Rana_Shuja-WPS_Office.docx
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ABNORMAL P
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Law
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Nov 24, 2024
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Uploaded by ProfessorMandrillMaster975
Rana Shuja
Question 1 . In what circumstances might an English court look to a rule of foreign law in determining a commercial dispute? Furthermore, are there examples of judges utilising foreign law to develop or fashion a rule of the common law?
Introduction In an increasingly globalised world, commercial disputes are becoming more complex as they often involve parties from different jurisdictions and legal systems. English courts may be required to consider foreign law in resolving these disputes, particularly when the parties have agreed to be governed by a foreign legal system, or when the case involves an element of international law. These are the main circumstances when foreign law can be considered and applied by the English Courts. 1- Choice of Law When parties in a commercial dispute explicitly select a foreign legal system to govern their contract, an English court may refer to a foreign law. In these situations, the court employs private international law principles to identify the contract's appropriate governing law, which could be a foreign legal system. For example, in the relevant caselaw "Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm)", indian law was applied by the court to determine the validity of an arbitration clause, as the parties had agreed that Indian law would govern their contract. This case law provides that in situation where the parties in conflict in commerical matters agree to the application of foreign law, English court can apply foreign laws. 2- Foreign Property Rights Foreign law can also be considered by the English Courts in case where they are to determine disputes involving foreign property rights. In these kind of cases, the court will apply the principle of "lex situs", which means that the "law of the place where the property is situated governs the rights and liabilities relating to that property". This principle ensures that disputes
involving foreign property rights are resolved consistently with the law of the jurisdiction in which the property is located. 3- Foreign Tort Claims Another important circumstance in which an English court may look to a rule of foreign law is when the dispute involves a tort claim with a foreign element. In these types of cases, the court will apply the "double actionability" rule, which requires that the tort be actionable under both English law and the law of the place where the tort occurred. This rule legally emerged from a contentious case of "Phillips v Eyre (1870) LR 6 QB 1". Under this rule the couets are allowed to consider foreign law in assessing liability and damages, as it may provide additional remedies or defences that are not available under English law. 4- Common Law In different cases, the judges of English Courts have utilised foreign law to develop or fashion a rule of the common law. The most important example of this is the case of "Donoghue v Stevenson [1932] AC 562", where the Lord Atkin gave decision on American case law to establish the ‘neighbour principle’ as the foundation of the modern law of negligence in England. The American case cited in this case was of "MacPherson v Buick Motor Co. 217 N.Y. 382 (1916)" as a persuasive authority in support of his argument that a manufacturer owes a duty of care to the ultimate consumer of a product, even if there is no direct contractual relationship between them. Another most example is the development of the ‘lifting the corporate veil’ doctrine in English company law. In "Adams v Cape Industries plc [1990] Ch 433", the Court of Appeal considered foreign law, specifically American and Australian cases, in determining the circumstances under which the corporate veil could be lifted to hold a parent company liable for the acts of its subsidiary. The court found that, although there was no general principle under English law allowing the corporate veil to be lifted, it could be done in specific circumstances, such as where the parent company was using the subsidiary as a mere façade to avoid liability. By
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referring to foreign case law, the court was able to develop a more nuanced understanding of the corporate veil doctrine and its application in English law. These examples demonstrate that, although English courts are not bound by foreign law and there is no compulsion of course on courts, but they may utilise it as a persuasive authority to develop and refine the common law, particularly in areas where English law is unclear or underdeveloped. Conclusion To conclude the above analysis it has been stated that, English courts may look to a rule of foreign law in determining a commercial dispute under several circumstances, such as when parties have chosen a foreign law to govern their contract, when the dispute involves a foreign tort claim, or when it concerns foreign property rights. Additionally, judges have utilised foreign law to develop or fashion a rule of the common law, drawing on foreign jurisprudence to refine and clarify English legal principles. As commercial disputes continue to become more complex and international in nature, the consideration of foreign law by English courts will likely play an increasingly important role in ensuring the fair and consistent resolution of these disputes. Question 3. Analyse the way in which the legal heritage of a so-called mixed legal jurisdiction might influence the development, application and interpretation of commercial law in that jurisdiction. Introduction Mixed legal jurisdictions are those that have been influenced by two or more legal systems, often a combination of civil law and common law traditions. These jurisdictions have developed
unique legal systems that incorporate elements from each of their legal heritages. The development, application, and interpretation of commercial law in mixed legal jurisdictions can be significantly influenced by this legal heritage. There are different ways in this which the legal heritage of a mixed legal jurisdiction might impact the evolution and application of commercial law and that will be discussed below. Discussion
The legal heritage of a mixed legal jurisdiction can significantly impact commercial law, particularly in the realm of contract law principles. In civil law jurisdictions, contract law is typically regulated by comprehensive codes outlining general principles and rules governing contractual relationships. These codes provide a structured and predictable framework for parties entering into contracts. On the other hand, common law jurisdictions primarily rely on judicial precedent for contract law, resulting in a more flexible and adaptable system tailored to each case's specific circumstances. In a mixed legal jurisdiction, the combination of civil and common law traditions can create a unique approach to contract law. This hybrid system may incorporate elements of codification from civil law, providing a stable foundation for contractual relationships. At the same time, it may also adopt the flexibility and adaptability of common law, allowing courts to consider individual circumstances when interpreting and enforcing contracts. This fusion of legal traditions results in a distinctive and dynamic contract law framework that is well-suited to address the complexities and challenges of modern commercial relationships Another way in which the legal heritage of a mixed legal jurisdiction can influence the development, application, and interpretation of commercial law is through the role of legal precedent. In common law jurisdictions, the doctrine of stare decisis, or the principle that courts should follow the decisions of higher courts, plays a crucial role in ensuring the consistent application and development of the law. In contrast, civil law jurisdictions do not generally follow the doctrine of stare decisis, and judicial decisions serve as a source of guidance rather than binding precedent. In a mixed legal jurisdiction, the influence of legal precedent on commercial law can vary depending on the extent to which the jurisdiction has
adopted the principles of stare decisis. For example, some mixed jurisdictions may follow a modified version of stare decisis, in which courts are only bound by decisions of the highest appellate court. This approach can provide a degree of consistency in the development and application of commercial law while also allowing for greater flexibility and adaptability in response to changing legal and commercial environments. Codification plays a significant role in shaping commercial law in mixed legal jurisdictions. In civil law jurisdictions, legal codes provide a comprehensive and systematic framework for the regulation of commercial relationships, covering a wide range of topics such as contract formation, interpretation, performance, and remedies. In contrast, common law jurisdictions tend to rely on judicial decisions and statutes to develop commercial law principles incrementally and on a case-by-case basis. The legal heritage of a mixed legal jurisdiction can influence the degree to which commercial law is codified and the role that codification plays in the development, application, and interpretation of commercial law. In some mixed jurisdictions, a comprehensive commercial code may be adopted to provide a stable and predictable framework for commercial relationships, while in others, commercial law may be governed by a combination of statutes and judicial decisions. This variation in the approach to codification can have significant implications for the predictability, consistency, and adaptability of commercial law in mixed legal jurisdictions. Conclusion To conclude the above analysis it has been stated that, the legal heritage of a mixed legal jurisdiction significantly impacts commercial law development, application, and interpretation. A blend of civil and common law traditions shapes contract law principles, creating a hybrid system combining codification's stability with case law's flexibility. The influence of legal precedent is affected, as a modified version of stare decisis ensures consistency while allowing adaptability. Codification's role varies across jurisdictions, with some adopting comprehensive codes and others relying on statutes and judicial decisions. This hybrid approach offers predictability, consistency, and adaptability, making commercial law in mixed legal jurisdictions well-equipped to handle modern commercial complexities and challenges.
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