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Private International Law - Essay Example

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Private International Law Introduction In the area of the law known as private international law or conflict of laws, the controversies analysed and adjudicated are those that pertain to situations which, while domestic, have a foreign element. Many of these have to do with commercial transactions, such as the purchase of an item from a foreign vendor that turns out to be defective…
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Private International Law
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Download file to see previous pages In the resolution of cases of conflicts of law, problems arise when the different nationals have different rights and claims under their own laws, and at times the law of the place and the law agreed upon in a contract add a third or fourth consideration as to which set of laws shall apply in settling the case. There are three important determinations to be made prior to even beginning to address the substance of the case. The first is that of jurisdiction, and the second is the choice of law, and third is the matter of enforcement of the judgment. In this essay, only the first two shall be considered. Jurisdiction refers to the power to legislate or adjudicate with effect. It is the first question to be decided in a dispute involving a foreign element.1 Proceeding to hear a case without the proper jurisdiction is fatal to the case under that tribunal, and can only be remedied by a change of venue. The second important consideration is that of the choice of law. Once the English court has accepted and affirmed jurisdiction, it has then to determine what system of law must be applied to the dispute, pursuant to which the rights and liabilities of the parties shall be determined.2 There are two contexts of jurisdiction – territorial jurisdiction, and power jurisdiction.3 The first, territorial jurisdiction, pertains to the determination of which persons are within the reach of the courts of England, as claimed by English law. Contrary to the term’s implied meaning, this jurisdiction may extend beyond the physical boundaries of England and Wales (where this law is applicable), where English nationals over which the English legal system claims jurisdiction may sojourn outside the geographical territory of England and Wales. The second context in which jurisdiction may be taken refers to the power jurisdiction, that is, the situations and circumstances where the English courts may actually gain power to adjudicate a particular case involving persons who are within the territorial jurisdiction of the court.4 In order for an English court to gain competence over a case, said court should gain both territorial and power jurisdiction over the case. In private international law, the characterisation of issues subject of claim is the prerogative of the court of the forum.5 The case of Brian First claim: The consignment of biscuits from Bleagh Spa The claim of right in this case is one that arises out of contract. A contract of sale for Italian biscuits was drawn between Brian and Italian food supplier Bleagh Spa for the delivery of biscuits specified to be Italian. Instead, Bleagh had delivered Liechtenstein biscuits, which were unsuitable for the purpose for which they were bought, as such products should be sold in an Italian restaurant as Italian fare. This constituted a breach of the terms of the contract which specified the goods to be Italian. As such, Brian had a claim of right against Bleagh, one that constitutes a dispute of the fulfilment of a contract that is of a commercial nature. . Jurisdiction As to the domicile of the parties, it is specified that Brian is domiciled in the U.K., being a British national and living within the U.K. as permanent resident. Bleagh Spa, on the other hand, is an Italian business organisation, and in the absence of other information, is presumed to be domiciled in Italy. The conflict of laws problem therefore arises between the ...Download file to see next pagesRead More
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