Conflict of Laws
The Conflict of Laws, or Private International Law, is concerned with private (mainly commercial) law cases, where the facts which give rise to litigation contain one or more foreign elements. A court may be asked to give relief for breach of a commercial contract made abroad, or to be performed abroad, or to which one or both of the parties is not English. It may be asked to grant relief in respect of an alleged tort occurring abroad, or allow a claimant to trace and recover funds which were fraudulently removed, and so on. In fact this component of the course, in which a court chooses which law or laws to apply when adjudicating a civil claim, represents its middle third. Prior to this comes the issues of jurisdiction; that is, when an English court will find that it has, and will exercise, jurisdiction over a defendant who is not English, or over a dispute which may have little to do with England or with English law. Closely allied to this is the question of what, if anything, may be done to impede proceedings which are underway in a foreign court but which really should not be there at all. The final third of the course is concerned with the recognition and enforcement of foreign judgments, to determine what effect, if any, these have in the English legal order.
The syllabus as studied in Oxford has to omit some subject areas which are properly part of the conflict of laws. Accordingly, candidates will not be required to show knowledge of (i) state and diplomatic immunities, (ii) jurisdiction in admiralty actions in rem; (iii) family law and the law of persons including the effect of marriage on property rights; (iv) succession to property and the administration of estates; (v) negotiable instruments; (vi) choice of law in respect of immovable property; (vii) foreign arbitral awards. However, they may be required to show outline knowledge of the choice of law rules relating to marriage and the law of persons as is necessary to understand, analyse and explain the doctrines of characterisation, renvoi, and the incidental question.
In England the subject has an increasingly European dimension,not only in relation to the jurisdiction of courts and the recognition and enforcement of judgements but also for choice of law as it applies to contractual and non-contractual obligations. The purpose of the course is to examine the areas studied by reference to case law and statute, and to aim at acquiring an understanding of the rules, their operation and inter-relationship, as would be necessary to deal with a problem arising in international commercial litigation.