Conflict of Laws Lecture Notes PDF

Conflict of Laws **[Lecture 2: Choice of Law]** **[A. Contract]** The **[3-stage]** choice of law rule **[Principles]** Pacific Recreation Pte Ltd v S Y Technology Inc \[2008\] 2 SLR(R) 491 (SGCA), \[35\]-\[50\] / **[Overseas Union Insurance]** **[- Factors considered to determine govnering l...

Conflict of Laws **[Lecture 2: Choice of Law]** **[A. Contract]** The **[3-stage]** choice of law rule **[Principles]** Pacific Recreation Pte Ltd v S Y Technology Inc \[2008\] 2 SLR(R) 491 (SGCA), \[35\]-\[50\] / **[Overseas Union Insurance]** **[- Factors considered to determine govnering law]** First Stage: Examine the contract for an express provision of the governing law1. Second Stage: If no express provision exists, infer the parties\' intention from the circumstances2. Third Stage: If the intention cannot be inferred, determine the law with the closest and most real connection to the contract1. **[\[Quizgecko\]Factors considered when determining objective and implied]** : The language of the contract3. The purpose of the Deed and its connection with other documents4. The presence of arbitration or forum clauses5. The use of legal concepts recognized in certain jurisdictions6. The place of execution and the currency used in the contract78. The place of enforcement of the Deed9. The policy that the governing law should be the one with the closest and most real connection to the contract The importance of the **[place of performance]** **[of transactions usually very important]** First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd \[2013\] 2 HKC 459 (HKCFA), \[53\]-\[56\] Exception to the 3-stage rule: Formation and agency are not covered by the 3-stage rule **[B. Tort]** The "double actionability" rule and the "flexible exception" - -- For a tort claim will succeed if: It would succeed under the lex fori(the law of the forum, i.e. Singapore law), **[and]** It would succeed under the lex loci delicti (the law of the place of the tort/delict) Double actionability has two limbs: an ex fori limb and the lex loca delicti limb. The claimant must pass **[both to succeed]**. **[the Double actionability rule is the general rule, unless the flexible exception applie (i.e. both limbs are fortuitious)s.]** **[The disapplied law must be purely fortuitous (Rickshaw)]** C. **[Exceptions]** to the choice of law rules **[\[1\] Procedural issues]** **[\[2\] Forum mandatory rules]** Parliament has the power to legislate extraterritorially, and the choice of law rules are tools to ascertain Parliamentary intention on the geographical scope of laws. Parliament is generally presumed to have intended for its laws to apply only to activities within Singapore. If misrepresentation occurred outside Singapore. Therefore, the Misrepresentation Act does not apply \[3\] Public policy - **[Would enforcemnt of a rule contravene Singapore public policy?]** Oppenheimer v Cattermole \[1976\] AC 249 (UKHL), 281-284 **[Lecture 3: Jurisdiction of law]** **[Can (Is there an existence of jurisdiction)]** and **[should (If there is jurisdiction, then whether Singapore court is better-placed to adjudicate)]** Singapore's courts exercise jurisdiction over a particular defendant in relation to a particular dispute? A. **[Service within Jurisdiction]** Existence of jurisdiction Existence of jurisdiction: **[corporations]** The business must be transacted at or from the fixed place of business. whether the fixed place of business was acquired to act on behalf of the overseas corporation, whether the corporation reimburses the representative for costs, the degree of control the corporation exercises, and whether the representative makes contracts in the name of the corporation. **[Exercise of jurisdiction]**: **[forum non conveniens; Burden on Defendant to show that Singapore is not the natural forum]** **[ First: is Singapore prima facie more appropriate than other fora? Second: even if not, would C be denied substantial justice in the foreign court? If the answer to either question is "yes", the Singapore court will exercise jurisdiction]** The test for granting leave for service out of the jurisdiction is whether the English court is distinctly more suitable for the ends of justice The Spiliada factors: Parties' connections: where are parties domiciled/resident/carrying on business? Availability of witnesses and evidence: are material witnesses/documents only compellable/discoverable in certain jurisdictions? Governing Law: what law governs the major issues in dispute? Other Proceedings: are there similar proceedings ongoing elsewhere, involving similar parties and issues? The nature of the dispute is always important: it is obviously a more weighty factor in a dispute which turns on questions of interpretation of the law than one which merely involves the application of the law. If there is real and material risk of injustice arising from the matter being heard by the foreign court, then the **[burden shifts to the Claimant]** B. **[Service out]** of Jurisdiction **[\[Claimant bears the burden to show natural forum\]]** **[Existence of jurisdiction \[burden on claimant\]]** What counts as a **[\'sufficient nexus]**\'? **[Contractual disputes]** (PD 63(3)(d)-(e)) **[Tort disputes]** (PD 63(3)(f) and (p) **[Damage must be suffered in Singapore and not merely trivial]** **[Exercise]** of jurisdiction: forum non conveniens **[\[Burden on Claimant\]]** C. Jurisdiction Clauses **[Existence]** of jurisdiction **[Exercise]** of jurisdiction: the "strong cause" test **[submit to the non-exclusive jurisdiction of the Singapore Courts]** = Singapore courts will not stay their proceedings, will exercise their jurisdiction in line with the non -exclusive jurisdiction clause choosing the Singapore court, unless there is strong cause to disregard the the jurisdiction clause and stay proceedings and allow proceedings to happen in the foreign jurisdiction. It doesn\'t matter whether or not the foreign jurisdiction is prima facie, the foreign convenience or the natural forum **[Lecture 4: Anti-suit injunctions]** What are anti-suit injunctions? An anti-suit injunction (ASI) prohibits its target from commencing or continuing proceedings in a foreign court **[The rationale: preventing fragmentation of proceedings (and the outflanking of the Singapore court's jurisdiction)]** A. **[Contractual]** anti-suit injunctions **[Lakshmi 5 -factor test]** However, despite a Singapore jurisdiction clause, courts may deny the ASI where (Sun Travels): **[the Singapore Courts will not intervene if the matter does not concern Singapore Courts]** B. **[Non-contractual]** anti-suit injunctions (4 Factors + Lakshmi delay) Two scenarios of **[unconscionability]** Scenario 2: bad faith commencing proceedings to frustrate Singapore proceedings even where the foreign court has declined to stay its proceedings, it would not invariably be a breach of comity for the **[domestic court to grant an anti-suit injunction]** if it finds that (a) it is clearly the more appropriate forum for the dispute; **[and]** (b) the defendant in the application has acted in a vexatious or oppressive manner in commencing the foreign proceedings **[Lecture 5: Foreign Judgements]** A. Requirements for Recognition/Enforcement 1\. International **[jurisdiction]** of the foreign court **[the judgement must be issued by a court of competent jurisdiction]** - - -