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The Uses of Putativity and Negativity in the Conflict of Laws

Published online by Cambridge University Press:  17 January 2008

Elizabeth B Crawford
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Extract

Putativity is a useful concept in the conflict of laws, allowing reference to be made to an outcome which was intended to have come about, but which has failed, as a result of human actings or divine intervention. To apply to something which is imperfect a consequence which would arise if it were perfect is justifiable on the pragmatic grounds of convenience, speed, and cost—and thence, through the merit of certainty, to the satisfaction (perhaps) of party expectation, or at least to the forestalling of disappointment. Reference to the putative applicable law may be permissible therefore on the ground of enabling a resolution to emerge, the more so if the result of so doing commends itself to the disinterested observer and to one, at least, of the parties; on the other hand, the result may disappoint the reasonable expectations of both parties. Whatever the rationale, it can be observed that use of the device is authorized at common law, by statute, in Convention, and Regulation. But if one does not ask whether this methodological technique begs the question, one begs the question.

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Articles
Information
International & Comparative Law Quarterly , Volume 54 , Issue 4 , October 2005 , pp. 829 - 853
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Copyright © British Institute of International and Comparative Law 2005

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References

1 Convenient and neat though its application may be, Dicey, & Morris, , The Conflict of Laws (13th ednSweet & Maxwell 2000) pp 32–158, explains the injustices which may arise.Google Scholar

2 As in Albeko Schuhmaschinen AG v Kamborian Shoe Machine Co Ltd (1961) 111 L J 519. To treat as still existing (as a consequence of the operation of a choice of law rule) that which physically has been destroyed is surely somewhat less tenable; cf Velasco v Coney [1934] P 143. Consider also in this connection the character of some legal or lay acts as inchoate (crime) or ambulatory (testamentary writing). The scope of this discussion is limited to matters of conflict of laws. There are of course areas of substantive law, most notably in the rules of restitution, which are characterized by the desire to deliver a fair result where matters have turned out differently from expected.

3 In a conflict context, one must query also ‘the attention of which court?’ (not always the court which at the outset the parties were thought to have chosen).

4 Strictly, the verb should not be employed until the merits of the matter have been established (but one must ask, by which court?).

5 But one may ask, again, by which court?

6 Though not, it seems, where the case arises within the purlieu of the Brussels regime: see Erich Gasser GmbH v Misat Srl [2004] 1 Lloyd's Rep 222, discussed below.

7 1999 GWD 22–1065, reversing single judge decision reported at 1999 GWD 13–622.

8 As to which, in its operation in Scots law, see House of Lords decision Bank of East Asia Limited v Scottish Enterprise 1997 SLT 1213.

9 As found and proved by the law of Belgium.

10 Applying to this question of mutuality whatever be the governing law of the compromise agreement, possibly Scots law, as proved to the Belgian court.

11 [1967] 2 QB 590.

12 See Hague Convention on Choice of Court Agreements of 30 June 2005, Art 3d (henceforth (‘Hague Choice of Court Convention’), discussed below.

13 cf Re Emery's Investment Trust, Emery v Emery [1959] Ch 410; Foster v Driscoll [1929] 1 KB 470; and Regazzione v Sethia [1957] 3 All ER 286.

14 At 598.

15 [1990] 1 QB 1.

16 See Re Emery's Investment Trust, Emery v Emery, Foster v Driscoll, Regazzione v Sethia, all above; and Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd [1988] QB 448. See also Mackender, above, per Lord Diplock at 602. That which is illegal by the governing law will not be enforced: Heriz v Riera 1840 11 Sum 318.

17 Marine Insurance Act 1906, s 41.

18 cf Benincasa v Dentalkit 1997 ECR I-3767: it is for the national court designated by a jurisdiction clause validly concluded under the Brussels rules to determine whether the substance of the dispute falls within the clause, and whether that clause is apt to cover any dispute concerning the validity of the contract containing the clause.

19 The Convention does not regulate non-exclusive choice of court agreements since this would have necessitated the formulation of rules to address problems of parallel proceedings of equal standing, resulting potentially in irreconcilable judgments.

20 Art 3b.

21 Or both? It is questionable whether this would constitute a change of mind by subsequent actings. cf Reg 44, Art 24.

22 Erich Gasser GmbH v Misat Srl [2004] 1 Lloyd's Rep 222, discussed below.

23 See Art 6. Though, given the ‘business to business’ basis of the proposed instrument, and the concomitant exclusion (in Hague Convention Art 2a) of the status and legal capacity of natural persons, questions of capacity surely must be questions of vires of bodies. Yet Hague Draft Convention Art 2m excludes from the application of the Convention ‘the validity, nullity or dissolution of legal persons, and the validity of decisions of their organs’.

24 By which law is the validity of the principal contract to be judged? By its putative law, presumably: 1980 Rome Convention on the Law Applicable to Contractual Obligations (hence forth ‘Rome I’), Art 8. cf Mackender, above.

25 The undemanding requirements as to form are contained in Hague Draft Convention Art 3c.

26 Ibid Art 5. But the endowment is phrased in a negative manner. And see also Art 6A.

27 Ibid Art 7. At least, the court seised shall suspend or dismiss its proceedings unless by its law, the agreement is null and void; a party lacked capacity; giving effect to the agreements would lead to manifest injustice or would be manifestly contrary to its public policy; for exceptional reasons the agreement cannot reasonably be performed; or the chosen court has decided not to hear the case.

28 cf generally the misgivings of Cheshire upon the application of the putative proper law to govern contractual capacity if such putative proper law were chosen expressly or impliedly by the parties (see EB Crawford International Private Law in Scotland (W Green & Son Edinburgh 1998) para 12.44); and the misgivings of North (GC Cheshire and PM North's Private International Law, above, ch 20, 691–2), upon the possibility that in relationary restitutionary obligations the applicable law (being the applicable law or putative applicable law of the related contract), might have been selected by the parties.

29 As to defects of earlier situation, see Fawcett, J ‘Non Exclusive Jurisdiction Agreements in Private International Law’ (2001) LMCLQ 234.Google Scholar

30 Gasser (n 22); JP Morgan Europe Ltd v Primacom AG and anr [2005] EWHC 508 (Comm); Turner v Grovit [2005] 1 AC 101; Owusu v Jackson (t/a Villa Holidays Bal Inn Villas) Case C281/02, The Times 9 Mar 2005.

31 Principally Arts 23, 27, and 28.

32 [2004] 1 Lloyd's Rep 222.

33 Ibid para 18. Reg 44 Art 23.1: ‘Such an agreement conferring jurisdiction shall be either:… (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.’

34 [2004] 1 Lloyd's Rep 222, para 16.

35 The manner of drafting of the UK pleadings itself invites question. It seems that it must have been envisaged that the existence and nature of ‘bad faith’ in the bringing of proceedings in breach of a private agreement would be judged by the court allegedly chosen by the parties.

36 Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd R. 378. (See, in England, Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, per Lord Wright, at 290).

37 Rome I, Art 3.

38 Of two types: Art 3.3; Art 7.1 (not applicable in a UK court) and 7.2. See Clarkson and Hill, op cit 225.

39 Art 16.

40 As to negative tactics, see generally A Bell Forum Shopping and Venue in Transnational Litigation (OUP Oxford 2003) ch 4 (‘Venue and the Defendant—Reverse Forum Shopping’).

41 Rodden v Whatlings 1960 SLT (Notes) 96; Bonnor v Balfour Kilpatrick 1975 SLT (Notes) 3; Pryde v Proctor & Gamble 1971 SLT (Notes) 18; and De Reneville v De Reneville [1948] P 100.

42 Syal v Hayward [1948] 2 KB 443; Owens Bank v Bracco [1992] 2 All ER 193 (HL)—from which position the Privy Council seemed to wish to distance itself in Owens Bank Ltd v Etoile Commerciale SA [1995] 1 WLR 44.

43 Interdesco SA v Nullifire Ltd [1992] 1 Lloyd's Rep 180.

44 Jet Holdings Inc v Patel [1990] 1 QB 335; and Clarke v Fennoscandia (No 2) 2001 SLT 1311.

45 cf cases at n 66.

46 Continental Bank NA v Aeakos Cia Naviera SA [1994] 2 All ER 540; The Angelic Grace [1995] 1 Lloyd's Rep 87 CA. Where the parties disagree on the question whether a choice of court or arbitration clause has been incorporated in the contract—or it suits one side later to cast doubt on this fundamental point—problems of circularity are present. Cf Egon Olderndorff v Libera Corporation [1995] 2 Lloyd's Rep 64, and [1996] 1 Lloyd's Rep 380 (see text at n 98).

47 cf in simpler days Mackender, above, per Diplock LJ, at 604: ‘Where parties have agreed to submit all their disputes under a contract to the exclusive jurisdiction of a foreign court, I myself should require very strong reasons to induce me to permit one of them to go back on his word.’

48 This matter is controversial: Tracomin SA v Sudan Oil Seeds Co Ltd (No 2) [1983] 3 All ER 140 (restraint by English court of party taking Swiss proceedings disregarding an English arbitration clause). See also Continental Bank v Aekos above. But see now Turner v Grovit, above.

49 Regulation 44, Art 35.

50 Judgments may not be re-opened as to substance (Reg 44, Art 36). This has implications for the finality of an EU Member State judgment which has pronounced, eg, on the scope of an exclusive jurisdiction clause, including perhaps the scope of an arbitration clause, though an arbitration clause normally is excluded from the Brussels remit. See The Heidberg, above, and see generally Benincasa, above. Also cases cited at Crawford, above, para 19.28; and A Briggs and P Rees, Civil Jurisdiction and Judgments (2nd edn LLP Professional Publishing London 1997) 7.07. A Member State's view of its own jurisdiction may not be reviewed in the general case: Reg 44 Art.35.

51 Leaving aside for now how ‘an EU context’ may be defined: cf Re Harrods (Buenos Aires) Ltd [1992] Ch 72 CA.

52 Turner v Grovit [2005] 1 AC 101. But this does not represent the current state of the law with regard to arbitration agreements, in respect of which anti-suit injunctions remain available: see Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd [2005] EWHC 455. Moreover there may be a question of identity, or not, of cause of action: see JP Morgan Europe Ltd v Primacom AG [2005] EWHC 508 (Commercial Court before Cooke J).

53 See discussion of Gasser, above.

54 ‘For the purposes of this Section, a court shall be deemed to be seised:

• at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant, or

• if the document has to be served before being lodged with the court, at the time when it was received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’

55 Civil Jurisdiction and Judgments Act 1982, s 41.

56 [2002] 1 AC 1. Contrast Dresser UK Ltd v Falcongate Freight Management Ltd [1992] 2 All ER 450 in the Court of Appeal. Prior to the entry into force of Regulation 44, Art 30, the situation was that Art 21 of the Brussels Convention (then applicable) should be interpreted to the effect that the court ‘first seised’ was the one before which ‘the requirements for proceedings to become definitively pending were first fulfilled, these requirements being determined in accordance with the national law of each of the courts concerned’ (Zelger v Salinitri Case 129/83 1984 ECR 2397).

57 Kennett, W ‘Current Developments: Private International Law’ (2001) 50 ICLQ 725, 731/2.CrossRefGoogle Scholar

58 Ibid 732, comments that perhaps a time limit within which further steps in the proceedings should be taken should have been imposed. On the other hand, it could be said that if a time limit had been mentioned, this could be conducive to circumvention by the defendant.

59 Briggs (n 50) p 83.

60 ie a case falling under Art 30.1.

61 Briggs (n 50) p 83

62 Ibid pp 83–4.

63 Ibid.

64 A ‘condition’ on the other hand does not carry this positive connotation and is neutral.

65 A much-litigated two-clause construction, which has been amended in Reg 44 by the provision of an autonomous concept by which to interpret ‘place of performance of the obligation in question’ in the majority of cases.

66 Boss Group Ltd v Boss Group France SA [1996] 4 All ER 970 which, on the facts, is authority for the further proposition that the plaintiff who resorts to that special jurisdiction may be the party who denies that a contract exists. In Boss Group, the plaintiff sought a declaration that no contract existed between plaintiff and defendant. The Court of Appeal overturned the decision of the courts below, holding that the special contractual jurisdiction under Art 5.1 is not confined to cases where the existence of a contract is unchallenged, and for enforcement or for damages for breach thereof, but ‘referred generally to matters relating to a contract’ But such a plaintiff must show a good arguable case, not that there was a contract (for that would surely prejudge and wrongfoot him), but that a matter relating to a contract was in issue between them—amply vouched in Boss Group by the fact that the defendant had sought in France to enforce the contract against him See to the same effect Halki Shipping Corp v Sopex Oils Ltd [1997] 3 All ER 833: where one side goes to court in defiance of an arbitration clause in the contract, justifying the action on the ground that the matter at issue does not fall within the arbitral remit; or that the arbitration clause was not incorporated into the contract. The courts have usually held to the contractual terms, deferring in favour of the curia. cf Owners of Cargo Lately Laden on Board the Tatry v Owners of the Tatry [1999] QB 515; The Angelic Grace [1995] 1 Lloyd's Rep 87. In Halki, the avoidance was based on the argument that since the defendant had no arguable defence, there was no ‘dispute’ within the meaning of the arbitration clause.

67 cf Apple Corps Ltd v Apple Computer Inc [2004] EWHC 768 (Ch).

68 Boss Group Ltd v Boss France SA (n 66), where however, the irony is that initiation of proceedings in England was by a party who sought the negative declaration that no contract existed between it and the defendants.

69 [1997] 3 All ER 833.

70 [1993] 4 All ER 456.

71 Civil Procedure Rules (CPR) 6.20; for contract, CPR 6.20(5). See Clarkson, CMV and Hill, J, Jaffey on the Conflict of Laws (2nd ednLexis Nexis UK London 2002) 104.Google Scholar

72 Per Lord Goff, at 467, after review of authority and departing from decision of Court of Appeal.

73 The leading proponents of characterization by the lex fori are Bartin and Kahn. But Despagnet and Wolff considered characterization by the lex causae to be an essential part of applying that law. Robertson takes a middle course, distinguishing between primary and secondary characterization. See generally AH Robertson Characterization in the Conflict of Laws (1940).

74 pace Briggs, AThe Conflict of Laws (OUP Oxford 2002) 16.Google Scholar

75 [1926] Ch 692.

76 eg Family Law Act 1986, s 50, which provides that if a divorce or annulment is worthy of recognition in England or Scotland, a party thereto may validly re-marry, in our view, here or abroad, notwithstanding any contrary view held by the personal law(s) (say domicile(s)) of the previously married party and his/her new partner. This legislative intervention does not regulate the reverse situation (where the personal law, but not the English or Scots forum, regards the consistorial decree as valid), a problem which therefore must be solved according to the common law (eg Schwebel v Ungar 1964 48 DLR (2d) 644). An equivalent to s 50 does not exist in Council Regulation (EC) No 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses, repealing Regulation (EC) No 1347/2000 (27 Nov 2003) (OJ 2003 L338/1), perhaps because in a system of virtually automatic recognition among Member States of consistorial decrees granted in a fellow Member State, differences of view among Member States on recognition are not expected—thoughs not impossible if there were different views on the application of Art 3 in the circumstances or a public policy objection (Art 22), even in its attenuated Brussels form (Art 25).

77 cf Wolff, MPrivate International Law (2nd ednClarendon Press Oxford 1950) 198.Google Scholar

78 Morris, JHCThe Conflict of Laws (McClean, D (ed)) (5th ednStevens London 2000) 509–12.Google Scholar

79 As in child abduction, arguably unwisely: Re JB (Child Abduction) (Rights of custody: Spain) [2004] 1 FLR 796; and, in an Australian forum, in tort: Mercantile Mutual Insurance v Neilson [2004] WASCA 60 (5 Apr 2004).

80 Albeko Schumaschinen & Co v Kamborian Shoe Machine Co Ltd (1961) 111 LJ 519.

81 Art 8: ‘1. The existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this Convention if the contract or term were valid. 2. Nevertheless a party may rely upon the law of the country in which he has his habitual residence to establish that he did not consent if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in the preceding paragraph’ The Art 8.2 proviso was inserted to guard against the effect of domestic rules of the putative lex causae which were thought unacceptable—exorbitant, one might say: eg that silence by offeree denotes acceptance. See M Giuliano and P Lagarde Report on Rome I (1980) OJ C282 23 (31/10/80) 29. The Green Paper on the Conversion of the Rome Convention of 1980 into a Community Instrument and its Modernization (COM (2002) 654) makes no recommendation for change to the terms of Art 8.

82 To its full logical or illogical extent: Household Fire and Carriage Accident and Ins Co v Grant (1879) 4 Ex D 216.

83 The Scottish Law Commission in Report No 144 (1993) on ‘Formation of Contract: Scottish Law and the United Nations Convention on Contracts for the International Sale of Goods’, criticized the rule, and recommended its replacement by a rule that to be effective an acceptance must be received by the offeror. See pt IV, and Draft Bill, sch 1, cl 9(2). There has been no implementing legislation. An offer can be retracted at any time before posting of an acceptance. Where an offer and the retraction thereof arrived at the same time at the house of the offeree, the court in Scotland has held the retraction to be effective: Dunmore v Alexander (1830) 9 S 190, in which, therefore, Lady Agnew's maid, Betty Alexander, found that she had the status merely of putative maid of the Countess of Dunmore. See generally H MacQueen and J Thomson Contract Law in Scotland (Lexis Nexis UK Edinburgh 2000) 2.29 et seq.

83 See MacQueen, H ‘Scots and English Law: The Case of Contract’, JAC Thomas Lecture, delivered at University College, London, 15 Mar 2001.Google Scholar

84 Telephone/telex/e-mail: see Entores v Miles Far East Corporation [1955] 2 QB 327, as re-evaluated, approved and potentially widened by House of Lords in Brinkibon Ltd v Stahag Stahl [1982] 1 All ER 293.

85 (1961) 111 LJ 519.

86 [1982] 2 Lloyd's Rep 351. See also Union Transport plc v Continental Lines SA [1992] 1 WLR 15, discussed, together with the potential demerits of the putativity approach, in Dicey & Morris, 32–151 et seq (material validity).

87 [1970] AC 583, in which the House of Lords distinguished between the law governing the curial procedure and the law governing the contract which contained the curial clause; and, further, held that the existence of a curial (arbitration) clause was merely one factor among many which ought to be taken into account in identifying the proper law in the absence of express choice, and was no longer to be considered a determining factor.

88 On the reasoning that there was a good arguable case that a contract existed, its governing law being English law, the case fell within the then RSC Ord 11 allowing the English court to take jurisdiction by permitting service out of the jurisdiction. (The defendants could have complained that they had been ‘landed’ in a court rather than in an arbitration room, but, having been offered arbitration, they refused it).

89 At 353. Noting, however, that the putativity argument had not been put to Bingham J at first instance.

90 See Mackender v Feldia AG [1967] 2 QB 590 above. Or even whether a choice of law is effective—very circular, very much ‘bootstraps’ argument: see Egon Olderndorff v Libera [1995] 2 Lloyd's Rep 64 below. This is in accordance with the rule in Brussels jurisdiction: Boss Group v Boss Group France SA [1996] 4 All ER 970, above at n 66.

91 The Angelic Grace, above; Egon Olderndorff v Libera above.

92 1999 GWD 22–1065; reversing single judge 1999 GWD 13–622. See discussion at Part I, above.

93 [2003] I.L.Pr 25. See, on appeal [2004] 1 Lloyd's Rep702.

94 [2003] I.L.Pr 25, paras 23 and 24. Admittedly in para 22, Mr Hirst refers to English law to the effect that even if M did not trouble to read the agreement, he was bound by its terms.

95 At para 24.

96 [2004] 1 Lloyd's Rep 702 at para 22. Mance LJ noted that evidence of Monegasque law suggested that any claim based on alleged negligent misrepresentation in the catalogue would probably be regarded by that law as arising in contract rather than tort.

97 Where the events constituting a tort occur in different countries, the applicable law is the law of the country in which the most significant element or elements of those events occurred. On these facts, the most significant elements of ‘a continuum of activity, starting in England’ occurred in Monaco. But had application of s 11, in the court's view, pointed to England, would the presence of an express choice of law in contract have been admissible as ‘a factor connecting the tort’ with Monaco, in terms of s 12? This was a matter which Mr Hirst at first instance raised, but was disinclined to answer, as unnecessary. Similarly, in the Court of Appeal, the matter is touched upon speculatively, and obiter, but, it is thought, positively, by Mance LJ, at para 23, ‘In general terms, it would seem odd, if an express choice of law were not at least relevant to the governing law of a tort.… Further, one should not forget that cl 9.1 not only deals with governing law, but provides for submission to the non-exclusive jurisdiction of the Monegasque courts. It may be open to argument that that itself constitutes a “factor connecting the tort” to Monaco. The Judge did not decide any points relating to s 12, and, since we do not have to do so either, I prefer to leave them all open.’

98 [1995] 2 Lloyd's Rep 64.

99 Relying on Rome I, Arts 3.1 and 8.1 (rejecting the defendants' invocation of Art 8.2).

100 Kenburn Waste Management Limted v Bergmann [2002] I.L.Pr 33, in the decision of Pumphrey J, and confirmed on appeal.

101 William Grant & Sons International Ltd v Marie Brizard Espana SA 1998 SC 536; and Ferguson Shipbuilders Ltd v Voith Hydro GmbH & Co KG 2000 SLT 229.

102 cf nn 130 and 131, below.

103 Albeit homeward walking. The effect is that this decision has added to a number handed down recently by the English courts, demonstrating a fondness for the use of Art 4.5: Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH (No 2) [2001] 4 All ER 283; and Samcrete Egypt Engineers & Contractors SAE v Land Rover Exports Ltd. [2001] EWCA Civ 2019, [2002] CLC 533. See also Green Paper on the Conversion of the Rome Convention of 1980 into a Community Instrument and its Modernization (COM (2002) 654), at 3.2.5.

104 [1971] 3 All ER 163 (contract between a Dutch company, itself a subsidiary of a Texan company, which employed personnel of many nationalities to service off-shore oil drilling operations in many locations and an Englishman to be employed as a derrickman on one of the company's rigs off the coast of Nigeria).

105 cf other positive impetuses, eg, in favour of marriage (Hill [1959] 1 WLR 127; Mahadervan [1964] P. 233); wills where, famously, renvoi was employed: Collier v Rivaz (1841) 2 Curt. 855. In the same way with the circular problem of status and domicile, the desire to apply the domicile of a parent by whose personal law the child will be legitimate: cf Anton (1st edn op cit) 346; see n 128, below.

106 Coast Lines Ltd v Hudig & Veder Chartering NV [1972] 2 QB 34 per Lord Denning MR at 44. In Hamlyn & Co v Talisker Distillery (1894) 21 R (HL) 21, the contract was held to have an English proper law, by which the arbitration clause was valid (any dispute to be ‘settled by two members of the London Corn Exchange, or their umpire, in the usual way’). It was then a requirement of Scots law that arbitrators/arbiters be named; lack of name could not be regarded as a fundamental affront to Scots public policy; and indeed Scots law on the point was changed soon after by Arbitration (Scotland) Act 1894.

107 (1865) 3 PC Moore (MS) 272.

108 (1889) 42 Ch D 321.

109 [1972] 1 WLR 680.

110 [1982] 3 All ER 841: see, however, per May LJ, at 848, to the effect that the enforceability or unenforceability of the agreement by a particular law is irrelevant in the search for the law of objective closest and most real connection.

111 (1894) 21 R (HL) 21, 23.

112 cf re domicile, n 126, below.

113 (1958) by JHC Morris.

114 Citing as examples of its use NV Handel Maatschappij J Smits v English Exports (London) Ltd [1955] 2 Lloyd's Rep 137 (CA) and P & O Steam Navigation Co v Shand op cit (rejected in British South Africa Co v De Beers Consolidated Mines Ltd [1912] AC 52.

115 Admittedly in specialized areas of choice of jurisdiction (unsurprising) and choice of law (surely more debateable), in favour of permitting party choice of jurisdiction, or of choice of law only after the event: Draft Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (‘Rome II’), Preamble, recital 16, and Art 10(1). As to jurisdiction, see the protective wording of Council Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters: Arts 13 (insured persons), 17 (consumers) and 21 (employees). See JM Carruthers and EB Crawford ‘Variations on a Theme of Rome II. Reflections on Proposed Choice of Law Rules for Non-Contractual Obligations: Part I’ (2005) Edinburgh Law Review 9 65, at 82 et seq.

116 Overtaken by Rome I, Arts 3 and 4, largely, though Art 4.5 would seem to afford recourse to either of the former approaches in a forum sympathetic to such an exercise. While Art 3 (express choice of law) affords a small leeway to permit choice to be inferred other than from express terms (eg from previous course of actings), it does not authorize wide-ranging judicial investigations into parties’ intentions. Giuliano and Lagarde, at 18: ‘This Article does not permit the court to infer a choice of law that the parties might have made where they had no clear intention of making a choice.’

117 eg The Assunzione [1954] 1 All ER 278, 292, per Singleton LJ: ‘One must look at all the circumstances, and one must seek to find what just and reasonable persons ought to have intended if they had thought about the matter at the time when they made the contract.’

118 Though by giving effect to best intentions, we deny to the other side the opportunity which the law affords to make the best tactical use of the situation which has arisen.

119 Re Bonacina [1912] 2 Ch 394; cf Private International Law (Miscellaneous Provisions) Act 1995, s 9(2) (tort).

120 See House of Lords, European Union Committee, 8th Report of Session 2003–4. HL Paper 66, published 7 Apr 2004 (henceforth ‘the Scott Report’). See JM Carruthers and EB Crawford ‘Variations on a Theme of Rome II. Reflections on Proposed Choice of Law Rules for Non-Contractual Obligations: Part I’ (2005) 9 Edinburgh Law Review 65.

121 See Carruthers and Crawford ‘Variations on a Theme of Rome II. Reflections on Proposed Choice of Law Rules for Non-Contractual Obligations: Part II’ Edinburgh Law Review 9 (2005) 238. Also Draft Report Revised Version on the proposal for a European Parliament and Council regulation on the law applicable to non-contractual obligations (‘Rome II’) (COM (2003) 427-C5- 0338/2003–2003/0168 (COD)) (5 Apr 2004), Rapporteur Diana Wallis MEP.

122 cf n 28.

123 The most likely ground of jurisdiction of a court in the UK is qua domicile of the defendant under Art 2, since Reg 44 introduced no special rule of jurisdiction for restitutionary matters. Kleinwort Benson Ltd v Glasgow District Council [1997] 4 All ER 641.

124 UK Reservation in respect of Art 10.1.e. See Giuliano and Lagarde Report OJ C282 31.10.80, 33.

125 See eg Smijth v Smijth 1918 SLT 156 (question of status as legitimate of children of a putative (Scots?) marriage. The doctrine in Scots law of a putative marriage demonstrates a benevolent attitude, with a willingness to concede that some of the incidents of marriage (legitimate status of children) may attach to a relationship which in law does not amount to marriage. The requirement is that the ‘marriage’, to qualify as putative, must have been entered into in the bona fide belief by one or both parties that there was no impediment to the marriage. It is generally thought that the error must have been factual and not of law.

126 cf the importance of tempus inspiciendum in the ascertainment for any given purpose of the domicile of the propositus: usually for purposes of succession: Bell v Kennedy (1868) 6 M (HL) 69; Re Flynn, Deceased [1968] 1 All ER 49; Morgan v Cilento [2004] All ER (D) 122; In the Estate of Fuld, No 3, above; Re Furse, Furse v IRC [1980] 3 All ER 838; Winans v Attorney General [1904] AC 287; Liverpool Royal Infirmary v Ramsay 1930 SC (HL) 83; and Re Lloyd Evans [1947] Ch 695. In the most recent example of Morgan, above, where acquisition of domicile of choice had been established but it was suggested that the enthusiasm of the propositus for that legal system might have waned by the date of his death, it was held in the Court of Appeal that it did not die before he did (para 76). The connecting factor of habitual residence may admit conjecture by the court as to what might happen in the future (‘the projection argument’: Crawford ‘A Day is Not Enough: Further Views on the Meaning of Habitual Residence’ (2000) JR 89, at 93 and 98).

127 Proposed to be changed, in Scots law, by means of and in terms of the Family Law (Scotland) Bill clause 16: ‘(1) A person who is under 16 years of age shall be domiciled in the country with which the person has for the time being the closest connection. (2) The presumptions in subsection (3) shall apply in determining for the purposes of subsection (1) the country with which a person has the closest connection…’.

128 Law Reform (Parent and Child) (Scotland) Act 1986, s 9.

129 Wolff (n 77) p 109; Anton, AEPrivate International Law (1st ednW Green & Son Edinburgh 1967), 345–6. The Scottish Law Commission proposed in 1992 that s 1(1) of the Law Reform (Parent and Child) (Scotland) Act 1986 be amended to the effect that ‘no one whose status is governed by Scots law shall be illegitimate’. But how will it be decided whose status shall be governed by Scots law?Google Scholar

130 Chappelle [1950] P 134; Gray v Formosa [1963] P 259; and Lepre [1965] P 52.

131 As in Prawdziclazarska 1954 SC 98, in which the Scots ‘forum’ by its own rule would take jurisdiction qua locus celebrationis only if the marriage was void. See also De Reneville [1948] P 100, where the parties neglected to offer to prove the French law which in the view of the English forum would have been the lex causae. The effect was very circular, in that the forum, by default, perforce applied the substance of its own law on the topic of legal effect of wilful refusal to consummate, in order to decide whether the marriage was void or voidable, in order thereby to determine whether it had jurisdiction. In the event, it had not jurisdiction because the marriage, by this reasoning being voidable, the wife's dependent domicile was French.

132 In these circumstances, North advises that recognition is not possible. Cheshire, and North's, Private International Law (North, and Fawcett, (eds)) (13th ednLexis Nexis UK 1999) 808.Google Scholar