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Seminar 7: Choice of Law: Macmillan
Seminar 7: Choice of Law: Macmillan
Seminar 7: Choice of Law: Macmillan
Facts:
Argument:
o English law proper law bc it governed the bonds an dforeign legislation cannot vary it.
o Therefore foreign legislation could not vary terms so as to substitute one party for
another: NO.
English law cannot be used to substitute one party for another, so therefore, bonds cannot be
enforced since they had to use Greek legislation.
Cannot seek benefit of English law for one thing and Greek for another. There is a purposive
approach, not instrumental -> the ultimate result matters so should end up
Macmillan:
Facts:
o Shares in NY corp.
Held: It is not breach of trust, but priority in terms of ownership of shares. Once determined that,
the connecting factor, since it relates to ownership of shares, it is determined by (3 theories) that
lead to NY:
o Place of incorporation.
Raiffeisen
Facts:
Argument: If insurance under British law, would be valid; but if location applied, would be
French, thus invalid.
o If not
Facts:
o Proceeding on a maritime lien (plane under maritime rules). Action in rem against a
ship.
Argument: Cannot have a maritime lien in Aus if there is not in Aus that concept.
Judgment:
o Ship registered in HK, went to Turkey and the charger entered into a contract for supply
of gas.
o There is a maritime lien against ship arising from a contract in Turkey.
o Which rule will we use and wshich caracterisation method will be used?
o Even if it was US law and that maritime lien arose form that law, that wouldnt
necessarily categorise in AUS as maritime lien.
o Does s. 15 maritime lien that only rises under Aus Law? No, bc aus doesnt recognize
foreign maritime lien, but have to characterize foreign rights.
o If use only US law
o 2. Characterise the law (so that can be identified by reference to its law).