The Conflict of Laws

Citation

Briggs, A. (2019). The Conflict of Laws (4th ed.). Oxford University Press (Clarendon Law Series).

Chapter Summary

Context and Argument

This is a short survey in the Clarendon Law Series of how English courts handle cases with a foreign element: whether they have jurisdiction, which country's law applies, and what effect a foreign judgment has. It runs to about 350 pages in nine chapters. The fourth edition was written while the terms of Brexit were still unknown, and the author describes the several shapes that the subject might take afterwards.

The book states two organising choices. It is pragmatic and avoids abstract theory, on the view that the theory of the subject is found in the legislation and case law applied to real disputes. And it reorders the material to reflect that the subject now has to be understood as European law with a common law periphery, rather than common law with some European influences. Readers who use it after the end of the transition period should keep this in mind.

Chapter 1: Introduction

The chapter explains the nature of the subject, treats private international law as common law, and then presents the legislation that made it a matter of European law. It sets up the three-part structure used throughout the book: jurisdiction, choice of law and foreign judgments.

Chapter 2: Jurisdiction

The chapter begins by distinguishing the senses of jurisdiction, then takes the regulation rules, first in outline and then in detail, and finally the common law rules that apply where the regulation does not. It is the longest chapter, at over eighty pages.

Chapter 3: Foreign Judgments

The chapter covers the recognition and enforcement of foreign judgments. It treats registration under the Brussels I Regulation, the older 1920 and 1933 Acts, and the indirect effect of judgments from the rest of the world at common law.

Chapter 4: The Lex Fori

This short chapter deals with the matters the forum decides for itself: procedure, the exclusion of penal, revenue and other public laws, and public policy as a ground for refusing to apply foreign law.

Chapter 5: Contractual Obligations

The chapter introduces the choice of law for contracts, gives a detailed account of the Rome I Regulation, and explains the different rules for contracts made before 18 December 2009.

Chapter 6: Noncontractual Obligations

Parallel to the previous chapter, it covers the Rome II Regulation and the rules that still apply to noncontractual obligations outside it.

Chapter 7: Property

The chapter treats immovable property and movable property, title by seizure and confiscation, trusts, and the relationship between personal status and property rights.

Chapter 8: Persons

The chapter deals with adults and children. The description of the law on children is intentionally in outline, because that area has become too complex for a short survey.

Chapter 9: Corporations

A single short chapter on the private international law of corporations, followed by the index.

Key Concepts

Chapters 1–3

• Three questions of private international law: jurisdiction, applicable law and the effect of foreign judgments.
• Regulation jurisdiction and common law jurisdiction: the European instrument-based rules and the traditional English rules that apply where the instruments do not.
• Recognition and enforcement: when a foreign judgment can be given effect, and by what procedure.

Chapters 4–6

• Lex fori: the law of the forum, which governs procedure and which limits the application of foreign law.
• Public policy: the ground for refusing to apply a foreign rule.
• Rome I and Rome II: the regulations that select the law applicable to contractual and noncontractual obligations.

Chapters 7–9

• Property and trusts: the choice-of-law treatment of movables, immovables and trusts.
• Personal status: the rules governing adults and children.
• Corporations: the law applied to the status and internal affairs of companies.

Critical Analysis

Strengths

• Architecture before detail. The publisher describes the aim as explaining the principles that underpin the subject in a clear and coherent way, since the volume of cases and legislation can obscure its architecture. A student who is confused by a larger text can use this book to see the shape of the subject.
• Compact. It covers the whole of English private international law, including property, persons and corporations, in about 350 pages.
• Clear signposting of the legislative layers. Because the material is organised around the regulations and the common law rules that complement them, the reader can see which rule applies in which situation.
• Conscious of Brexit. It tries to say what could change, which is useful as a record of the position before the new arrangements.

Limitations

• A snapshot of 2019. The text was prepared before the United Kingdom left the EU and before it applied to join the Lugano Convention. The present position on jurisdiction, applicable law and recognition of judgments after the end of the transition period requires a later source.
• Thin on theory and policy. The author chooses not to engage with abstract theory. A reader who wants the debates about the nature of the subject should consult other books.
• Brief on some areas. The law of children is described in outline only, and the book is not a substitute for a practitioner work when a point turns on detail.
• England and Wales only. It treats other legal systems only incidentally.

Where It Fits in the Course

This is one of the shorter books in the course. Morris's The Conflict of Laws, now edited by David McClean, is also a student textbook on the subject as applied in the English courts. Hartley's International Commercial Litigation is a text, cases and materials volume focusing on commercial disputes and comparing English and EU law with other systems. Cheshire, North and Fawcett: Private International Law is the long-established English treatise, to be consulted for depth. Briggs's own Private International Law in English Courts is a larger single-author treatise whose second edition was rebuilt for the post-Brexit position.

A sensible sequence is to read this book first for the map of the subject, then Morris or Hartley for coursework, and then the larger treatises when a problem needs a precise answer. For the post-Brexit law, use the author's later treatise or a current textbook alongside this one.

How to Use This Book

It suits law students meeting private international law for the first time, and practitioners who want a refresher on the structure of the subject. Familiarity with the basics of English contract, tort and property law and with the working of the English courts will help.

A practical plan:

• Read Chapter 1 and the first part of Chapter 2 to get the framework and the vocabulary.
• Read the rest in the order given, as jurisdiction, foreign judgments and choice of law build on one another. Chapters 5 and 6 should be read together.
• Treat Chapters 7 to 9 as reference material for topics that your course covers.
• Check the current law: for each chapter, ask which of the regulations discussed still applies in England and Wales, and look up the replacement rules.