Conflicts of Law

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Conflicts of Law by Mind Map: Conflicts of Law

1. Conflicts Process

1.1. (i) Characterisation

1.1.1. Issue Characterisation Macmillan no.3 Endorses this as the modern approach of characterisation Would be more appropriate if the issue is substantive This is the method espoused by the Third Modern Approach

1.1.2. Rule Characterisation Would be more appropriate when the issue is procedural

1.1.3. Claim Characterisation

1.2. (ii) Selection of appropriate choice of law rules in the context of the relevant connecting factors

1.2.1. Connecting factors: Contract Proper Law of the Contract Tort The Substance of the Tort Test, DAR, Flexible exception Property Lex situs rule

1.2.2. Hard Connecting Factors Lex Contractus

1.2.3. Soft Connecting Factors Real and closest connection to contract

1.3. iii) the identification of a system of law by the application of those connecting factors.

1.3.1. Whether forums' law must override applicable law

1.3.2. Whether foreign law must override applicable law

1.4. Important Quotes:

1.4.1. Macmillan No.3 True issue might be raised by the defence. Ought to examine claim in its totality

1.4.2. Mount I [26] The three step test by Lord Staughton ought not to be pursued by taking each step in turn and in isolation.

2. Choice of Law in Contract

2.1. Step 1: Characterisation

2.2. Step 2: Connecting Factors

2.2.1. What is the proper law? Apply Pacific Recreations 1. Express Proper Law Pacific Recreations 2. Implied Proper Law Marconi Factors to Consider Skip this step when: Parties clearly did not address their minds to the question of which law was to govern the contract -- for example, where the parties had acted entirely thorugh brokers. There is an oral contract, where it is not meaningful to infer any intention as to the proper law of the contract. 3. Objective Proper Law Amin Rasheed, Pacific Recreations Law that has the closest and most real connection to the contract 4. If Proper Law is SG Law, Apply Vita Foods Scope of the proper law Interpretation of terms Incorporation of terms Mode of performance Consequences of breach of contract

2.2.2. Can parties have more than one proper law? (Decepage) Main principle in both cases: An English Court will not split the proper law of a contract without a strong and compelling reason to do so. (Bankers Trust; Hanover Trust) Libyan Bank Cases Hanover Trust 2 contract approach Banker's Trust 1 contract 2 proper law approach

2.3. Step 3. Policy, Act of state, FMS

2.3.1. Limits to Party Choice or Autonomy Practical limits Choice must be Bona Fide and Legal Parties cannot choose anational law No floating choice of law clauses Overriding Party Autonomy Public Policy Rule Foreign Illegality Forum Mandatory Statute Formation and Incorporation issues Approaches Formation Incorporation

2.4. Step 4. Renvoi & Incidental Question

2.4.1. Renvoi Parties could not have intended to select the choice of law rules of the proper law Amin Rasheed [61-62] Renvoi arises out of an endeavour to ensure that like cases are decided alike in whichever forum they are decided but it should now be recognised that this cannot be achieved by judicial mental gymnastics, but only by international conventions Macmillan No.3 (Lower court) as per Lord Millett at 1008

2.4.2. Incidental question Validity of a contract to be determined

3. Choice of Law in Property

3.1. Step 1: Characterisation

3.1.1. First distinction: Use movable and immovable property distinctions instead of Realty and Personalty Tensions: Security of Title vs Security of Transaction The validity of transfer of a tangible movable property is determined by the law of the country where the movable is at the time of the transfer (lex situs)

3.1.2. Characterisation takes place through the lex situs rule Approaches:

3.1.3. What if issue deals with equity? Problems: Separate characterisation of Equitable claims?

3.2. Step 2: Lex Fori determines where the Lex Situs is

3.2.1. Adopt a chronological approach: Cammell v Sewell To start from the first lex situs where transaction began, and determine rights herein, then move to the 2nd lex situs to see whether rights were affected. While law of country X decided whether the theft in country X conferred good and valid title, it has no power to decide whether the thief could give good title in country Y (Winkworth) Also known as dual lex situs

3.2.2. Lex situs determines whether said property is: Tangible Movable Property Apply the lex situs Examples Intangible Movable Property Should the lex situs apply? Apply the proper law of the debt

3.3. Step 3: Public Policy and act of state

3.3.1. Exceptions to the Lex Situs Rule: i.e, where the law of the land where the property is situated will not apply Recognised in Winkworth 1. Casual Transit Exception A situs is casual when To apply the proper law of transfer instead 2. Purchaser claiming title has not acted in good faith The Forum will not apply the lex situs if it will confer title to a bad faith purchaser 3. Contrary to Public Policy For expropriatory rules 4. Forum Mandatory Statute 5. Special rules applying to general assignments of movables on bankruptcy or insolvency The fifth exception

3.4. Step 4: Applicable law; Renvoi and Incidental Question

3.4.1. Renvoi Yes Rule 124 Dicey and Morris In instances of immovable property, to apply renvoi No Macmillan Resistance to the application of renvoi in commercial transactions Title to movable property should always be determined by the lex situs for simplicity, consistency and certainty Maybe Dornoch

3.4.2. Incidental question While law of country X decided whether the theft in country X conferred good and valid title, it has no power to decide whether the thief could give good title in country Y (Winkworth)

4. Characterisation Considerations

4.1. Contract vs Prop

4.1.1. Favour a contract charactersation when: Issue deals with construction of terms, or contractual performance No Third Party Rights Exist Claim is for damages or specific performance of contract If it relates to sale of land, equity can intervene to accommodate property characterisation Validity of Assignment No 3P Involved Voluntary Assignment cases Right to payment under a letter of credit Right to payment was a contractual right Governing law as proper law of the contract between issuing bank and beneficiary under letter of credit more appropriate Obligation to pay under a letter of credit is situated where it is payable against documents.

4.1.2. Favour a prop charactersation when: Issue deals with passing of title Third Party Rights exist Interest in mortgage over land Validity of Assignment Involuntary Assignment cases Assignment of shares in a company Macmillan

4.2. Contract vs Tort

4.2.1. Favour a contract charactersation when: Contractual defence to tort exclusion Approaches

4.2.2. Favour a tort charactersation when: 3P Suing without a contractual duty between parties. Pre-contractual negligence Post-contractual negligence Concurrent Negligence Tort Defence to a contract UBS v Telesto

4.2.3. Singapore as the lex fori recognises the possibility of liability arising independently and concurrently in tort and contract Parties may accumulate causes of action (barred double recovery) but would be prevented in doing so if framing his claim was in bad faith This standard of bad faith was not elaborated Rickshaw Investments

4.3. Tort vs Prop

4.3.1. Favour a tort characterisation when: Tangible property Claim involves Conversion Examples: Claim involves Breach of duty of care Intangible property

4.3.2. Favour a prop characterisation when: Tangible property Claim involves dispute in title Intangible property

5. Choice of law in Tort

5.1. Step 1: Characterisation

5.1.1. Issue characterisation 1. Determine that the wrong complained of is tortious in nature Misrepresentation Negligence Property Rights & Conversion Defamation 2. The claimant can accumulate a cause of action in contract and in tort Concurrency is allowed 3. Whether there is a contractual defence against the tort claim Yes allowed No not allowed 4. Defences to the tort Defence to the claim in tort will be decided pursuant to the applicable law / lex loci delicti. 5. Damages The issue of damages can be substantive or procedural Limitation Statutes

5.2. Step 2: Connecting Factors

5.2.1. Substance test Misrepresentation Identifying gravamen of complaint and looking back over the events which have unfolded. Defamation Substance of tort for internet defamation is where the physical act of Downloading is.

5.2.2. Double Actionability SGCA held that there was no basis in international comity to treat wrongs committed in the forum differently from wrongs committed abroad. Rickshaw c.f English position, where wrongs committed in the forum are subject to forum rules Tort committed in Singapore DAR + FE Tort committed overseas DAR + FE

5.3. Step 3: Applicable Law, Public Policy, Foreign Mandatory Statute

5.3.1. Foreign Mandatory Statute In respect of statutory torts, there is a presumption against the statute applying extra-territorially. JIO Minerals)

5.3.2. Pre-dispute party autonomous choice of law Yeo Tiong Min argues that DAR+FE can be displaced where parties choose choice of law 1. Commercially sound 2. Costs savings and certainty 3. It is already acceptable in arbitration 4. Response to global competition for legal services: parties would choose to litigate in a forum which recognises their autonomy. 5. Only an incremental change from liberty not to plead foreign law Criticisms as to why DAR+FE should not be displaced 1. Parties should not be permitted to legislate 2. This undermines regulatory interests 3. Arbitral acceptance and judicial rejection 4. Reinforces problems of unequal bargaining power 5. No precedent

5.3.3. Parties' pre-contractual relationship Trafigura Contractual relationship was found to be more appropriate; tort would not have occured but for the contractual relationship between parties. Contractual relationship between employer and employee is better in establishing a closer and more significant loss distribution regime Johnson v Coventry

5.4. Step 4: Renvoi and Incidental Question

5.5. cases

5.5.1. Rickshaw

5.5.2. Johnson v coventry

5.5.3. Sayers

5.5.4. ASL

5.5.5. Parno SC Marine

5.5.6. Dow Jones

5.5.7. Pearce Arup

5.5.8. Halley

5.5.9. Interprovincial

5.5.10. Brodin

6. Act of state and public policy exclusion

6.1. Act of state

6.1.1. Recognition Recognising foreign law and that the forum's enforcement of a contract would be in breach of that foreign law for example. Note: Court will not recognise title obtained by foreign penal law.

6.1.2. Enforcement Executing the foreign law to give effect to a right pursuant to that foreign law.


6.1.4. Forum Mandatory Statute s5(2) Civil Law Act Positive examples Akai Industries Black Brothers v Mollard Golden Acres Negative examples Misrepresentation Act Factories Act Baseline: Protecting Interests of individuals Remedial in nature

6.1.5. Laws of foreign States Penal Laws What is Penal? In favour of a state Revenue Laws Baseline: Collection of monies for state benefit Examples Negative Examples Expropriatory laws Positive examples Negative examples Public Law West LB It is unclear what version of public law Singapore adopts. Positive examples Negative Examples

6.2. Public Policy

6.2.1. Contents repugnant International Policy Affront to basic principles of justice that is shared by international policy. When basic principles of fairness are infringed Alien to fundamental principles of justice Not domestic Can be statutory policy s5(2) Civil Law Act Procedural policy Procedural policies, such as s5(2) of the Civil Law Act Domestic policy Examples

6.2.2. Results repugnant Specific result on forum Kaufman v Gerson KAC No.4 & 5 Abstract result on forum Vervaeke v Smith General International Result Result of applying foreign law would be a deep concern to the worldwide community of nations It is usually the application of foreign law that will contravene the public policy of the forum

6.2.3. Known as the escape chute when reasons to protect the fundamental interests or values of the forum outweigh the reasons for applying foreign law