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Articles for the keyword(s) "Characterisation"

"Conflict of Laws and Vessel Ownership"

Paul Myburgh, 2005

In a comment on Tisand (Pty) Ltd v The Owners of the Ship MV Cape Moreton (ex Freya) [2005] FCAFC 68, 29 April 2005, the author analyses the approach of the Court to the issue of foreign vessel ownership within the context of admiralty jurisdiction. The Court characterised the issue as relating to the transfer of property rights and subject to the lex situs, rather than a jurisdictional matter subject to the lex fori. The author supports the Court’s rejection of the lex fori approach and welcomes the Court’s sophisticated analysis of the conflicts issues involved.

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"Adoption and Succession in Private International Law"

BD Inglis, 1957

This article deals with rights of succession at English law of children adopted overseas with reference to English case law. The author concludes that, if a child adopted overseas has acquired the status of legitimacy through the operation of the relevant foreign adoption law, that child must have the same capacities and incapacities as a legitimate child in England. Therefore, the construction of terms, such as “issue” and “child”, is governed by English domestic law, but the question whether a person has acquired the status of legitimacy is governed by the rules of private international law.

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"Choice of Law in Equitable Wrongs: A Comparative Analysis"

Laurette Barnard, 1992

This article presents a comprehensive and in-depth comparative analysis of characterisation and choice of law in relation to equitable wrongs in English, Australian, Canadian and New Zealand law. The author proposes a flexible choice of law regime, based on the proper law of the claim, which should be determined with reference to the essential nature of equitable obligations and the policies operating in the field of fiduciary and related duties. Since the gaining of access to the beneficiary’s assets is the origin of the equitable obligation, the law under which access was gained should, subject to exceptions, constitute the proper law.

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“Cox v Ergo Versicherung AG: Statutory Packages in Transnational Personal Injury Cases”

Elsabe Schoeman, 2015

The assessment of damages in transnational personal injury claims poses a unique challenge for private international law theory and practice. Traditionally viewed as a procedural matter, there are strong reasons for the assessment of damages to be recognised as an integral part of a personal injury statutory package to be governed by the lex causae of the tort. This article questions the characterisation of the assessment of damages as substantive or procedural to determine which law governs such assessment, arguing that Etherton LJ’s approach, focusing on the causal connection between liability and loss, may provide a better approach to statutory packages.

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“The Ship Supplier’s Lien: Taking a (Maple) Leaf out of the Canadian Statute Book?”

Paul Myburgh, 2010

This article discusses the different treatment of ship suppliers’ claims in Anglo-Common Law jurisdictions. The United States, until recently, was the only jurisdiction that granted a maritime lien status to such claims. Canada, to avoid discrepancies with the United States, which could lead to forum shopping, has recently introduced a statutory maritime lien for certain ship suppliers’ claims. The author urges other Anglo-Common Law jurisdictions, including New Zealand, to reconsider their position in light of such developments.

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“Rome II and the Substance-Procedure Dichotomy: Crossing the Rubicon”

Elsabe Schoeman, 2010

The article examines the approach adopted in Rome II towards the substance-procedure distinction and signposts its potential significance for contemporary conflicts theory from an Anglo-Common Law perspective. The Rome II approach is regarded to be generally different from the one found under the common law. This is evident from a far broader category of matters assigned to the applicable law and a corresponding narrower category of matters governed by the lex fori. The author urges Anglo-Common Law jurisdictions to pay closer attention to Rome II and use it to re-evaluate their own positions in regard to the distinction between substance and procedure.

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"The 'Statutist Trap' and Subject-Matter Jurisdiction"

Maria Hook, 2017

This article explores the problems associated with an exclusive focus by courts on statutory interpretation when determining whether a statute applies to foreign facts, overlooking the application of conflict of laws principles. This focus is referred to as “statutism.” In particular, the author focuses on how statutism risks distortion of established notions of subject-matter jurisdiction in two ways. First, statutism can lead courts to overlook the choice of law process. Courts may conclude that if the relevant statute does not apply they must lack subject-matter jurisdiction over the dispute, overlooking the possibility that they can adjudicate the dispute according to foreign law. Second, statutism, by deciding the question of subject-matter jurisdiction according to statutory interpretation, prevents a proper analysis of whether the court has subject-matter jurisdiction according to the external conflict of laws framework.