Conflict of Laws LA3014 Exam Paper Report 2016 ZAB PDF

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Examiners’ reports 2016

Examiners’ reports 2016 LA3014 Conflict of laws Introduction The technique for dealing with the Conflict of laws examination questions is fundamentally similar to the one utilised for other law subjects. As such, the most important requirement for answering law questions, whether these are essay or problem questions, is that the arguments put forward must be backed up with authority. This means that students will be required to memorise a considerable number of cases, and for exam purposes they should be able to cite the name of the case and briefly describe the facts as well as the legal principle which the case established. A further point to be made is that, as it is quite typical in law examination questions that there is not usually a right or wrong answer, what matters is that candidates demonstrate knowledge of the area of law. It should be noted that high marks will be awarded when students cast their own critical eye in relation to the issues at hand. Time management is very important in exam situations, so any time spent reading the questions and planning answers before starting will help maximise on knowledge and understanding of the topics. Students should always remember that even if they know less about a specific question that they would like, they are still likely to write better answers if they adopt a more planned approach, manage their time appropriately and avoid spending too much time on any one question. When it comes to essay questions, what is usually required is an evaluation of the present state of the law, which highlights any areas of ambiguity around the topic. This enables the student to show knowledge of the law by identifying the legal issues and policy considerations relating to the essay topic. Essay questions will almost always require the student to analyse the factual content, highlight any problem in the law and suggest possible reforms. The presence of terms like ‘critically discuss’ or ‘critically evaluate’ in a question signifies that students should adopt an analytical approach and avoid a mere description of the situation. Whereas it is not mandatory to cast a critical eye on every provision described, a discussion should nevertheless take place and students should not hesitate or be afraid to apply an opinion of their own. Finally, the importance of structure in an essay question should not be underestimated. Whereas the precise structure will depend on the question, an essay should have an introduction, main discussion and a conclusion, and if a question is divided into two or more parts, that structure should be reflected in the student’s answer. Unlike essay questions, problem questions would not normally require students to address complex theoretical issues and that could sometimes make them easier to answer. Nevertheless, what is often observed is that, when dealing with problem

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questions, students face timing issues. That takes the form of allocating excessive time to minor or irrelevant issues, with the end result being that not enough time is left to address the main issues. The first task when dealing with a problem question is to read the question thoroughly and ensure that particular attention is paid to the words that are used to describe the situation. It should always be borne in mind that, what examiners are looking for is an understanding of the law and an ability to apply it to the particular facts given. An important point to make here is that, whereas problem questions are not usually seeking a critical analysis of the law, it is always useful that students provide their own view on the situation, particularly when the area of law under consideration is problematic. In terms of structure, introduction and conclusion are less important for problem questions than for essay questions. An introduction can simply take the form of highlighting the issues raised by the question or, when students are asked to ‘advise’ a person, what kind of outcome that person will be looking for. A conclusion is not always necessary but may nevertheless be useful for the purposes of summarising what has been said. As far as the main part of the answer is concerned, it may be appropriate to deal with the problem chronologically, or it may be suitable to group particular issues together. In any case, the order is of no significance as long as the proper discussion takes place. Sometimes, a problem question can appear daunting because of the number of issues that need to be addressed in the time available. It is a crucial step in an examination situation to formulate a complete answer in that respect and a suggestion to achieve this is to draw a diagram or chart, which sets out the problem and the issues. This will help to distinguish the most important issues from the less significant ones and may even lead to some of the issues initially identified not being included into the final answer. A well-planned answer should ensure that only considerations of major importance for the issue at hand are taken into account.

Comments on specific questions Question 1 ‘The field of conflict of laws is filled with concepts that sound strange even to the ear of a trained lawyer. Amongst the strangest of these is that of “renvoi”.’ Discuss this statement with reference to the relevant case law of the English courts. General remarks Students should be able to distinguish between double and single renvoi. Additionally, mention should be made to total renvoi as applied by English courts, as well as the option that courts in different jurisdictions have to simply ignore the issue entirely. Law cases, reports and other references the examiners would expect you to use Collier v Rivaz (1841), Re Annesley (1926), Re O’Keefe (1940) and R v Brentwood Superintendent Registrar of Marriages (1968).

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Examiners’ reports 2016

Common errors No clear distinction between the different variations of renvoi. Failure to provide sources and references to the relevant case law. A good answer to this question would… demonstrate a clear understanding of the different variations of renvoi. Highlight the different academic views on the suitability or otherwise of the concept in conflict of laws situations and provide a critical analysis. Quote an adequate number of cases decided by English courts. Poor answers to this question… would be descriptive with no critical analysis of the issue at hand and limited or no reference to the relevant case law. Student extract Indeed, I would agree with the above statement that the concept of ‘Renvoi’ is amongst the strangest concepts in the realm of conflicts of law so much so that well known academicians like Webb, Morris, Dicey and Collins advocate its abolishment. ‘Renvoi’ is said to be a concept loved by academicians, hated by students and very often (when observed) ignored by practicing lawyers and judges. As Adrian Briggs notes in his article ‘In Praise and Defence of Renvoi (1998),’ Renvoi has been discussed by lawyers in a rather hastily [sic] manner as if discussing something that people are ashamed of. The beguiling question is what is so strange about Renvoi that it should be avoided in the fields of conflict of laws or should it be retained as advocated by Adrian Briggs. The concept of Renvoi is a French term, which simply means ‘send back’. In precise terms, it means when a choice of law rule of a particular country points back to the forum court or another jurisdiction to apply their law. Therefore the application of Renvoi means looking at the totality of the law of a particular country which includes both domestic law and their conflict rules. Comments on extract The student begins by making a direct statement in response to the issue at hand. This can be a good approach to dealing with an essay question as long as the student’s view is supported by adequate evidence. In this case a good number of academic views on renvoi are quoted, which is an indication of an understanding that this indeed is a concept the application of which has sparked considerable debate. The student then goes on to provide a definition of renvoi. It could be argued that, from a structural point of view, the response would be more sound if the definition of the concept and its variations (single and double or total renvoi) constituted the introductory statement, followed by the supporting arguments. Whereas, then, these opening paragraphs offer room for improvement there is a good deal to credit as it is clear that the student has a good grasp of the concept of renvoi. Question 2 ‘The domicile of origin when contrasted with the domicile of choice is more enduring, its hold stronger and less easily shaken off.’ Critically discuss this statement. General remarks Students should emphasise the importance of domicile as a connecting factor in the determination of personal status. They should examine the fundamental differences between the domicile of origin and the domicile of choice and refer to the capacity of the domicile of origin to revive.

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Law cases, reports and other references the examiners would expect you to use Bell v Kennedy (1868), IRC v Bullock (1976), Re O’ Keefe (1940), Ramsey v Liverpool Royal Infirmary (1930), Corbet v Fagan (1946) and Re Furse (1980). Common errors Failure to use authority in answers. Mere description of the different variations of domicile without critical analysis. Inadequate or no reference to the capacity of domicile of origin to revive. A good answer to this question would… provide an account of the development of the concepts of domicile of origin and choice as connecting factors and put forward a convincing argument in favour of domicile of origin by providing examples and utilising the appropriate case law. It is important that students engage in a critical discourse about the concepts. Poor answers to this question… would recite all knowledge about the area of law without focus. Superficial or nonexistent comparison of the relevant concepts and insufficient reference to case law. Question 3 ‘Habitual residence may fairly be regarded as having eclipsed domicile, so as to become the most important personal connection of an individual used by English private international law. This trend has developed over the last half century, and its strength continues to increase.’ In light of this statement, critically discuss the development of the concept of ‘habitual residence’ as a connecting factor in the conflict of laws in England. General remarks Students should comment on the emergence of ‘habitual residence’ as a connecting factor in both commercial and personal law. Mention should be made to the Hague Conference on Private International Law, where ‘habitual residence’ was first adopted. Students should provide a definition of the term and demonstrate its application by reference to the relevant case law. Law cases, reports and other references the examiners would expect you to use Re Fuld’s Estate No 3 (1968), IRC v Bullock (1976), R v Barnett LBC ex p. Shah (1983), Re A (1996), V v B (1991), Re J (1990) and Re F (1992). Common errors Failure to consider the Hague Conference on Private International Law and insufficient consideration of the development of habitual residence as connecting factor. Simply describing the concept without engaging into critical analysis. Inadequate use of relevant authority in the form of not naming cases but referring to them as ‘a decided case’. A good answer to this question would… be concise but logical and to the point. It would demonstrate an understanding of the rationale behind the emergence of habitual residence as an important connecting factor and would make proper use of the relevant case law. Poor answers to this question… would be descriptive with limited critical analysis of the issue at hand. There would be lack of focus and limited reference to case law.

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Question 4 Critically examine the circumstances in which an English court will enforce a foreign judgement at common law. General remarks Students should be able to identify the conditions that need to be met in order for a judgment to be entitled to enforcement at common law. They should also be able to explain how English courts treat mistakes made in foreign judgments. Finally, they should list the defences against the enforcement of a foreign judgment. Law cases, reports and other references the examiners would expect you to use Schibsby v Westenholz (1870), Adams v Cape Industries plc (1990), (Emanuel v Symon (1908), Carrick v Hancock (1895), Copin v Adamson (1874), Morguard Investments Ltd v De Savoye (1991), Nouvion v Freeman (1889), Blohn v Desser (1962), Pro Swing v Elta Golf (2007), Godard v Gray (1870), Pemberton v Hughes (1899), in Israel Discount Bank of New York v Hadjipateras (1984), Ochsenbein v Papelier (1873), Drozd and Janousek v France and Spain (1992), USA v Inkley (1989), Jacobson v Frachon (1927), Lewis v Eliades (2004), Vervaeke v Smith (1983), Showlag v Mansour (1995) and Tracomin SA v Sudan Oil Seeds (1983). Common errors Limited or no use of the relevant case law. Mere reference to the conditions of enforcement without critical analysis. Failure to list all of the defences against the enforcement of a foreign judgement. A good answer to this question would… demonstrate an understanding of the reasons behind the need to recognise a foreign judgment at common law. It would use the relevant case law to explain the attitude of the English court when mistakes are discovered and would provide a brief but complete account of all available defences against the enforcement of foreign judgments. Poor answers to this question… would be descriptive with lack of substantive argumentation. They would not refer to the relevant case law and would show limited understanding of the significance of the defences. Question 5 With reference to case law, discuss the extent to which a foreign state is immune from the jurisdiction of the English courts. General remarks Students should be able to explain why state immunity exists. They should mention that it is a firmly established principle, which, however, has been abused, and as a consequence modern legislation imposes important limits on it. They should also comment on whether these limits are sufficient. Law cases, reports and other references the examiners would expect you to use The Cristina (1938), Al-Adsani v UK (2001), Jones v Minister of Interior of Kingdom of Saudi Arabia (2007) Gold Reserve Inc. v Venezuela [2016] EWHC 153 (Comm). Common errors Inadequate reliance on case law in the form of simply mentioning the name of some of the cases with limited or no discussion of the facts of the case and the decision of the court. Failure to demonstrate a clear understanding of the concept of how the abuse of state immunity has led to the imposition of limits by legislation.

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A good answer to this question would… provide an account of the development of the concept of state immunity by referring to the relevant case law. It would offer a critical analysis of the position of the courts and possibly also put forward the view of the candidate. It would particularly focus on and try to explain why modern legislation has imposed limitations. Poor answers to this question… would refer to decided cases without engaging in a constructive discourse about the rationale behind the decisions of the courts. They would recite all knowledge about the area without focusing on the issue at hand. Question 6 From January 2015, Regulation (EU) 1215/2012 [Brussels Regulation (recast)] replaced Council Regulation (EC) 44/2001 (Brussels I Regulation), and as such became the key European instrument on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Explain and discuss the main changes introduced by the new Regulation. General remarks The following key changes made by the Brussels Regulation (recast) should be identified: 

Expansion of the scope of the application of the rules relating to jurisdiction agreements.

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Changes to the related actions (lis pendens) provisions where there is an exclusive jurisdiction clause (amendments are aimed at addressing the problem of the so-called ‘Italian torpedo’).

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New rules concerning third-state matters and defendants.

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An enhanced exclusion of arbitration.

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The abolition of exequatur.

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Changes to the rules relating to consumers and employment contracts.

Law cases, reports and other references the examiners would expect you to use Regulation (EU) 1215/2012 [Brussels Regulation (recast)], Council Regulation (EC) 44/2001 (Brussels I Regulation). Common errors Recital of all knowledge about the Brussels Regulation (recast) without focusing on the key changes. Simply mentioning the key changes without casting a critical eye. A good answer to this question would… following a brief introduction to the new instrument, list the key changes. It would at the same time explain the rationale behind the adoption of each one of the changes and the problems that it they are expected to solve. Extra marks would be given if the student provided his/her own view on whether the changes would actually deliver the desired outcome. Poor answers to this question… be descriptive with a distinct absence of a critical approach in relation to the issue at hand. Such answers would normally be devoid of a discussion about the impetus behind the changes in the new instrument.

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Examiners’ reports 2016

Question 7 Bichelin Ltd is a company based in London, England, that manufactures tyres. Their products are unique as they contain a solution called ‘No Skid’ which, if used as a coating on standard tyres, makes the standard tyres resistant to skidding on icy roads. Among Bichelin’s most valuable customers is ToughTyres Co Ltd with whom Bichelin has had various business dealings over the last 30 years. For most of their contracts entered in the past, the two companies had chosen Canadian statutory provisions and forms as their contractual terms. In November 2014, Bichelin sent an email from Australia to ToughTyres offering to sell them a consignment of tyres. Delivery of the goods was to be made to the subsidiary of ToughTyres in Glasgow, Scotland in two instalments. It was agreed that payment would also be made in two instalments. The first instalment would be made in Sterling and deposited in Bichelin’s bank account in London and the second would be made in US dollars and deposited in Bichelin’s account in Melbourne, Australia. The shipment of the first instalment was delayed because the Australian authorities had refused to grant a certificate of quality in relation to the tyres. As a result, ToughTyres contend that the contract has been frustrated. Discuss how the applicable law to these issues should be determined. How, if at all, would your answer differ if the contract had been made in 2008? General remarks Students should in the first place be able to recognise that, as the contractual situation in question has occurred in November 2014, the applicable law is the Rome I Regulation. They should then discuss the relevant articles of the Regulation in order to identify the law that is most closely connected to the contract. Law cases, reports and other references the examiners would expect you to use Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co (1959), Amin Rasheed Shipping Corp v Kuwait Insurance Co (1984), Byrne v Tienhoven (1880), Bank of Baroda v Vysya Bank (1994) and Jacobs v Credit Lyonnais (1884). Common errors Failure to recognise that the contract in question is not regulated by the Rome Convention. Excessive reliance on Article 3 of the Rome I Regulation (choice of law) with limited or no reference to Article 4 (applicable law in the absence of choice of law). A good answer to this question would… once it established that the contractual relationship between Bichelin Ltd and Tough Tyres Ltd was covered by the Rome I Regulation, initially consider whether the issues at hand could be resolved th...