What law determines the method of enforcing a judgment? The lex fori does.
9. What law governs the priority of claims in a maritime lien? The lex fori does.
10. What legal principle was the court’s decision in the case of The Halcyon Isle based on?
The legal principle reaffirmed by the Privy Council was to the effect that the lex fori, in
this case the law of Singapore, would determine what classes of events gave rise to a
maritime lien and priority between such liens.
Unit 5.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS. Part 1
Exercise 2.
3. The bulk of the text is devoted to the US conflict of laws.
Exercise 3.
1.
2.
3.
4.
5.
What is comity? Black’s Law Dictionary describes comity as “a willingness to grant a
privilege, not as a matter of right, but out of deference and good will.” That is, if there is
no duty, the court asked to recognize the foreign judgment may thoroughly examine the
process accorded in the first forum before deciding of whether or not to do so.
What is full faith and credit? Article IV §1 of the Constitution contains the “full faith and
credit” clause, which literally commands that “each State [recognize] the public Acts,
Records, and judicial Proceedings of every other State.” The clause precludes inquiry
into the appropriateness of another state’s judicial proceedings, so long as its court had
good jurisdiction and accorded due process.
What are the differences between them? In the absence of a treaty, statute or presidential
order, foreign country judgments are governed by the loose principle of comity. Under
this principle, if there is no duty, the court asked to recognize the foreign judgment may
thoroughly examine the process accorded in the first forum before deciding of whether or
not to do so. The duty of recognition imposed on jurisdictions governed by the U.S.
Constitution is quite different from comity. Article IV §1 of the Constitution contains the
“full faith and credit” clause, which literally commands that “each State [recognize] the
public Acts, Records, and judicial Proceedings of every other State.” The clause
precludes inquiry into the appropriateness of another state’s judicial proceedings, so
long as its court had good jurisdiction and accorded due process. To require less would
perpetuate litigation and allow each state to impose its policy on proceedings fully
litigated in another state.
Is there any duty imposed on the states of the U.S. to recognize in personam judgments?
Yes, the duty of recognition is imposed on jurisdictions governed by the U.S.
Constitution, that is, the fifty states, the District of Columbia, Puerto Rico, the U.S.
territories and interstate recognition is accorded only to in personam judgments,
whereas judgments in rem and quasi in rem are generally said not to have
extraterritorial effect.
Is recognition extended to in rem and quasi in rem judgments? Judgments in rem and
quasi in rem are generally said not to have extraterritorial effect.
Exercise 4.
Defenses to the enforcement of foreign judgments are reasons that the forum court can refer to
in order to avoid enforcing the foreign judgment. Once the foreign court's jurisdiction is
recognized, the only available defenses to an action for enforcement can be: the foreign
judgment was obtained by fraud, the foreign judgment involved a denial of natural justice,
enforcement of the foreign judgment is contrary to public policy, or the foreign judgment
involves a defendant who was not a party to the foreign suit.
Exercise 5.
to grant a privilege предоставить привилегию
to inquire into proper jurisdiction исследовать надлежащую юрисдикцию
notwithstanding reciprocity несмотря на взаимность
to accord due process to the parties обеспечить соблюдение должной правовой процедуры в
отношении сторон
to impose one’s policy on proceedings применить свой порядок проведения к процессу
рассмотрения дела
to accord interstate recognition применять взаимное признание судебных решений
full and fair opportunity ничем не ограниченная и честная возможность
facets of the legal entitlement грани (стороны) юридического права
to be barred from further litigation находиться под запретом дальнейшей тяжбы
to provide for the reciprocal recognition of arbitration awards предписывать взаимное
признание арбитражных решений
the cause of action underlying the judgment основание иска, лежащее в основе судебного
решения
to fit the criterion of penal judgments соответствовать критерию, применяемому к
решениям, выносимым по уголовному закону
release or satisfaction of a judgment освобождение от исполнения судебного решения или
исполнение судебного решения
to expunge the force or terms of a judgment отменить силу или сроки судебного решения
to perpetuate litigation обеспечить дальнейшее проведение судебного разбирательства
Exercise 6.
из уважения и по доброй воле out of deference and good will
юридическая сила (законность) в порядке правовой презумпции issue presumption
отвечать взаимностью to reciprocate
придавая юридическую силу судебным решениям by validating the judgments
не допускать изучения судебного производства на предмет его законности preclude inquiry
into the appropriateness of another states judicial proceedings
предъявить свои аргументы по делу to present one’s side of the case
пересмотр решения является бессмысленным no purpose is served by reviewing that decision
пытаться обеспечить правовой санкцией во втором форуме to seek to be enforced in a
second forum
пытаться получить возмещение на основании этого права to seek to recover on that right
вынести решение в пользу ответчика to render a judgment for the plaintiff
решение по существу judgment on the merits
подчиняться коллизионным нормам штатов to be subject to state conflict rules
допустить ошибку при вынесении судебного решения to err in the judgment
изменить постановление суда to alter a judgment
Exercise 7.
NB: Выделенные жирным шрифтом речевые коннекторы факультативны и могут быть
заменены любыми другими, подходящими по смыслу.
1. …………. иностранные решения признаются юридически действительными в силу
презумпции. As a general rule, foreign judgments are given prima facie validity.
2. …………. между штатами принято признавать только решения по
обязательственным искам. In general, interstate recognition is accorded only to in
personam judgments.
3. …………. , если обеим сторонам было отказано в надлежащей правовой процедуре,
судебный форум 2 не обязан признавать судебное решение, вынесенное форумом
It bears saying that, if both parties have been denied due process of law, then Forum 2
has no duty to recognize the Forum 1 decision.
4. …………. судебный форум 2 не должен изучать основание иска, лежащего в
основе решения судебного форума 1. As a rule, it is inappropriate for Forum 2 to
inquire into the nature of the cause of action underlying the Forum 1 judgment.
5. ………….. может не оказаться суда, имеющего надлежащую юрисдикцию.
However, there may be no competent court.
6. ………….. , что если решение вынесено в пользу истца, оно сливается со средством
судебной защиты, содержащимся в этом решении. In other words, if the judgment
is for the plaintiff, it will be merged with the remedy.
7. …………… , что если решение вынесено в пользу ответчика, истцу запрещается
дальнейшая тяжба. Evidently, if the judgment is for the defendant, the plaintiff is
barred from further litigation.
Exercise 8.
1 - B; 2 - D ; 3 - A; 4 - B ; 5 – D
Exercise 10.
1. If the judgment of Forum 1 was rendered without proper jurisdiction, or one or
both parties have been denied due process of law, then Forum 2 has no duty to
recognize it.
2. Rem judgments, executor judgments and equity determinations that require the
defendant to perform or not to perform and act are not exportable, i.e., there is no
duty to give them full faith and credit.
3. The rule in Huntington v. Attrill stipulates that “no jurisdiction has the duty to
enforce the penal laws or judgments of a sister jurisdiction.”
4. There may be no competent court to hear the non-local cause of action.
Exercise 11.
1.
2.
3.
4.
What two major principles of recognition and enforcement are embodied in the concepts
of res judicata, estoppel, merger and bar? A uniform principle of jurisprudence, that
there must be an end to litigation, and the notion, that whenever there is a full and fair
adjudication of grievances, parties should be bound thereby, are two major principles of
recognition and enforcement embodied in the concepts of res judicata, estoppel, merger
and bar.
What is the meaning of comity? Does comity impose the obligation to recognize foreign
judgments? Black’s Law Dictionary describes comity as “a willingness to grant a
privilege, not as a matter of right, but out of deference and good will.”
What is meant by according foreign judgments prima facie validity and treating them as a
matter of fact? Foreign judgments are true, valid, and sufficient for the forum and the
issues do not require the forum’s interpretation of the law or relevant principles of the
law.
What matters may the enforcing court inquire into? The enforcing court may inquire into
not only: 1) proper jurisdiction (in the international, not constitutional, sense); 2) the
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
adequacy of process (fundamental fairness); 3) extrinsic fraud; and 4) penality, but it
may also examine such matters as: 1) the existence of reciprocity; 2) intrinsic fraud; 3)
the foreign forum’s public policy in relation to the enforcing state’s; and 4) convenience
and fairness to the parties.
What does Article 4 §1 of the U.S. Constitution command vis-à-vis recognition of foreign
judgments? Article IV §1 of the Constitution contains the “full faith and credit” clause,
which literally commands that “each State [recognize] the public Acts, Records, and
judicial Proceedings of every other State.”
What does the full faith and credit clause preclude and why? The clause precludes
inquiry into the appropriateness of another state’s judicial proceedings, so long as its
court had good jurisdiction and accorded due process. To require less would perpetuate
litigation and allow each state to impose its policy on proceedings fully litigated in
another state.
What kind of judgments are accorded interstate recognition? What is the rationale? In
general, interstate recognition is accorded only to in personam judgments. This is
because the parties have subjected themselves or submitted to the jurisdiction of a court
and had their grievance resolved. It should be treated as res judicata in any other
jurisdiction in which recognition is sought.
What is the situation like in respect of in rem and quasi in rem judgments? Judgments in
rem and quasi in rem are generally said not to have extraterritorial effect and interstate
recognition is not accorded to them.
Why cannot the issues fully litigated in the first forum be re-litigated? Issues fully
litigated in the first forum may not be re-litigated in a second forum by the parties or
persons in privity with them due to the principle of estoppel. Since both parties had a full
and fair opportunity to present their side of the case in the first forum, no purpose is
served by reviewing that decision simply because the parties have entered another state.
What two forms of preclusion are mentioned in the text? The two forms of preclusion
have recently been called “claim preclusion” and “issue preclusion,” respectively.
Explain the concepts of merger and bar. When a plaintiff has a claim or cause of action
(a “right”) and seeks to recover on that right in a court proceeding, generally all facets
of the legal entitlement are considered to be before the court chosen by the plaintiff and
will be merged into its judgment (the “remedy”). If the judgment is for the defendant, the
plaintiff is barred from further litigation.
In what way is the plaintiff’s judgment accorded legal status in Forum 2? That is
achieved by a second procedure in Forum 2, in which recognition of the Forum 1
judgment is sought.
What criteria must be met for a sister state judgment to be accorded full faith and credit
by another state’s court? A sister state judgment will be accorded full faith and credit by
another state’s court if that judgment is: 1) made by a court with good jurisdiction; 2) on
the merits (not a judgment on procedural point); and 3) final (not modifiable in Forum
1).
What kind of recognition may be accorded to arbitration awards? In what matters?
Federal legislation provides for the enforcement of arbitration awards in admiralty,
interstate, and international matters, and a U.N. Convention to which the United States is
signatory provides for the reciprocal recognition of arbitration awards of other signatory
nations. Thus some arbitration awards are given enforcement status by federal statute
and treaty. Others are subject to state conflict rules, but they are, in any event, res
judicata (if bilateral and properly achieved).
In what situations is Forum 2 not obliged to recognize the Forum 1 judgments? If the
judgment of Forum 1 was rendered without proper jurisdiction, or one or both parties
have been denied due process of law, then Forum 2 has no duty to recognize it. Rem
16.
17.
18.
19.
20.
judgments, executor judgments and equity determinations that require the defendant to
perform or not to perform and act are not exportable, i.e., there is no duty to give them
full faith and credit. The rule in Huntington v. Attrill stipulates that “no jurisdiction has
the duty to enforce the penal laws or judgments of a sister jurisdiction” and there may be
no competent court to hear the non-local cause of action.
Can an error made by Forum 1 serve as a defense? No, even if Forum 1 erred in its
judgment, so long as it had good jurisdiction of the parties and the case, and accorded
due process, it is entitled to full faith and credit from a subsequent tribunal. It is not for a
later tribunal to correct the error, if any. That should be left to the vertical appeals
process to higher courts in Forum 1.
What judgments are referred to as not exportable? Rem judgments, executor judgments
and equity determinations that require the defendant to perform or not to perform and
act are not exportable, i.e., there is no duty to give them full faith and credit.
Does full faith and credit extend to penal judgments? No, full faith and credit does not
extend to penal judgments. The rule in Huntington v. Attrill stipulates that “no
jurisdiction has the duty to enforce the penal laws or judgments of a sister jurisdiction.”
Does the lack of a competent court constitute a defense? Yes, since not every legislature
grants its courts authority to hear every cause of action.
What action must be taken by the plaintiff in case the Forum 1 determination is later
altered? The plaintiff should inform Forum 2 because there is no way for Forum 2 to
become aware of this fact until and unless either the plaintiff or the defendant informs
Forum 2
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS. Part 2
Exercise 2.
1.
2.
3.
4.
5.
6.
Why are there very few defences to the enforcement of a foreign judgment in England?
The defendant is not permitted to reopen the case and cause it to be re-argued on the
merits, so as to show that the decision of the foreign court was wrong.
Why does the author start with discussing what are not defences to enforcement? Before
discussing the defences available, the author explains what is not a defence.
What do the few available defences usually reflect? The few available defences, to a
greater or lesser extent, reflect public policy.
What two circumstances can never serve as defences? An error of fact or law on the part
of the foreign court and lack of the competence on behalf of the foreign court to give the
judgment under the foreign law
In what way can an English court deal with an error made by the rendering court (the first
court)? There is some authority for the proposition that where, under the foreign law, the
judgment is void and totally destitute of effect, it will not be recognised or enforced by an
English court.
How is the question of a foreign court (the first forum) that has exceeded its jurisdiction
treated by English law? This is a question of foreign, not English law. The foreign court
(or a court of appeal from it), not an English court, is the proper tribunal to decide
whether it has exceeded its jurisdiction.
Exercise 4.
They are four: (1) fraud on the part of the foreign court or of the claimant; (2) breach of natural
justice on behalf of a foreign court; (3) breach of public policy; (4) a foreign judgment is
irreconcilable with a previous English judgment (the English judgment is res judicata)
Exercise 5.
1.
2.
3.
What is the first type of fraud that can serve as a defence? Fraud on the part of the
foreign court or of the claimant
What two forms can fraud on the part of the claimant take? Fraud on the part of the
claimant may take one of two forms. Either it is 'collateral fraud' which vitiates the
jurisdiction of the foreign court by inducing it to assume jurisdiction which otherwise it
would not have done. Or, it may be that the fraud vitiates the foreign judgment on the
merits of the case, where, for example, the court is misled into giving judgment in the
claimant's favour, which it otherwise would not have done.
What rationale employed by English courts enables them to allow re-opening a case on
the merits? English courts may enter into an investigation of the facts which were in issue
before and investigated earlier by the foreign court. The faint jurisdiction for this is that,
since the foreign court could not have known of the facts, which were fraudulently concealed from it, it could not have ruled on them.
Exercise 7.
Natural Justice
1. What maxims are offended against if a foreign court acts in breach of natural justice? If
the foreign court acts in effect as judge in its own cause, it offends against the maxim
nemo judex in causa sua, and if it refuses to allow the defendant to plead his case, it
offends against the maxim audi alteram partem.
2. Is there an obligation conferred upon an English court to enforce such a judgment? No, if
the foreign court acted in breach of natural justice, the judgment may not be enforced by
an English court.
Public Policy
1. What sentence explains the principle of rejecting the judgment on the ground of
public policy? But in rejecting these arguments the court said that if the foreign court
had followed its own procedure and the judgment was untainted by fraud or other
delinquency, an English court would only reject the judgment on the ground of public
policy if it was so offensive in their eyes as to be a denial of natural justice.
Exercise 8.
1. What happens if a foreign judgment is irreconcilable with a previous English Judgment?
The English judgment is res judicata.
2. Will such a judgment be recognized and enforced in England? The foreign judgment will
not be recognised or enforced.
Unit 6.
ARBITRATION. Part 1
Exercise 2.
3. What can you recollect about summary proceedings?
Summary proceedings
When cases are to be adjudged promptly, without any unnecessary form, the proceedings are
said to be summary. In no case can the party be tried summarily unless when such proceedings
are authorized by legislative authority.
Exercise 3.
1. What is the difference between a judgment and an award? An arbitration award
usually arises out of a contract to submit a dispute to settlement by arbitration.
Such an award has not the same effect in English law as a judgment, and if it
requires enforcement the assistance of a court is needed.
2. What is an English arbitration award? An English arbitration award (i.e. one
made in England, whoever is the arbitrator) may be enforced by an action in the
courts, or by summary procedure under the Arbitration Act 1996, section 66, by
an originating summons made ex parte asking for leave of the court.
3. What is a foreign arbitration award? A foreign arbitration award (i.e. any award
made in a foreign country) can be enforced in England in several different ways.
Exercise 5.
to submit a dispute to settlement by arbitration передать дело в арбитражный суд;
the arbitrator’s jurisdiction is derived from юрисдикция арбитра возникает из;
to be inferred by the court суд определит, сделает вывод касательно;
to compel to state a case for the opinion of the court принудить (арбитра) выступить в суде
для вынесения судом решения;
to dispose of all the points in dispute разрешать, рассматривать все оспариваемые
положения, требования;
to make an award in pursuance of an arbitration agreement выносить решение во исполнение
арбитражного соглашения;
to be outside the scope of the agreement выходить за рамки соглашения;
to resist enforcement противиться исполнению арбитражного решения;
to refuse a stay отказать в приостановлении производства по делу;
to restrain by injunction the bringing of proceedings пресечь подачу иска посредством
судебного запрета
Exercise 6.
в соответствии с положениями закона within these statutory provisions;
действие Акта распространяется the Act extends;
достаточно сказать suffice it to say;
в отсутствие иного прямо выраженного выбора правовой нормы in the absence of an
express choice of law to the contrary;
пересмотреть дело; возобновить судебное производство или рассмотрение дела в суде to
reopen the proceedings;
заявить возражение по иску (об обстоятельстве, освобождающем от ответственности) to
raise a defence;
быть подписанным, отправленным и врученным to be signed, dispatched or delivered;
приостановить рассмотрение дела, производство по делу to stay an action;
быть лишенным законной силы to be null and void, to be inoperative
Exercise 7.
NB Выделенные жирным шрифтом речевые коннекторы факультативны и могут быть
заменены любыми другими, подходящими по смыслу.
1. ..........
арбитражное решение, которое возникает из соглашения о передаче
дела в арбитражный суд, в английском праве не имеет того же юридического
действия, что и судебное решение. As a general rule, an arbitration award which
arises out of a contract to submit a dispute to settlement by arbitration, does not have
the same effect in English law as a judgment.
2. ………
если арбитражное решение необходимо привести в исполнение, то
требуется содействие суда. Evidently, if an arbitration award requires enforcement
the assistance of a court is needed.
3. ………
английское арбитражное решение может быть приведено в
исполнение посредством подачи иска в суд. It is prescribed by law that an English
arbitration award may be enforced by an action in the courts.
4. ………
существуют шесть установленных законом способов приведения их
(иностранных арбитражных решений) в исполнение на территории Англии. As
regards foreign arbitration awards, there are six legally specified ways of their
enforcement within the territory of England.
5. ………
в соответствии с общим правом существуют три условия приведения
решения в исполнение. Technically speaking, there are three conditions for
enforcement at common law.
6. ………
соглашение о передаче дела в арбитражный суд должно иметь силу в
соответствии с применимым правом. First, the agreement to arbitrate must be valid
by its governing law.
7. ………
решение должно иметь силу в соответствии с правом, которое
регулирует арбитражный процесс. Second, the award must be valid by the law which
governs the arbitration proceedings.
8. ……….
решение должно быть окончательным. Finally, the award must be final.
9. ………
английский суд обладает полномочиями приостановить производство
по любому иску, заявленному в нарушение арбитражного соглашения. It is logical
that an English court has powers to stay any action brought in breach of an arbitration
agreement.
10. ………
суд обладает полномочиями отказать в приостановлении производства
по делу, если удостоверяется в том, что арбитражное соглашение не имеет
законной силы. It should be mentioned that the court has a power to refuse a stay if
satisfied that the arbitration agreement is null and void.
Exercise 8.
1.
2.
3.
4.
5.
B concerned with
D be converted into
A held
A disposes of
B be governed
Exercise 11.
1. How does the arbitration award arise? An arbitration award usually arises out of a
contract to submit a dispute to settlement by arbitration.
2. Does an award have the same effect as a judgment in English law? Such an award has
not the same effect in English law as a judgment, and if it requires enforcement the
assistance of a court is needed.
3. Name three ways of how an English arbitration award can be enforced. An English
arbitration award (i.e. one made in England, whoever is the arbitrator) may be enforced
by an action in the courts, or by summary procedure under the Arbitration Act 1996,
section 66, by an originating summons made ex parte asking for leave of the court.
4. In what six ways can a foreign arbitration award be enforced? A foreign arbitration
award (i.e. any award made in a foreign country) can be enforced in England in several
different ways: (a) at common law, by securing an English judgment; (b) if the award is
within the Geneva Convention (1927) and the Protocol on Arbitration Clauses (1923) or
is within the New York Convention (1958), either by action at common law or under the
1996 Act, section 66; (c) even if it is not within these statutory provisions, under section
66; (d) if it has been made enforceable by a foreign judgment, by an action on the
judgment; (e) if it was made in a country to which the Administration of Justice Act 1920,
Part II, or the Foreign Judgments (Reciprocal Enforcement) Act 1933 extends, as if it
were a judgment rendered by a court in that country; (f) if it was made in another part of
the United Kingdom and enforceable there as a judgment, it is enforceable by
registration in England.
5. What are the conditions for enforcement at common law? There are three conditions for
enforcement at common law: (i) the parties must have submitted to arbitration by an
agreement which is valid by its governing law, (ii) the award must be valid by the law
which governs the arbitration proceedings and (iii) it must be final.
6. What legal issues are governed by the applicable law of the contract? The validity,
interpretation and effect of the agreement is governed, as with any other contract, by its
applicable law. Whether the particular dispute is within the agreement is determined by
this law.
7. What happens if the parties to the agreement do not state what law is to govern it? If the
parties to the agreement do not state what law is to govern it, it will be inferred by the
court from the contract's terms and surrounding circumstances, failing which it will be
governed by the system of law with which it has its closest and most real connection.
8. What details do you remember as regards the process of selecting the place of arbitration?
A selection of a particular country as the place of arbitration will, in the absence of an
express choice of law to the contrary, almost certainly give rise to the inference that the
country's law governs it, though this is not necessarily so.
9. What legal issues are governed by the law of the arbitration proceedings? The law of the
arbitration proceedings governs such matters as the procedure of the arbitration, and
whether the arbitrator can be compelled to state a case for the opinion of the court, as
well as whether the award is final.
10. What law governs the proceedings in the absence of an expressly chosen law? In the
absence of an expressly chosen law to govern the proceedings, they will be governed by
the law of the country where they are to take place.
11. What does the third requirement regarding the finality of the award mean? This
requirement means that the award must be final under the foreign law, but this is
directed to determining whether it is final in the English sense.
12. May the award which is otherwise enforceable not be enforced? An award which is
otherwise enforceable may, nevertheless, not be enforced if one of several defences can
be raised.
13. What are the defences to the enforcement of the award which is otherwise enforceable?
(i) the arbitrators' lack of jurisdiction, (ii) fraud, (iii) public policy, (iv) breach of natural
justice.
14. What awards does the Arbitration Act 1950, Part II deal with? This deals with awards
made in pursuance of an arbitration agreement other than one governed by English law
between persons who are subject to the jurisdiction of different countries which are
declared by Order-in-Council to be parties to the Geneva Convention, 1927.
15. What does the expression ‘subject to the jurisdiction’ mean in this context? 'Subject to the
jurisdiction' means that the parties must reside in, or carry on business in, two states that
are parties to that Convention and that the contract containing the submission to
arbitration must have resulted from business conducted therein.
16. What does the Arbitration Act 1996, Part III provide for? It enabled the United Kingdom
to become a party to the New York Convention on the Recognition of Foreign Arbitral
Awards of 1958 which was intended to replace the Geneva Convention. The New York
Convention and the 1996 Act, Part III (sections 100 to 104) create a simpler scheme.
17. What is a ‘Convention’ award? A 'Convention' award is one made in pursuance of an
arbitration agreement in the territory of a state, other than the United Kingdom, which is
a party to the Convention.
18. When is a ‘Convention’ award to be treated as made? An award is to be treated as 'made'
at the seat of the arbitration, regardless of where it was signed, despatched or delivered
to any of the parties.
19. Name two ways of how a “Convention’ award can be enforced. An award may be
enforced by way of an action at common law or, under section 66 of the 1996 Act, by
summary procedure.
20. In what six cases does the court have a discretion to refuse enforcement? The court has a
discretion to refuse enforcement: (a) if a party to the arbitration agreement was under an
incapacity by his personal law; (b) if the arbitration agreement was invalid under the law
to which the parties submitted it (or, if none, the law of the place where the award was
made); (c) if the defendant was not given proper notice of the appointment of the
arbitrator or of the proceedings or was otherwise unable to present his case; (d) if the
award was outside the scope of the agreement; (e) if the composition of the tribunal or
the procedure was not in accordance with the agreement, or if there was no agreement as
to these matters by the law of the country where the arbitration took place; (f) if the
award is not yet binding or has been set aside or suspended by a competent authority of
the country in which, or under the law of which, it was made. These objections must be
made by the party who is resisting enforcement.
21. Name two different cases when the court may refuse enforcement. In two cases either a
party may object or the court of its own motion may refuse enforcement: if (g) the award
is in respect of a matter which is not capable of settlement by arbitration; or if (h)
enforcement would be contrary to public policy.
22. When does the court have powers to stay an action or refuse to stay an action? An English
court has an inherent discretionary power to stay any action brought in breach of an
arbitration agreement. If submission to arbitration is contained in a written agreement
the Arbitration Act 1996, s. 9 provides that the court must stay an action brought in
violation of it; there is no discretion in the matter. But the court has a power to refuse a
stay if satisfied that the arbitration agreement is null and void, or inoperative or
incapable of being performed.
ARBITRATION. Part II
Exercise 3. Answer the questions about the text.
1. What is arbitration in contrast with ordinary litigation? Arbitration as a means of dispute
settlement, instead of the usual court litigation, ordinarily comes about by contract.
2. Name the topic of the text. It is only to the ordinary contract-stipulated, or consensual,
arbitration that attention turns here.
3. What is the attitude of American courts to arbitration? Most American states have proarbitration attitudes today, and some of the more populous ones can even be described as
enthusiastic about the arbitration process for what it spares the court system.
4. Whose law governs a contract when it involves states having different attitudes to
arbitration? The courts have had mixed feelings about that. The better view is that the
matter is not merely procedural, calling for automatic reference to the attitudes of the
forum, but substantive enough to invoke a law-choosing process.
5. What is the Restatement’s position towards the issue? The Restatement’s position is that
the parties may stipulate to the governing law in the agreement itself, which stipulation
would presumably select the law of a pro-arbitration state, and that absent a stipulation
the validity of the commitment to arbitrate should be gauged by the law of the state with
the most significant relationship to the transaction.
6. What is the way of the application of this stipulation by different states? Some states hold
the matter procedural, automatically applying forum law to the issue, or, if the forum is
anti-arbitration, reject the arbitration commitment as violative of forum policy.
7. In what way is the matter viewed by the courts of New York? Statutory changes made it
a leading proponent instead of an enemy to arbitration. New York even accepts
agreements calling for arbitration in foreign nations and recognizes awards rendered
there by default when a duly notified party would not honor the arbitration commitment.
8. What advice is given to an astute lawyer in respect of the application of these rules in two
opposed situations? Since there are some states that are still uncongenial to arbitration, a
lesson to an astute lawyer seeking to compel arbitration in behalf of her client and having
a choice of forums for the application is not to choose such a state. Conversely, the
course of the lawyer who would take the initiative for a client opposed to arbitration is to
choose just such a forum if she can, such as with an application to stay or otherwise undo
the arbitration, or with an ordinary court action ignoring the arbitration commitment.
9. Name the situation in which state law does not govern the issue of arbitrability. If the
transaction falls into the maritime realm or involves interstate or foreign commerce, it is
governed by the federal arbitration act, which is distinct from the state acts.
10.
In what ways are arbitrability issues solved by federal courts? The issue is deemed
substantive to this extent: even if the issue of arbitrability arises in a state court, it must
be resolved by reference to the federal act if it involves a maritime or interstate
commerce transaction. Conversely, an arbitrability issue arising in a federal issue based
(for example) on diversity of citizenship and not involving a maritime or interstate
commerce transaction must be resolved by reference to the law of the forum state rather
than federal act. Involved and intertwined as these principles may be, they do not often
present difficulty for the reason that most states have liberal arbitration acts and the
federal act is a liberal one, too.
11.
What aspects of the arbitrability question are deemed to be procedural? No matter
in which court the issue arises, the mechanics of raising the issue are procedural and
each forum follows its own act.
12.
What are the technical differences between the process of raising an arbitrability
question and answering it? A state court will entertain only the procedures of its own act
to raise an arbitrability question, although it will answer the question by referring to the
federal act in an interstate commerce or maritime case, while the federal court in any
other kind of case will use the federal act and the federal rules to raise the issue
procedurally but will resolve the issue on the merits by applying the appropriate state
act.
13.
What are the provisions of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards? Obligations to arbitrate (as well as awards in arbitrations
already held) falling under the treaty must be recognized both in state and federal courts.
The treaty applies only to commercial transactions and governs principally when citizens
of different signatory nations are involved.
14.
Name the conditions for the recognition of the foreign arbitration award. The
general rule is that an arbitration award is entitled to recognition like a judgment. If the
award is that of an arbitration panel duly constituted under the law of the place where it
sits, and the parties have submitted to arbitration voluntarily (or, today, if they have been
submitted to it by state law in one of the burgeoning areas of compulsory arbitration,
such as certain labor situations or some no-fault cases in tort), the resulting award, if
recognized at home, must be recognized elsewhere.
15.
What procedure relating to the recognition of arbitration awards is usually
supplied by states? Name the reasons for its implementation. A state will often supply a
procedure whereby an arbitration award rendered locally can be converted into a
regular court judgment, thereby being entitled to exploit the enforcement devices
applicable to judgments. It is a good idea to invoke such a procedure, if available in a
rendering state, before going outside for recognition and enforcement elsewhere. A
second forum unwilling to recognize and enforce an arbitration award coming directly
out of forum 1 may be of a different mind if it is presented in the form of a duly rendered
forum 1 judgment.
16.
What awards are not given preclusive effect? In some contexts, the Supreme Court
has refused preclusive effect to an unappealed arbitration award, perhaps by indirection
reinforcing the difference between an “unappealed” award and one that has been duly
converted into a court judgment.
17.
What are the main aspects of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards from the international perspective? A treaty to which the
United States and a number of other nations are parties calls for the mandatory
recognition of arbitration awards rendered in a signatory nation. This treaty applies to
commercial disputes. It is also written in Internationalese, which means that it contains a
number of openings whereby recognition can be refused if the award violates some basic
policy of the forum in which it seeks enforcement.
Unit 7.
PROPERTY INTER VIVOS. Part I
Exercise 2.
PROPERTY INTER VIVOS
1. What kind of property is denoted by the term ‘choses in action’?
A ‘chose in action’ is a right (e.g. a right to recover a debt) that can be enforced by legal action.
2. What are ‘choses in possession’?
A ‘chose in possession’ is a tangible item capable of being actually possessed and enjoyed, e.g. a
book or a piece of furniture.
Exercise 3.
1. What do you think about the reasons why the original English classification is inapt for
the purpose of the Conflict of Laws? This classification, being unknown to most systems
of law, since these usually categorise property as either immovable (which term includes
all interests in land and the buildings thereon) or movable, is obviously wholly inapt for
the purpose of the conflict of laws. Therefore, the English courts abandon their domestic
classification and for that purpose adopt the distinction between immovables and
movables.
2. What is the difference between contractual issues and proprietary questions? It is vital to
distinguish between contractual issues (if there is a contract) and proprietary questions.
The former issues are governed, in principle, by the applicable law of the contract, but
the proprietary issues by the lex situs of the property.
3. Explain the term ‘title to property’ in your own words. A person’s right of ownership of
property. Someone with a good title has adequate evidence to establish his right.
Exercise 5.
abandon the domestic classification отходить от внутренней классификации;
succession to movable property наследование движимого/недвижимого имущества;
contractual issue вопрос, вытекающий из договора;
proprietary question вещно-правовой вопрос;
be imposed by law быть установленным законом;
be in contempt of court проявлять неуважение к суду;
equitable relationship отношение, основанное на праве справедливости;
fiduciary relationship отношение, основанное на доверии;
incumbent on лежащий, возложенный на (об обязанности и т. п.);
fraudulent and unconscionable conduct вводящее в заблуждение и незаконное поведение
Exercise 6.
исполнить обязательства discharge obligations;
уведомить give notice;
осуществлять юрисдикцию exercise jurisdiction;
судебный приказ об исполнении в натуре, реальном исполнении decree of specific
performance;
усмотрение (суда) discretion;
передавать правовой титул на долговое обязательство правопреемнику confer title to the
debt on the assignee;
относящийся к передаваемому праву related to the right assigned;
право, регулирующее договор law governing the contract;
право, применимое к договору law applicable to the contract;
дарение, дар gift
наложить арест на долговое обязательство attach a debt
Exercise 7.
1. real property 2. personal property 3. movables 4. tangible property 5. intangible property
6. lex situs
Exercise 8.
NB Выделенные жирным шрифтом речевые коннекторы факультативны и могут быть
заменены любыми другими, подходящими по смыслу.
1. .......... в английском внутреннем праве собственность по историческим причинам
подразделяется на реальное и персональное имущество. It is pointed out that in
English domestic law property is for historical reasons categorised into real and
personal property.
2. Эта классификация совершенно не подходит для коллизионного права. ………
английское суды от нее отказываются и признают различие между движимым и
недвижимым имуществом. This classification is wholly inapt for the purpose of the
conflict of laws, Therefore, the English courts abandon it and adopt the distinction
between immovables and movables.
3. ……… вопросы, относящиеся к договору, регулируются правом, применимым к
данному договору. It bears saying that contractual issues are governed by the
applicable law of the contract.
4. ......... они регулируются законом места нахождения имущества. As regards the
proprietary issues, they are governed by the lex situs of the property.
5. ……… необходимо провести различие между добровольной и принудительной
передачей прав на имущество. It is suggested that the division must be made between
voluntary and involuntary assignments.
6. ……… нормы, регулирующие право на нематериальное движимое имущество не
так ясны, как нормы, регулирующие право на материальное движимое имущество.
Obviously, rules relating to title to intangible movables are not as clear as those relating
to tangible ones.
7. ……… в Англии подается мало исков, касающихся права на недвижимое
имущество, находящееся за рубежом. It is emphasized that English cases concerning
title to foreign immovable property are few.
Exercise 9.
1)
2)
3)
4)
5)
6)
property, domestic, real, personal
immovable, movable, tangible, intangible
entitled, movables, domicile, immovables, lex situs, immovables
title, lex situs, movable
tangible
contractual, proprietary
Exercise 12.
1. What is the first question concerning title to property? How are these rights
categorized? The first question concerning title to property is how rights therein are
to be characterised. In English domestic law they are for historical reasons
categorised into real and personal property.
2. Is this classification adopted by English courts? The English courts abandon their
domestic classification and for that purpose adopt the distinction between
immovables and movables.
3. Why do the English courts abandon their domestic classification for the purposes of
Conflicts? This classification, being unknown to most systems of law, since these
usually categorise property as either immovable (which term includes all interests in
land and the buildings thereon) or movable, is obviously wholly inapt for the purpose
of the conflict of laws.
4. Explain the term ‘title to property’. What is it governed by? Title to property is, in
general, governed by its lex situs, whether it is immovable or movable, except that
succession to movable property is governed by the law of the last domicile of the
deceased.
5. What question should necessarily be answered before one starts dealing with property
assignments? It is vital to distinguish between contractual issues (if there is a
contract) and proprietary questions. The former issues are governed, in principle, by
the applicable law of the contract, but the proprietary issues by the lex situs of the
property.
6. Why are the legal matters relating to title to intangible movables so difficult to
interpret? The difficulty, which pervades this topic, stems from two sources of
confusion. One is the failure to distinguish clearly between questions, which are
related to the right assigned, and questions related to the assignment itself. The other
is the failure to distinguish between proprietary and contractual issues.
7. Explain these difficulties invoking the example given in the text (the assignment of a
right to recover a debt). Although some questions are contractual the assignment of a
right to recover a debt has proprietary effects, as does a contract to sell a car, and
the tendency to regard the questions as mostly contractual may be thought to lead to
an overemphasis on the law governing the contract rather than on the lex situs.
Moreover, the interest in question may arise not out of a contract but by law, and
there may be no contract for the assignment. It may be either by way of gift, or it may
be involuntary, when it is imposed by law.
8. In what way is it proposed to deal with matters relating to title to movable property?
It is proposed to deal first with voluntary assignments, and to divide the discussion
between issues, which are connected with the interest assigned, and those, which
depend on the assignment itself.
9. What two categories can the interests assigned be divided into? Interests arising out
of a contract and those which do not arise out of a contract, for example, an
intellectual property right or a cause of action.
10. What law governs the issues connected with the interest arising out of a contract?
Article 12(2) of the Rome Convention on the Law Applicable to Contractual
Obligations, 1980.
11. What does Article 12(2) of the Rome Convention on the Law Applicable to
Contractual Obligations, 1980 provide on the point? The law governing the right to
which the assignment relates shall determine its assignability, the relationship
between the assignee and the debtor, the conditions under which the assignment can
be invoked against the debtor and any question whether the debtor's obligations have
been discharged.
12. What are the methods of determining the applicable law? What does their application
depend on? The applicable law will be determined by the rules laid down in the Rome
Convention if the contract out of which the right arises is one, which falls within the
Convention. If it is not within the Convention, the applicable law will have to be
determined by reference to the rules of common law.
13. What is the assignment of an intangible? The assignment of an intangible is a
transaction between the assignor and the assignee.
14. What authority are the contractual issues relating to the assignment of an intangible
governed by? Article 12(1) of the Rome Convention now makes it clear that, in so far
as the assignment is by way of contract (and if it is by way of gift the choice of law
rules for contracts can be applied by way of analogy), contractual issues are decided
by the law which governs the contract of assignment and not by that which governs
the interest assigned.
15. Why is the issue of the proprietary effect of an assignment of an intangible movable
so complicated? The proprietary effect of an assignment of an intangible movable
should be governed by its lex situs. The Rome Convention is only concerned with
contractual obligations and it is quite possible to have a contract of sale governed by
one law and its effect on title governed by another. So it could be argued that,
assuming an assignment is valid by virtue of Article 12(1) of the Convention, it does
not operate so as to confer title to the debt on the assignee if by the lex situs it does
not do so.
16. What rules determine priority between successive valid assignments in different
jurisdictions? Priority between successive valid assignments of the same interest is in
English law determined by the rule that the first assignee to give notice to the debtor
will obtain priority provided that when he took his assignment he knew of none
preceding it. Other systems of law may have different rules, as, for example, giving
the first assignee in time priority.
17. What are the possible choice of law rules relating to the relevant priority? (1) the law
of the place of the assignments; (2) their applicable law; (3) the applicable law of the
debt; (4) its lex situs; and (5) English law as lex fori.
18. What is an involuntary assignment? An involuntary assignment is one, which occurs
without the agreement of the assignor and assignee.
19. Name the rules governing involuntary assignments. (1) Garnishee orders. (2)
Priorities.
20. Name two exceptions where the English courts have jurisdiction to decide cases
concerning title to foreign immovable property. (1) Where the English court is
exercising jurisdiction and administering an English trust or will which consists in
whole or in part of foreign land and question of title thereto arises incidentally. (2)
The English courts can act in personam upon a person within their jurisdiction to
enforce a personal obligation incumbent on him when the subject matter is land
abroad, by making a decree of specific performance against him and dealing with
him as being in contempt of court if he disobeys.
21. Explain the application of the second exception. The basic requirements are (a) that
the defendant is within the jurisdiction; (b) that the subject matter of the action arises
out of a contract between the parties, or concerns his fraudulent or other
unconscionable conduct, or arises from an equitable or fiduciary relationship; and
(c) that the act the defendant is ordered to do must not be illegal or impossible by the
lex situs.
PROPERTY INTER VIVOS. Part II
Exercise 1.
1. Explain the meaning of the term ‘gift’. The term “gift” is generally restricted to mean
gratuitous transfers inter vivos (among the living) of real or personal property.
2. What are the requirements to a valid gift? Explain the meaning of each term given in
italics. A valid gift requires: (1) a competent donor; (2) an eligible donee; (3) an existing
identifiable thing or interest; (4) an intention to donate; (5) delivery; i.e., a transfer of
possession to or for the donee and a relinquishment by the donor of ownership, control,
and power to revoke (except in gifts mortis causa; i.e., those that are made by someone
believing himself to be near death and that become final only if the giver dies); and (6)
acceptance by the donee. Anglo-American law acknowledges implied acceptance.
3. What is the difference between a gift and a contract? In Anglo-American law a promise to
make a gift is not a binding contract, because it lacks the essential element of
consideration (the requirement that to be valid a contract must involve a bargained
value).
4. Name the main elements of the donative conveyance of movables according to the
traditional doctrine. The traditional doctrine holds that there has to be delivery, a
transfer of possession of the thing accompanied by donative intent on the part of the
donor, and acceptance by the donee. Acceptance will be presumed, but evidence of both
delivery and donative intent has long been thought to be essential.
5. What aspects of this doctrine form the major source of confusion? Situations where the
donative intent is clear but the thing in question is awkward or impossible to deliver.
6. What law governs the validity of the transfer of movables? The validity of the transfer
will be governed by the law of the place where the transfer is made. It is also permissible
to accompany the gift with a writing selecting the law to be applied, and the general rule
here as in contract cases is that if the law selected is that of a reasonably related
jurisdiction, the choice will be honored.
7. What are the particularities of the transfer of tangible and intangible personal property?
The rule that a gift of personal property will be governed by the law of the place where
the gift is made is readily applied to tangible property, including interests embodied in
written instruments when the instrument paper is deemed the property. The rule also
applies to intangibles, but if the property is intangible it will usually take a paper of some
kind to effect the gift, as where it consists of a patent right or royalties.
8. Name the law that regulates the transfer of the interest embodied in a formal instrument?
If the interest is embodied in a more formal instrument, such as a check, note, bill,
certificate of title or stock or the like, the instrument, as indicated, is likely to be deemed
the property and a gift of it will be adjudged by the law of the place of its delivery.
9. What official document reduces choice of law problems in the US? The Uniform
Commercial Code and especially its Article 3 on commercial paper.
10. What are the particularities of the UCC application? Whether a gift can be shown to be
within the substantive reach of the UCC or not, however, the UCC is not everywhere
applicable, nor necessarily given the same construction in states where it does apply, and
so it does no harm to see that the method of a paper’s transfer satisfies not only the law
of the place where the transfer is made, but also the law of such other place as may have
some say about the paper involved.
11. Give an example illustrating the rule of validation. If the transfer is made by the donor in
State R sending the chattel to a donee in State E, and the donor is a competent adult and
the transfer is clearly voluntary, the law of State E will usually govern if the laws of the
two states differ, or – more than likely today in view of the apparent wishes of the donor
to make a gift of the property – it will be sustained if valid by the laws of either place.
12. Giving an example, explain in which state the interests in a chattel perfect. Interests in a
chattel perfect in State R before the chattel is carried into State X, persist in State X and
will be recognized there.
13. Why is the issue of secured transactions treated separately? While the rule of validation
presumably applies to property subjected to security interests in State R before removal
of the property, the issues are never that simple in the “secured transactions” category,
and some extra precautionary steps may be advisable.
14. Why is it stated that gifts of real property have caused less difficulty in Anglo-American
jurisdictions? It is well established that a writing (deed) is necessary for the transfer of
title to real estate; it is common for deeds to recite at least nominal consideration, but no
preliminary contract is required for title to pass.
15. What law governs transfers of immovables and why? The immovability of realty has
given primacy to situs law, so that anything a lawyer does to effect a transfer of any
interest in real property should satisfy the law of its situs first and foremost, and in
respect of both form and substance.
16. Explain what the reference to situs law means in this context. Since the situs must as a
practical matter be respected for almost anything concerning realty, it is appropriate – if
the situs wants the law of some other place applied because of a given element present on
the facts – to apply that other law. For this reason the Restatement’s position is that the
whole law of the situs, including its choice of law rules, governs.
Unit 8.
SUCCESSION IN CONFLICT OF LAWS. Part I
Exercise 6.
verb
administer
inherit interstate
succeed intestate
legate
noun (person)
administrator
intestate
noun
administration
intestacy
adjective
administrative
intestate
legatee
legatary
succeed
successor
legacy
legate
succession
Exercise 7.
testator – testatrix- завещатель, наследодатель - завещательница, наследодательница
administrator – попечитель над наследственным имуществом, душеприказчик,
администратор наследства - administratrix (administratress) –– попечительница,
душеприказчица
executor – душеприказчик, исполнитель завещания - executrix – душеприказчица,
исполнительница завещания
Exercise 8.
Probate refers to the court process by which a will is proved valid or invalid or the legal
process wherein the estate of a decedent is administered.
Probation refers to (1) a process or period in which a person's fitness, as for work or
membership in a social group, is tested; (2) the act of suspending the sentence of a person
convicted of a criminal offense and granting that person provisional freedom on the promise of
good behavior; (3) a discharge for a person from commitment as an insane person on condition
of continued sanity and of being recommitted upon the reappearance of insanity; (4) a trial
period in which a student is given time to try to redeem failing grades or bad conduct; (5) the
status of a person on probation.
Exercise 10.
A – 2; B – 1; C- 4; D – 5; E - 3
Exercise 11.
Will – military, holographic, ill, the earlier, the validity of, reciprocal, of the decedent, to make,
disputable, disputed, the later, probated
Testament – sea
Exercise 12.
1. What is being characterised here? A distinction must be made between the administration
of an estate by the personal representatives and its distribution among those entitled to it.
2. What are the two main stages of dealing with the estate of the deceased person? The
administration of an estate by the personal representatives and its distribution among those
entitled to it
3. What does the administration activity include? It includes collection of debts due by the
estate and other matters of management, such as the power of English administrators to
postpone sale of estate property, and power to make payments out of the estate for the
maintenance and advancement of minor beneficiaries.
4. What is meant by distribution? Once administration is completed, the estate must be
distributed to those entitled to it.
5. Who are beneficiaries? Any person or entity who is to receive assets or profits from an
estate, in which there is distribution(e.g. minors) (syn.: heir, inheritor, legatee,
successor, devisee, grantee).
6. What is “estate”? When used in connection with probate proceedings, the term
encompasses the total property that is owned by a decedent prior to the distribution of
that property in accordance with the terms of a will, or when there is no will, by the laws
of inheritance in the state of domicile of the decedent. It means, ordinarily, the whole of
the property owned by anyone, the realty as well as the personalty.
Exercise 13.
1. What law rules are distribution of movable and immovable property of the deceased and
matters of administration governed by? Succession in the sense of distribution is
generally governed by the lex situs in the case of immovables and the lex domicilii of the
deceased in the case of movable property.
2. What instruments does the personal representative have to obtain for their power to act?
English courts have jurisdiction to make a grant of representation if the deceased left
property in England, and such a grant will normally extend to all his property wherever
it is situated.
3. What is “nil grant”? A grant that could be made even if there was no property in
England.
4. In what case is the ancillary grant necessary? If a foreign personal representative seeks
an English grant on the strength of his foreign grant, he will normally ask for an
ancillary grant and English courts will follow the decision of that of the deceased's last
domicile.
5. Where do surplus assets go? If an English grant is ancillary to a foreign grant of
representation, the English representative will normally be allowed to hand over any
surplus assets after the creditors have been paid off to the principal administrator
appointed under the law of the last domicile if he is a different person.
6. What may restrain handing over the surplus assets to the administrator? An ancillary
English grant may, however, restrain handing over the surplus assets to the
administrator if it would result in benefiting persons who have no claim in English law,
such as a creditor whose claim is time-barred or a person who would receive under a
will void by English law.
Exercise 14.
1. What is succession to movables governed by? Succession to movable property is
governed by the law of the last domicile of the deceased.
2. What is intestacy? What is it governed by? Intestacy means the state or condition of
dying without having made a valid will or without having disposed by will of a segment
of the property of the decedent. The law of the last domicile governs intestacy.
3. What problem arises in default of successors? If, under the law of the country of the last
domicile, the foreign state, government or treasury would take the deceased's property in
default of successors, by way of bona vacantia or jus regale (what are known as
'caduciary' rights), the Crown will take the property. But if it would be entitled under its
law to take by way of succession in the absence of anyone else entitled to succeed it will
be entitled to claim the property in England.
4. What do the cases considered in the text illustrate? In Lynch v. Provisional Government
of Paraguay it was held that Lopez's will, being valid by Paraguayan law when made and
when he died, was not invalidated by the subsequent change in that law. In Re
Maldonado it was held that the Spanish state was entitled to his property here, to the
exclusion of the Crown. The decision has been severely criticised as an extreme example
of characterisation by the lex causae by paying too much attention to the wording and
appearance of that law, rather than to its true object and effect.
5. In what kind of states can jus regale be used? In the foreign state, government or treasury
that would take the deceased's property in default of successors by way of bona vacantia
or jus regale (what are known as 'caduciary' rights).
Exercise 15.
1. What kinds of capacity are considered in the text? Capacity to make a will, capacity to
take as a legatee.
2. What laws are they determined by? Capacity to make a will is determined by the law of
the domicile of the deceased; capacity to take as a legatee is determined by the law of
the testator's last domicile or by that of the legatee's domicile, whichever is the more
favourable.
3. What kinds of validity does a will require? Formal and essential validity
4. What is formal validity governed by? Formal validity of wills was governed at common
law by the law of the testator's last domicile.
5. What is essential validity governed by? The essential validity of a will is governed by the
law of the last domicile.
6. What is the role of the testator in interpretation of the will? Interpretation or construction
of wills of movables is governed by the law intended by the testator. In the absence of an
express statement that some other law is to govern, or wording which suggests that that
was his intention, this is presumed to be the law of his domicile at the time he made the
will.
Exercise 16.
1. What are the three ways of revoking a will under English law? Under English law the
will may be revoked by (a) an act of revocation, such as burning, tearing up or otherwise
destroying it; (b) change of circumstances: by the Wills Act 1837, section 18, it is usually
revoked ipso facto by a subsequent marriage of the testator; (c) the execution of a later
will or codicil. These require separate consideration.
2. What law is revocation of wills of movable property governed by? By the law of the
testator's domicile at the date of revocation.
3. Can you illustrate or just explain the meaning of each of the three ways of revocation?
The will may be revoked by (a) an act of revocation, such as burning, tearing up or
otherwise destroying it; (b) change of circumstances: by the Wills Act 1837, section 18, it
is usually revoked ipso facto by a subsequent marriage of the testator; (c) the execution
of a later will or codicil.
4. What are testamentary acts? This question really involves the validity or interpretation of
a will or other testamentary act. A later will or codicil may expressly revoke an earlier
will, or may impliedly do so, as where its provisions are inconsistent with those of the
earlier will.
5. What is the difference between express and implied revocation? Whether a will is
expressly revoked by a later will or codicil depends on whether the later instrument is
valid under the law governing the matter, generally that of the testator's last domicile.
When the second instrument does not expressly revoke the first but their provisions are
mutually inconsistent, the question is one of interpretation of the second instrument, so
whether it was meant to revoke the first is a question answered by the law of the testator's
domicile when he created the second one.
Exercise 17.
1. What does the lex situs govern as far as succession to immovable property is concerned?
The lex situs governs intestate succession.
2. Does it govern the interpretation of a will of immovable property? No, interpretation of a
will of immovables is governed by the law intended by the testator.
3. What is meant by disposition of land? The act of disposing of land; transferring the land
to the care or possession of another
SUCCESSION IN CONFLICT OF LAWS. Part II
Exercise 3.
1. What question is of major importance in succession by will? Whether the will is valid.
2. What is the most obvious place whose law is to govern the issue of post-death transfer of
personal property by will? The most obvious place is the decendent’s final domicile.
3. Under what circumstances will the instructions of the will be carried out? If the will
satisfies domicile law in respect of execution and formalities and all of the decedent’s
personal property is located there, instructions of the will on distribution wiil be carried
out.
4. Im what case may the validity of the will as subject to the law of the decedent's domicile
come in issue? Should court proceeding to get possession of property located in different
states be necessary, and assuming that ancillary letters have been obtained if required,
the validity of the will may come in issue.
5. What actions may become necessary for the personal representative in case the decedent's
property is found in various states? It may be necessary for the personal representative to
go to the state (or states) in which personal property was left and bring a court
proceeding there to get possession of it and have ancillary letters issued there.
6. What may happen in a probate proceeding in a state different from the decedent's
domicile? A will valid when and where made might be rejected by another state,
frustrating the testator’s intentions entirely.
7. What is the remedy to avoid the contradicting probate decisions of several courts? Most
states have adopted a uniform will code that recognizez a will as long as it is valid under
the law of any of several likely places.
8. What recommendation is given to a lawyer drafting a will? To check into the execution
rules of places where the client has or is likely to have substantial property.
9. How will the decedent's personal property be usually distributed in intestacy? It will
usually be distributed according to the laws of intestacy in decedent’s final domicile
10. Is the law of the decedent's last domicile stipulated in the US Constitution? According to
the Text, the rule that, if the decedent dies intestate, her personal property will usually be
distributed according to the laws of intestacy in her final domicile, is sometimes deemed
the product of constitutional demand.
11. What is the Restatement's position as regards succession in intestacy? The Restatement’s
position is that a reference to domicile law for rules on intestate distribution of personal
property is intended to be to the domicile’s whole law, including its choice of law rules.
Unit 9.
FAMILY LAW IN CONFLICTS. Part I
Exercise 1. Read Text 1 to analyze the logical organization of the text and to decide which
subheading given below goes with which section of the text. Choose one subheading for
each space (letters A-D)
1 – C; 2 – A; 3 – B; 4 – D
Exercise 2.
1. Formal requirements of a valid marriage include such matters as: the marriage
ceremony and its components; necessity for presence in person or by proxy;
necessity for parental consent.
2. Validity of marriage by proxy is determined by recourse to the lex loci celebrationis.
3. The law of the parties domicile at the time of the ceremony and the law of the
intended matrimonial home.
4. After the Matrimonial Causes Act 1973 lack of consent renders a marriage voidable.
5. Physical incapacity such as impotence.
Exercise 3.
1. False – the marriage was held invalid because it did not comply with the formal
requirements of French law.
2. False – the marriage was rendered valid because it complied with the law of the
place of the ceremony (Akan law).
3. True
4. True
5. False – legal capacity to marry is generally held to be governed by the parties’ domicile
or the personal law.
6. True
Exercise 4.
the ground of invalidity of marriage основание для признания брака недействительным
to comply with the requisite formalities соответствовать необходимым формальным
требованиям
to consent freely and knowingly согласиться добровольно и сознательно
to accord with the parties’ personal law не противоречить личному закону
in the mistaken belief ошибочно полагая
expert evidence свидетельские показания специалиста
to be the subject of considerable academic argument являться предметом спора среди
правоведов
to render void делать ничтожным, лишать юридической силы
to be consistent with the facts соответствовать фактам
apparently in place of the intended matrimonial home doctrine очевидно, вместо
доктрины предполагаемого местожительства семьи после заключения брака
the presence of duress наличие принуждения
by reason of по причине
to afford grounds for a nullity decree давать основания для вынесения судебного
решения о признании брака ничтожным
Exercise 5.
лицо, не достигшее определенного возраста a person under a certain age
заключать брак to conclude a marriage, to celebrate/to perform a marriage
бракосочетание по церковному обряду a religious ceremony
Тайный совет the Privy Council
повторно подтвердить to reaffirm
в том смысле, что to the effect that
лишать брак юридической силы to vitiate a marriage
признать брак действительным to hold a marriage valid
право на пособие одному из супругов right to matrimonial relief
степень родства, запрещенная законом the prohibited degrees of relationship
закон совместного места жительства в соответствии с намерениями супругов the law
of the intended matrimonial home
основание для признания брака ничтожным a ground for nullity of marriage
неудачный пример практического применения квалификации an unsatisfactory
exercise in classification
получить согласие родителей to obtain parental consent
невыполнение требования non-compliance with a requirement
критерий, учитывающий домициль вступающих в брак the ante-nuptial domicile test
гражданская церемония, соответствующая требованиям французского права a civil
ceremony as required by French law
Exercise 6.
1 – B; 2 – C; 3 – C; 4 – A; 5 – C; 6 – B; 7 – B; 8 – D; 9 – A; 10 – D; 11 – B; 12 – D
Exercise 9.
1. What has changed in the choice of law rules for marriage since 1860? Since 1860 the
old rule of English conflict of laws that the conclusion of a marriage was a matter
for the law of the place where it was celebrated has been confined to questions of
formalities of marriage.
2. What marriage is recognized as valid by English law? There are four requirements
of a valid marriage: (i) that the requisite formalities are complied with; (ii) that the
parties have legal capacity to marry each other; (iii) that they freely and knowingly consent to do so; and (iv) that the marriage is consummated.
3. Why should a line be drawn between the formal and essential validity of marriage?
The questions of formal and essential validity are governed by different choice of
law rules for marriage.
4. What factors may lead to nullity of marriage by English law? Such factors as lack of
marital capacity and non-compliance with certain formalities.
5. On what grounds may the parties to a marriage be denied marital capacity? On the
following grounds: lack of marital age, the prohibited degrees of relationship, either
party was already married.
6. What is the author’s view of the court’s decision in McCabe v. McCabe? In the
author’s view the Court of Appeal proceeded on the assumption that Akan law as the
lex loci celebrationis should be applied and it did not consider whether the locus
celebrationis was Ghana law or whether it was England.
7. What marriage may be rendered voidable by English law? A marriage is voidable
for impotence, willful refusal to consummate, lack of consent, or if at the time of the
marriage one party was suffering from mental disorder or venereal disease or being
the wife was pregnant by some other man.
8. What factors may vitiate the parties’ consent to marry each other and what law
determines this issue? Such factors as the presence of duress or mistake as to the
identity of the other party or the nature of the ceremony, and ignorance that at the
time of the marriage he or she was suffering from mental disorder or venereal
disease or, in the case of a woman, that she was pregnant by some other man.
9. What choice of law rules for marriage are discussed in the text and which of them
are the subject of academic argument and judicial disagreement? Such rules as the
law of the place of celebration and the personal law of the parties to a marriage;
there is no agreement about which law actually governs personal capacity to marry:
whether it is the laws of the parties’ antenuptial or postnuptial domicile, or the law
of the country with which the marriage has a real and substantial connection .
10. What is the role of the parties’ personal law in deciding the issues of the validity of
marriage? The personal law, or in English conflict of laws the law of the domicile,
plays a significant role in determining the issues of the essential validity of a
marriage, such as capacity of persons to marry.
11. What decided cases considered by the author are an example of the conflict of
characterization in different legal systems? Two cases such as Simonin v. Mallac
and Ogden v. Ogden and in both cases the question in issue was whether parental
consent should be characterized as a matter of formal validity or essential validity,
for example, by English law parental consent to the marriage of a person under a
certain age is a matter of form, while under French law this issue is characterized as
a matter of personal capacity to marry.
12. What aim does the author have in mind when commenting on the cases of Ponticelli
v. Ponticelli, Robert v. Robert and de Reneville v. de Reneville? He makes
comments on these cases for two reasons: to support his proposition that some
choice of law rules for marriage are somewhat complex and difficult to state with
confidence and to reveal the inconsistency of the courts’ decisions on this point.
FAMILY LAW IN CONFLICTS. Part II
Exercise 1.
1 – E; 2 – D; 3 – F; 4 – B; 5 – A
Exercise 2.
1. What is marriage in the eyes of English law? English law regards marriage as being
a ‘voluntary union for life of one man and one woman.
2. What marriage does English law consider polygamous? Marriages in which
husbands may have more than one wife at the same time.
3. What view did the English court take in respect of polygamous unions in the past?
Such unions were not recognised as a marriage.
4. Why did the court refuse to dissolve Mr. Hyde’s marriage? Because his Mormon
union at that time was not a marriage as understood by the Divorce Court; in
respect of such unions no matrimonial relief could be granted.
5. What marriage is potentially polygamous? A marriage is potentially polygamous if
there is only one spouse but the marriage was contracted under a system of law that
permits polygamy.
6. What has changed in the English courts’ approach to polygamous marriages in
recent years? They appear to have drawn back from regarding all polygamous
unions as not being marriages.
7. Why is it difficult to state with certainty what law determines whether a marriage is
monogamous or polygamous? A number of factors must be analyzed: the law of the
place where the marriage was celebrated, its nature and its incidents under a system
of law.
8. What other choice of law rules may be chosen to govern this issue? It has sometimes
been suggested that the personal law should decide this question.
9. What changes in circumstances may affect the character of marriage and how? If
the marriage was monogamous at its inception it remains so even though it could
become polygamous later, but a marriage which is potentially polygamous at its
inception can, provided it is not actually polygamous, become monogamous in the
following circumstances: conversion to a faith which allows only monogamy, a
change in the law of the country where the marriage was celebrated so as to
prohibit polygamy and a change of domicile to a country which does not permit
polygamy.
10. Why was the husband’s petition for a divorce decree in Ali v. Ali denied? The
Court’s refusal to grant the husband a divorce decree was based on the following
reason: it held that by his change of domicile to England in 1961 the parties’ potentially
polygamous marriage had become monogamous, but before that time in 1959, at the date
of the commencement of proceedings, their polygamous union could not be regarded as a
marriage by English law, therefore, the Court of Appeal could not grant matrimonial
relief in respect of such a union.
11. What law is generally chosen to govern capacity to contract a polygamous marriage? The
majority rule is that it should be the law of the parties’ ante-nuptial domicile.
12. What changes respecting capacity to contract a polygamous marriage were recommended
by the Law Commission and for what reason? Since the existing rules of the common
law in this area were somewhat unclear and complex and often gave rise to inconsistent
decisions, the Law Commission recommended to Parliament that the law should be
changed so as to restrict incapacity to actually polygamous marriages. This
recommendation was enacted into law by Part II of the Private International Law
(Miscellaneous Provisions) Act 1995 and by amendment of Section 11 of the Matrimonial
Causes Act 1973.
13. What rule applies to the recognition of polygamous marriages? Under the present law the
courts will recognize a polygamous union as a marriage, unless there is some good
public policy reason to the contrary.
14. How can the recognition of polygamous marriages by English law affect the rights of the
parties to such unions? According to the statutory provisions the parties to a recognized
polygamous marriage are entitled to matrimonial relief, social security and benefits.
Besides, children of a polygamous marriage may succeed on intestacy.