ENGLISH FOR STUDENTS OF PRIVATE INTERNATIONAL LAW
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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.
