“An English court should solve problems of characterisation by applying the only concepts with which it is familiar, namely those of the forum.” Discuss the proposition critically with reference to decided cases

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7 pages

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01/15/2009

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Table of Contents “An English court should solve problems of characterisation by applying the only concepts with which it is familiar, namely those of the forum.”  Discuss the proposition critically with reference to decided cases Table of Contents

 
  1. Introduction.
  2. Classification of the cause of action.
    1. The definition list of the available categories or characterizations.
    2. The case of Ogden v Ogden.
    3. Characterizing laws as either procedural or substantive.
  3. How should the court solve problems of characterisation? Alternative theories.
    1. The lex fori theory.
    2. The lex causae theory.
  4. Conclusion: English courts and characterisation.
  5. Bibliography.

Abstract

The english conflict of laws is a body of rules whose purpose is to assist an english court to deal with cases tried before it which contain a foreign element. It consists of three main topics: (i) the jurisdiction of an english court, in the sense of its competence to hear and determine a case; (ii) the selection of the appropriate rules of a system of law, english or foreign, which it should apply in deciding a case over which it has jurisdiction (in appropriate cases the english court can apply a foreign law to resolve a legal issue. The rules governing this selection are known as 'choice of law' rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations. Having established that choice of law rules can lead to the application of either english or a foreign law, this essay will attempt to explain why an english court should solve problems of characterisation by not just applying the only concepts with which it is familiar, namely those of the forum.

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