1
LECTURE 1: SUBJECT
● Private international law = conflicts between individuals from different countries
which does not concern states
● English common law is normally applied in international contract disputes → number
1 in the world
○ Even if the country has no connection with UK law
● Country meaning: any territorial unit having their own legal system even if they are
not independent nation
○ US states are countries (different states have different legal systems)
○ UK: Scotland is a separate country from UK as it has its own legal system but
Wales is not
○ HK: country different from China
● Common Law VS European rules
○ Rule of conflict of laws differ from country to country
○ Particularly significant differences between common law countries and civil
law countries
○ Common law: more flexible rules, emphasis on judge discretion, fairness
○ Civil law: more rule based and more certain
● International governing bodies -- Slow progress of these conventions though
○ Hague Conference on PIL
■ To ensure countries agree on the same rules of PIL when dispute arises
■ Clear rules for law enforcement and jurisdiction of courts
■ Problems of HCCH: the convention has no effect until the country
rectify it → slow process, little impacts
● China: refuse to ractify the conventions as it deems the
rectification an intrusion of its sovereignty
○ UNCITRAL
○ UNIDROIT
■ Conventions involving mobile phone agreements…
Questions to be answered by COL rules
(1) Should HK courts have ● E.g. should HK hear the case that has no
the jurisdiction over the connection to domestic law
, 2
matter? (place) ● Is HK the appropriate forum?
● Involves the extend to allow forum shopping
○ Forum shopping = to stop a person
bringing the claim in the jurisdiction that
will give them the best result
● Forum conveniens → factor to decide whether
HK court has the jurisdiction
(2) Should HK law apply? ● Many areas of law if jurisdiction of HK court
(law) applies, the domestic law will apply
○ Family, contract..
● Other cases e.g. PRC contract law
(3) Should a court in one /
country recognise and
enforce a court
judgement obtained in
another country?
(Enforcement of
judgements)
Reasons for these rules:
● Encourage commercial activities
○ Clear rules to which law to apply
● Minimise forum shopping
● Avoid parallel proceedings
● Achieve justice
● Principle of res judicata (the principle that a cause of action may not be relitigated
once it has been judged on the merits)
○ Rules on finality
● Principle of Comity = Respect for other legal systems in the world
○ HK court is slow to conclude that a party would not get a fair trial if
proceedings were allowed to commence in a foreign court and that
interference in foreign proceedings
○ E.g. by use of anti-suit injunctions to stop the foreign proceedings, should be
kept to a minimum.
○ Judicial sovereignty has been replaced by judicial comity -- Diplock
, 3
1. General rules concerning COL
(a) Characterisation/ clarification of issue in dispute
● Ask: Is the issue a substantive or procedural one?
● If the issue is classified as procedural by HK courts, it will apply its own domestic
HK law on procedural issues (lex fori), even though it is applying the foreign
substantive law to the dispute.
● = HK court will only apply foreign substantive law but not the foreign
procedural rules
● E.g. if HK court decides Mainland law applies, only substantive law of Mainland
applies, procedural rules applicable is HK law.
Substantive or Procedural? → look at whether foreign law talks about how remedies
will be enforced
Poyser v Minors ● Lush LJ defined procedure as “the mode of proceedings
by which a legal right is enforced, distinguished from the
law which gives or defines the right”
Substantive Procedural
● About issue on legal rights ● About issue on enforcement of rights
● Where foreign law applies -- Lex (i.e. remedies)
causae ● The court hearing the case will apply its
own law to the matter
● Disregard the procedural rules of
foreign law
● HK: will always apply lex fori → use
HK own procedural law
Example: Example:
● Liability ● Assessment of damages
● Causation ● Limitation periods
● Remoteness of damages ● Burden of proof
● Mitigation of loss ● Quantification of tortious damages
● Heads of damages (pain and
suffering, loss of earnings…)
● Contract interpretation
, 4
Wide definition of “procedural” in common law
● Controversial distinction → judges are more favoured to claim back the own
domestic rules and claim that “procedural issues”
● Even if there is a choice of law provisions in the agreement, judge can widely
interpret the issue as procedural to apply its domestic rules
● Less application of foreign law, more use of domestic law
Examples of characterisation and connecting factors:
Legal category -- Characterisation Connecting factors that connect the legal
category to the applicable law
Formal validity of marriage Lex loci celebrationis: law of the place where
marriage is celebrated/ occurred
Capacity of marriage Lex domicilii: law of the domicile of both
parties at the date of marriage
Succession to movable property: Lex domicilii ultimi: law of deceased’s domicile
validity at date of his death
Succession to movable property: Lex domicilii: law of the deceased’s domicile at
construction of will date will was made
Succession to movable property Lex situs: law of the country which property is
situated
Procedure Lex fori: domestic law of the forum
Transfer of property in land or goods Lex situs: law of the country here the land or
goods were situated when transfer took place
Tort committed abroad Lex fori; lex loci delicto commissi (place where
tort is committed)
Formal validity of contract Proper law of the contract (country that is most
closely connected to the contract)
Lex loci contractus: law of the place where
contract was made
Contracts Proper law of the contract (depending on the
facts that this could be the lex loci contractus)
LECTURE 1: SUBJECT
● Private international law = conflicts between individuals from different countries
which does not concern states
● English common law is normally applied in international contract disputes → number
1 in the world
○ Even if the country has no connection with UK law
● Country meaning: any territorial unit having their own legal system even if they are
not independent nation
○ US states are countries (different states have different legal systems)
○ UK: Scotland is a separate country from UK as it has its own legal system but
Wales is not
○ HK: country different from China
● Common Law VS European rules
○ Rule of conflict of laws differ from country to country
○ Particularly significant differences between common law countries and civil
law countries
○ Common law: more flexible rules, emphasis on judge discretion, fairness
○ Civil law: more rule based and more certain
● International governing bodies -- Slow progress of these conventions though
○ Hague Conference on PIL
■ To ensure countries agree on the same rules of PIL when dispute arises
■ Clear rules for law enforcement and jurisdiction of courts
■ Problems of HCCH: the convention has no effect until the country
rectify it → slow process, little impacts
● China: refuse to ractify the conventions as it deems the
rectification an intrusion of its sovereignty
○ UNCITRAL
○ UNIDROIT
■ Conventions involving mobile phone agreements…
Questions to be answered by COL rules
(1) Should HK courts have ● E.g. should HK hear the case that has no
the jurisdiction over the connection to domestic law
, 2
matter? (place) ● Is HK the appropriate forum?
● Involves the extend to allow forum shopping
○ Forum shopping = to stop a person
bringing the claim in the jurisdiction that
will give them the best result
● Forum conveniens → factor to decide whether
HK court has the jurisdiction
(2) Should HK law apply? ● Many areas of law if jurisdiction of HK court
(law) applies, the domestic law will apply
○ Family, contract..
● Other cases e.g. PRC contract law
(3) Should a court in one /
country recognise and
enforce a court
judgement obtained in
another country?
(Enforcement of
judgements)
Reasons for these rules:
● Encourage commercial activities
○ Clear rules to which law to apply
● Minimise forum shopping
● Avoid parallel proceedings
● Achieve justice
● Principle of res judicata (the principle that a cause of action may not be relitigated
once it has been judged on the merits)
○ Rules on finality
● Principle of Comity = Respect for other legal systems in the world
○ HK court is slow to conclude that a party would not get a fair trial if
proceedings were allowed to commence in a foreign court and that
interference in foreign proceedings
○ E.g. by use of anti-suit injunctions to stop the foreign proceedings, should be
kept to a minimum.
○ Judicial sovereignty has been replaced by judicial comity -- Diplock
, 3
1. General rules concerning COL
(a) Characterisation/ clarification of issue in dispute
● Ask: Is the issue a substantive or procedural one?
● If the issue is classified as procedural by HK courts, it will apply its own domestic
HK law on procedural issues (lex fori), even though it is applying the foreign
substantive law to the dispute.
● = HK court will only apply foreign substantive law but not the foreign
procedural rules
● E.g. if HK court decides Mainland law applies, only substantive law of Mainland
applies, procedural rules applicable is HK law.
Substantive or Procedural? → look at whether foreign law talks about how remedies
will be enforced
Poyser v Minors ● Lush LJ defined procedure as “the mode of proceedings
by which a legal right is enforced, distinguished from the
law which gives or defines the right”
Substantive Procedural
● About issue on legal rights ● About issue on enforcement of rights
● Where foreign law applies -- Lex (i.e. remedies)
causae ● The court hearing the case will apply its
own law to the matter
● Disregard the procedural rules of
foreign law
● HK: will always apply lex fori → use
HK own procedural law
Example: Example:
● Liability ● Assessment of damages
● Causation ● Limitation periods
● Remoteness of damages ● Burden of proof
● Mitigation of loss ● Quantification of tortious damages
● Heads of damages (pain and
suffering, loss of earnings…)
● Contract interpretation
, 4
Wide definition of “procedural” in common law
● Controversial distinction → judges are more favoured to claim back the own
domestic rules and claim that “procedural issues”
● Even if there is a choice of law provisions in the agreement, judge can widely
interpret the issue as procedural to apply its domestic rules
● Less application of foreign law, more use of domestic law
Examples of characterisation and connecting factors:
Legal category -- Characterisation Connecting factors that connect the legal
category to the applicable law
Formal validity of marriage Lex loci celebrationis: law of the place where
marriage is celebrated/ occurred
Capacity of marriage Lex domicilii: law of the domicile of both
parties at the date of marriage
Succession to movable property: Lex domicilii ultimi: law of deceased’s domicile
validity at date of his death
Succession to movable property: Lex domicilii: law of the deceased’s domicile at
construction of will date will was made
Succession to movable property Lex situs: law of the country which property is
situated
Procedure Lex fori: domestic law of the forum
Transfer of property in land or goods Lex situs: law of the country here the land or
goods were situated when transfer took place
Tort committed abroad Lex fori; lex loci delicto commissi (place where
tort is committed)
Formal validity of contract Proper law of the contract (country that is most
closely connected to the contract)
Lex loci contractus: law of the place where
contract was made
Contracts Proper law of the contract (depending on the
facts that this could be the lex loci contractus)
