Cheshire, North & Fawcett: Private International Law

Citation

Torremans, P., Grušić, U., Heinze, C., & Merrett, L. (2017). Cheshire, North & Fawcett: Private International Law (15th ed.). Oxford University Press.

Chapter Summary

The 15th edition is a treatise of roughly 1,400 pages in chapters grouped into six parts. It is edited by a team of academics, with James J. Fawcett as consultant editor, and the publisher describes it as aimed at practitioners as well as students.

Part I: Introduction (Chapters 1–2)

The opening chapters cover the definition, nature and scope of private international law, followed by its historical development and current theories.

Part II: Preliminary Topics (Chapters 3–9)

Seven chapters on concepts that recur throughout the subject: classification, the incidental question, renvoi, substance and procedure, the proof of foreign law, the exclusion of foreign law, and domicile, nationality and residence.

Part III: Jurisdiction, Foreign Judgments and Awards (Chapters 10–18)

The largest block on procedure. It begins with an introduction to the jurisdiction of the English courts, then treats jurisdiction under the Brussels/Lugano system and under the traditional rules, stays and the management of parallel proceedings, and limitations on jurisdiction. The second half of the part turns to recognition and enforcement: an introduction, the traditional rules, the Brussels/Lugano system, and foreign arbitral awards. The publisher singles out the 2015 Recast Brussels I Regulation as a major update.

Part IV: The Law of Obligations (Chapters 19–20)

Two chapters, on contracts and on non-contractual obligations, covering choice of law in the law of obligations.

Part V: Family Law (Chapters 21–28)

Marriage and other adult relationships, matrimonial and related causes, declarations, financial relief, children, cross-border surrogacy, legitimacy, legitimation and adoption, and mental incapacity.

Part VI: The Law of Property (Chapters 29–37 and a final chapter on trusts)

The part opens with the distinction between movables and immovables, then covers immovables, the transfer of tangible movables, the assignment of intangible movables, corporations, insolvency, administration of estates, succession, matrimonial property and trusts. (The publisher's contents listing numbers the final chapter, on trusts, inconsistently, so the exact chapter numbers at the end of the book should be checked against the copy in hand.)

Key Concepts

Parts I–II: Foundations and Preliminary Topics

• Classification: deciding which legal category a foreign-element question belongs to, a step that precedes choosing the governing law.
• Renvoi: the question whether a reference to foreign law includes that system's own conflict rules.
• Incidental question: a subsidiary issue inside a case whose answer may be governed by a different law from the main issue.
• Domicile, nationality and residence: the connecting factors used by the rules.

Part III: Jurisdiction, Judgments and Awards

• Brussels/Lugano system versus traditional rules: the two routes by which English courts decide jurisdiction and recognise judgments.
• Stays and parallel proceedings: how courts manage proceedings begun in more than one forum.
• Recognition and enforcement: the conditions on which a foreign judgment or arbitral award takes effect in England.

Parts IV–VI: Obligations, Family and Property

• Contractual and non-contractual obligations: choice of law for contract, tort and related claims.
• Cross-border family law: marriage, financial relief, children, surrogacy and adoption.
• Movables and immovables: the distinction that structures the property rules, with separate chapters on succession, insolvency and trusts.

Critical Analysis

Strengths

• Breadth. The book covers jurisdiction, judgments, obligations, family law and property under one cover. The six-part structure lets a reader go to one area without reading the rest.
• A team of subject specialists. The edition is edited by nine academics, whose posts are listed by the publisher at universities in England, Scotland, Germany, Spain and elsewhere, which suits a book that spans several distinct fields.
• Both a student and a practitioner text. The publisher presents it as a rigorous academic account and also a practical guide, with particular attention to commercial topics: jurisdiction and its limits, stays, anti-suit relief, and enforcement of judgments.

Limitations

• Size. At about 1,435 pages it is a reference work. It is not designed to be read straight through in a single course.
• Date. The edition appeared in 2017, before the United Kingdom left the European Union. Its Brussels/Lugano chapters describe the regime then in force, so a reader needs a later source for the post-departure rules on jurisdiction and judgments.
• Chapter numbering. The contents list supplied by the publisher shows an irregularity at the end of the property part, so cross-references to the last chapters should be checked against the book itself.

Where It Fits in the Course

This is the most comprehensive of the English-law conflict of laws books on the list. Briggs's The Conflict of Laws and Private International Law in English Courts are single-author works by the same scholar, the latter rebuilt for the law after the United Kingdom left the European Union. McClean's edition of Morris: The Conflict of Laws is a student textbook following the tradition of J. H. C. Morris, and Hartley's International Commercial Litigation is a text, cases and materials book on commercial matters that compares English and EU law with United States and Commonwealth approaches.

Cheshire, North & Fawcett is the book to consult after a shorter text has established the framework, and the one that covers areas such as family law and property that the commercial-litigation books do not.

How to Use This Book

It suits students who have completed a first course in private international law and want a full reference for essays, dissertations or moots, and practitioners who need a detailed account of jurisdiction and enforcement. Prior study of contract, tort, property and family law, and some EU law, is assumed.

A practical plan:

• Core: Part II (the preliminary topics), then Part III (jurisdiction and judgments) and Part IV (obligations). These are the areas most courses examine.
• As needed: Part V (family law) and Part VI (property) when the course or a project turns to them; the chapters on succession and trusts are separate and can be read independently.
• Reference use: Part I gives the theory; read Chapter 2 on historical development and current theories alongside a shorter text if the course emphasises theory.
• Check anything that turns on the EU regime against current sources, since the edition predates the United Kingdom's departure from the EU.