Dr Jacobus Bomhoff

This course is available on the BA in Anthropology and Law and LLB in Laws. This course is available with permission as an outside option to students on other programmes where regulations permit. This course is available to General Course students.

The only required background understanding relates to (English) law of obligations.The majority of students taking this course tend to be in their third year. That said, many second year students have done very well on this course over the past years.

Conflict of laws – also known as private international law – is the area of law concerned with private law cases that cross borders. Conflict of laws differs from public international law in that it deals with transactions between private individuals, rather than with those directly implicating States or international organisations.

What rules should an English court apply to a contract between companies from different countries, or to a tort claim arising out of an environmental disaster abroad? Should foreign celebrities be allowed to sue in the English courts when they feel they have been defamed in an article posted on an American website? Should the English courts recognize judgments from other countries, even when they conflict with English ideas of right and wrong? It is questions like these that make up the subject of the conflict of laws.

The field’s central technical questions are (1) jurisdiction (will an English court or a foreign court hear the case?), (2) choice of law (should the court apply its own law or that of a foreign country?), and (3) the recognition and enforcement of foreign judgments. During the course, these three questions will frame reflection on a range of topics, including commercial/practical issues (how can companies structure their cross-border transactions?), but also questions of a more political nature (to what extent should States be able to regulate matters beyond their own borders?) or with a strong social/cultural dimension (how should foreign cultural values be accommodated in English law?).

Although conflict of laws has a long history within English law, for some areas many of the relevant rules have changed dramatically in recent years under the influence of EU legislation and case law. This means that conflict of laws should also be of particular interest to those wishing to study the interaction of English law and European law. It is expected that after Brexit many of the relevant rules will remain similar to those in force today (to give just one example: we will still need rules on the enforcement of English court judgments in other European countries, and vice versa).

During the course, we will look at (1) jurisdiction in international commercial litigation under the traditional English rules and under European law, (2) choice of law issues in contract and tort, (3) recognition and enforcement of foreign judgments under European rules and at common law, and (4) comparative aspects and theoretical foundations of conflict of laws (looking at US and Canadian law in particular).

Syllabus

• Jurisdiction of English courts under the traditional English rules for actions in personam: Service of a claim form within the jurisdiction & out of the jurisdiction, choice of court clauses, stay of proceedings, restraining foreign proceedings (anti-suit injunctions).

• Jurisdiction of English courts and courts in other EU Member States under European Union Council Regulation 1215/2012, with attention also to the expected position after Brexit.

• Recognition & enforcement of foreign judgments at common law and under European Union rules, with attention also to the expected position after Brexit.

• Choice of law relating to contracts under the Rome I Regulation: Interpreting choice of law clauses in contracts, applicable law in absence of choice, overriding mandatory rules, public policy, foreign illegality in English law.

• Choice of law relating to tort under the Rome II Regulation, older English approach, ‘interest analysis’ and other approaches of the ‘US conflict of laws revolution’

• Comparative conflict of laws & Theoretical foundations

20 hours of seminars in the MT. 20 hours of seminars in the LT. 2 hours of seminars in the ST.

There will be reading weeks in Week 6 of MT and Week 6 of LT.

Students will be expected to produce 1 essay in the MT and 1 essay in the LT

Briggs, The Conflict of Laws (3rd ed., Oxford University Press, 2013)

Resources: www.conflictoflaws.net (Topical references, cases and reviews)

Exam (100%, duration: 3 hours, reading time: 15 minutes) in the summer exam period.