SEMINAR 7: CHOICE OF LAW

1. What is conflict of law?

It only matters if the applicable laws may lead to different conclusions.
2. Where do we find rules?
3. Is there more than one common law? NO
We focus on common law but there are some statuory limits .
I. CHARACTERISATION:
Rules relating to choice of law dont provide the substantive law, we have to look to the particular laws.
The choice of law rules of the forum the ones that provide indicative rules (leads to application of
application of
Macmillan:
1. Characterize the issue before the court.
2. What is the conflicts rule which laws down a connecting factor.
3. Apply system of law tied by the connecting factor to the issue.
Limitation Act s.78.
A. WHAT IS CLASSIFIED?
B. WHAT ARE THE CATEGORIES?
C. ARE FIXED CATEGORIES OR CAN BE CREATED NEW CATEGORIES? HOW?
D. WHAT IF A DIFFERENT FOREIGN LAW USES A DIFFERENT SYSTEM OF
CLASSIFICATION?
National Bank Greace v Athens

Facts:

o English law bonds issued by Greek bank

o WWII Payments suspended by a moratorium

o After, previous assets of bank to a new bank.

Argument:

o English law proper law bc it governed the bonds an dforeign legislation cannot vary it.

o Therefore foreign legislation could not vary terms so as to substitute one party for
another: NO.
English law cannot be used to substitute one party for another, so therefore, bonds cannot be
enforced since they had to use Greek legislation.

Cannot seek benefit of English law for one thing and Greek for another. There is a purposive
approach, not instrumental -> the ultimate result matters so should end up
Macmillan:

Facts:

o Shares in NY corp.

o Held in trust under English law but provided

 Conflict of law issue: Under English law or shares returned. They said that it resolved a
question of priority and the ownership of shares.

Held: It is not breach of trust, but priority in terms of ownership of shares. Once determined that,
the connecting factor, since it relates to ownership of shares, it is determined by (3 theories) that
lead to NY:
o Place of incorporation.

o Country where registry is kept.

o Transferability of shares in corp.

Raiffeisen

Facts:

o One ship had insurance policy.

Argument: If insurance under British law, would be valid; but if location applied, would be
French, thus invalid.

Judgment: Connecting factors.

o If valid - the RZB owned policy.

o If not

Ship Sam Hawk:

Facts:

o Proceeding on a maritime lien (plane under maritime rules). Action in rem against a
ship.

Argument: Cannot have a maritime lien in Aus if there is not in Aus that concept.

Question: What is the proper characterization of the issue?

Judgment:

o Ship registered in HK, went to Turkey and the charger entered into a contract for supply
of gas.
o There is a maritime lien against ship arising from a contract in Turkey.

o Which rule will we use and wshich caracterisation method will be used?

o Lex causae US/Canada. NOT NECESSARILY.

o Even if it was US law and that maritime lien arose form that law, that wouldnt
necessarily categorise in AUS as maritime lien.
o Does s. 15 maritime lien that only rises under Aus Law? No, bc aus doesnt recognize
foreign maritime lien, but have to characterize foreign rights.
o If use only US law

o 1. Identify foreign law right (under US law).

o 2. Characterise the law (so that can be identified by reference to its law).

o 3. Look under Aus law if it would be a maritime lien which it isnt.

 II. DOCTRINE OF RENVOI:
When apply French law: only French dispositive rules (substantive French law) or private international
law rules? There is no point in applying Frech law if the French wouldnt apply it.
Renvoi, possibilities:
- No renvoi: Identify the fact that French law applyies (3 step process/characterization test).
- Single renvoi: Look at French law principles of private int law refer to New Caledonian law.
Apply NC law.
- Doble renvoi: Consider foreign system choice of rules law but its renvoi. NO SENSE.