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Pippa Rogerson - One of the best experts on this subject based on the ideXlab platform.

  • problems of the applicable Law of the contract in the english Common Law Jurisdiction rules the good arguable case
    Journal of Private International Law, 2013
    Co-Authors: Pippa Rogerson
    Abstract:

    The applicable Law of a contract is important in two distinct ways in matters of the Jurisdiction of the English courts in cases involving foreign defendants that are not covered by the Brussels I Regulation or the Lugano Convention. First it is a ground or 'gateway' for the existence of Jurisdiction where a claimant seeks the permission of the court for service of the claim form on a defendant out of the territorial Jurisdiction of the English court. Where there is a dispute about the applicable Law, the claimant must use choice-of-Law rules to establish that the contract is governed by English Law to the standard of the 'good arguable case'. This is not a straightforward test. Secondly, the applicable Law is a factor in the exercise of discretionary Jurisdiction. The English court deploys the doctrine of forum conveniens in the exercise of the discretion both in cases of service out and in cases where a defendant who has been served with the claim form within the Jurisdiction asks for a stay of the English proceedings on the basis that there is another clearly more appropriate forum. The decision on the forum conveniens is also taken at the interlocutory stage. Here too there may be a dispute about what Law is the applicable Law. That dispute is resolved using choice-of-Law rules in a manner similar to the gateway argument. However, the parties are likely to adopt a more sophisticated strategy in this second case. The parties may further dispute the content or the effect of the applicable Law in order to support or challenge the exercise of Jurisdiction by the English court. Those disputes are also decided by application of the good arguable case test.

  • problems of the applicable Law of the contract in the english Common Law Jurisdiction rules the good arguable case
    2013
    Co-Authors: Pippa Rogerson
    Abstract:

    English Law as the applicable Law of the contract is a basis for Jurisdiction in English service out cases (ie cases involving foreign defendants that are not covered by the Brussels I Regulation or the Lugano Convention). It is also a factor in the exercise of Jurisdiction. In both instances the determination of the applicable Law and the assessment of its relevance raise difficult legal and practical questions. The courts use the “good arguable case” test to resolve those difficulties. Many recent decisions illustrate that the test is insufficiently clear. This article discusses those questions. It concludes that the differences between the existence and the exercise of Jurisdiction have been overlooked. Further it suggests that the problem lies in the competing objectives underlying the decision on Jurisdiction.

Valia Charo - One of the best experts on this subject based on the ideXlab platform.

Johannes M M Chan - One of the best experts on this subject based on the ideXlab platform.

  • application of article 6 of the echr to administrative decisions the experience of a Common Law Jurisdiction
    Social Science Research Network, 2018
    Co-Authors: Johannes M M Chan
    Abstract:

    The European Court of Human Rights’ preference for an inductive approach to determine what constitutes “civil rights and obligations” for the purpose of Article 6 of the European Convention of Human Rights as considerable problems when Article 6 is to apply to the Common Law system which does not draw a clear distinction between public Law and private Law. The problem is particularly acute when the constitutional right to a fair hearing is applied to an administrative process. The requirements of Article 6 will compel the Common Law courts to redraw the boundary between the executive and the judiciary, thus disturbing the constitutional principle of separation of powers, or the introduction of an institution with full Jurisdiction in the administrative process, thereby resulting in excessive judicialisation of the administrative decision-making process which is characterized by its informality and flexibility. The Common Law system responds in two ways. The first is to limit the scope of the meaning of “civil rights and obligations”. The second is to modify the requirement of an independent and impartial tribunal so that judicial review may in appropriate circumstances be sufficient to meet the constitutional requirements. This article examines the effectiveness of the Common Law responses and argues that wholesale adoption of Article 6 jurisprudence on civil rights and obligations to the Common Law system has to be treated with caution.

Shaunnagh Dorsett - One of the best experts on this subject based on the ideXlab platform.

  • since time immemorial a story of Common Law Jurisdiction native title and the case of tanistry
    Social Science Research Network, 2002
    Co-Authors: Shaunnagh Dorsett
    Abstract:

    In the 10 th anniversary year of the decision in Mabo, this article offers one possible account of the relationship between native title and the Common Law The article provides a description of this relationship, based on an account of Common Law Jurisdiction and the ways in which the Common Law historically used the concept of Jurisdiction in order to supplant other sites of adjudication and authority. The article traces the Jurisdictional story of the Common Law,from its origins as one of many decentralised legal spaces, through the important first colonial context of Ireland,to the new settlement of New South Wales, and the first encounters with 'the natives'. It then examines the decisions in Mabo, Wik and others, and concludes that in 'recognising 'and constructing the interest of native title, the Common Law relied on the same techniques which characterised its earlier encounters with the 'other' in the English domestic and Irish colonial contexts. It is only by understanding the way in which native title has come to be at Common Law that we can explore its possibilities and limitations as a vehicle for justice.

Max Huffman - One of the best experts on this subject based on the ideXlab platform.