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Articles for the keyword(s) "Classification/characterisation"

"The Judicial Process in the Conflict of Laws"

BD Inglis, 1958

With reference to English case law and English text-writers, the author analyses the foreign court-theory in respect of renvoi, arguing in favour of its application and dealing with criticism leveled against it. The author also discusses the problem of classification, concluding that all conflicts issues are governed by English domestic law, except those that are referred to foreign law by choice of law rules. Once so referred, there is no need to classify the foreign law rules; whether a particular foreign law rule applies, depends on whether it answers the question referred to it by English law.

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"The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice of Court Convention"

Reid Mortensen, 2009

Following an analysis of the history and current context of the proposed Trans-Tasman regime (within the CER framework), this article explores the comparative value of the Hague Convention on Choice of Court Agreements for Australia and New Zealand. Although the Convention and the proposed Trans-Tasman regime are profoundly different, the author concludes that the adoption of the Convention would provide an opportunity for both countries to increase certainty in international trade and commercial relationships. More specifically, reference to the Convention would address the risk of lis pendens and incompatible judgments in the proposed Trans-Tasman regime.

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"Splitting the Proper Law in Private International Law"

Campbell McLachlan, 1990

This article examines the doctrine of a split proper law in international contracts critically. The essence of the doctrine is that two or more aspects of the same contract can be governed by different laws. However, the proper law of the contract is both a unifying and simplifying concept, whose central purpose is to resolve disputes by subjecting the contract to a single legal system. Hence, a split proper law runs counter to this. The author conducts an in-depth analysis of relevant case law and international conventions in this area of the law and suggests ways of constructing a contract that appears to be subject to a split proper law.