Examiners’ reports 2023

Examiners’ reports 2023

LA3014 Conflict of laws – Zone B

Introduction
The technique for dealing with Conflict of laws examination questions is
fundamentally not different to the one utilised for other law subjects. As such, the
most important requirement for answering law questions, whether these are essay or
problem questions, is that the arguments put forward must be backed with authority.
This means that students will be required to memorise a considerable number of
cases and, for exam purposes, they should be able to cite the name of the case and
briefly describe the facts as well as the legal principle that the case established.
A further point to be made is that, as it is quite typical in law examination questions
that there is not usually a right or wrong answer, what matters is that candidates
demonstrate knowledge of the area of law. It should be noted that high marks will be
awarded when students cast their own critical eye in relation to the issues at hand.
Time management is very important in exam situations, so any time spent reading
the questions and planning answers before starting will help maximise knowledge
and understanding of the topics. Students should always remember that, even if they
know less about a specific question that they would like, they are still likely to write
better answers if they adopt a more planned approach, manage their time
appropriately and avoid spending too much time on any one question.
When it comes to essay questions, what is usually required is an evaluation of the
present state of the law, which highlights any areas of ambiguity around the topic.
This enables the student to show knowledge of the law by identifying the legal issues
and policy considerations relating to the essay topic.
Essay questions will almost always require the student to analyse the factual content,
highlight any problem in the law and suggest possible reforms. The presence of terms
like ‘critically discuss’ or ‘critically evaluate’ in a question signifies that students should
adopt an analytical approach and avoid a mere description of the situation. While it
is not mandatory to cast a critical eye on every provision described, a discussion
should nevertheless take place and students should not hesitate or be afraid to apply
an opinion of their own.
Finally, the importance of structure in an essay question should not be
underestimated. Although the precise structure will depend on the question, an essay
should have an introduction, main discussion and a conclusion, and if a question is
divided into two or more parts, that structure should be reflected in the student’s
answer.
Unlike essay questions, problem questions would not normally require students to
address complex theoretical issues and that could sometimes make them easier to
answer. Nevertheless, what is often observed is that, when dealing with problem
questions, students face timing issues. That takes the form of allocating excessive

1
time to minor or irrelevant issues, with the result being that not enough time is left to
address the main issues.
The first task when dealing with a problem question is to read the question thoroughly
and ensure that particular attention is paid to the words that are used to describe the
situation.
It should always be borne in mind that what examiners are looking for is an
understanding of the law and an ability to apply it to the particular facts given. An
important point to make here is that, whereas problem questions are not usually
seeking a critical analysis of the law, it is always useful that students provide their
own view on the situation, particularly when the area of law under consideration is
problematic.
In terms of structure, introduction and conclusion are less important for problem
questions than for essay questions. An introduction can simply take the form of
highlighting the issues raised by the question or, when students are asked to ‘advise’
a person, what kind of outcome that person will be looking for. A conclusion is not
always necessary but may nevertheless be useful for the purposes of summarising
what has been said.
As far as the main part of the answer is concerned, it may be appropriate to deal with
the problem chronologically, or it may be suitable to group specific issues together.
In any case, the order is of no significance if the proper discussion takes place.
Sometimes a problem question can appear daunting because of the number of issues
that need to be addressed in the time available. It is a crucial step in an examination
situation to formulate a complete answer in that respect and a suggestion to achieve
this is to draw a diagram or chart, which sets out the problem and the issues. This
will help to distinguish the most important issues from the less significant ones and
may even lead to some of the issues initially identified not being included into the final
answer. A well-planned answer should ensure that only considerations of major
importance for the issue at hand are considered.

Comments on specific questions

Question 1
‘In order to solve the conflict of characterisation, English courts adopt a
flexible approach.’
Discuss.
General remarks
Students will need to define characterisation and demonstrate how it is relevant
under the common law regime on conflict of laws. They should discuss the lex fori
and the lex causae approaches in light of the case law.
Law cases, reports and other references the examiners would expect you to use
De Nicols v Curlier (1900), Ogden v Ogden (1908), Re Maldonado (1954).
Common errors
Inadequate understanding of characterisation and its purpose and failure to
substantiate arguments by referring to the relevant case law were common errors.
A good answer to this question would…
enter into a discussion of when questions of characterisation are most likely to
arise. It would then consider the lex fori and lex cause approaches and, by referring
to the relevant case law, provide a view on whether English courts adopt any

2
 Examiners’ reports 2023

particular theory of characterisation (and whether they are consistent in that

respect). It would finally indicate where the principal difficulties in characterisation
arise.
Poor answers to this question…
failed to properly discuss and demonstrate an understanding of the approaches to
characterisation. Little or no reference to the relevant case law.
Question 2
‘The decision in Spiliada had rendered the English approach to the forum non
conveniens doctrine much more congruent with the interdependent world of
the latter parts of the 20th century and respectful of the comity of nations.’
Discuss.
General remarks
This is a good opportunity to discuss the powers of the English court in granting
stay on the ground of forum non conveniens. This will occur when the court is
satisfied that there is some other available forum having jurisdiction, which is the
appropriate forum for trial of the action.
Law cases, reports and other references the examiners would expect you to use
Spiliada (1987), The Abidin Daver (1984), Mohammed v Bank of Kuwait (1996), Askin
v Absa Bank (1999), Connelly v RTZ Corp, Rockware Glass Ltd v MacShannon
(1978), European Asian Bank AG v Punjab and Sind Bank (1982), Lubbe v Cape
(2000).
Common errors
Limited or no reference to the relevant case law and insufficient analysis of the
reasons that led to the adoption of the doctrine as well as the two-stage test applied
in order to determine whether the English court or the alternative forum is
appropriate were common errors.
A good answer to this question would…
initially discuss how, because of cases decided in the 1970s and 1980s, the House
of Lords moved from the position that a stay would be granted only if the English
proceedings were vexatious or oppressive, to the modern position that a stay should
be granted if a forum is available that is more appropriate than the English court. In
that respect, it would refer to the seminal Spiliada case and the speech of Lord Goff.
It would then describe the two-stage test that an English court would employ in order
to determine whether, in the event that the defendant satisfies the court that there is
another available forum having competent jurisdiction, the appropriate forum is the
English court or the alternative one. Additional marks are awarded when the answer
includes references to the effects of a dispute resolution clause.
Poor answers to this question…
failed to understand the importance of Spiliada in the development of the doctrine of
forum non conveniens. Additionally, they simply referred to the two-stage test without
providing details of the relevant connecting factors that the judge must consider
during the first stage in order to decide whether the English court or the foreign one
is the appropriate forum. They also failed to understand that the second stage of the
test is only considered if the court, having regard to the relevant connecting factors
at the first stage, feels that the dispute is more closely connected with a foreign court.

3
Question 3
‘The continued existence of the doctrine of renvoi should make one suspect
that it fills a vital practical need in the field of the conflict of laws.’
Discuss.
General remarks
While the doctrine of renvoi is recognised as one of the key doctrines in conflict of
laws, it is not without criticism. The doctrine is applied to formal and intrinsic validity
of wills; cases of intestate succession; legitimation by subsequent marriage;
matrimonial property; etc. The application of the law is largely dependent on
evidence of experts (Re Duke of Wellington (1947)). The question presents a good
opportunity to demonstrate a clear understanding of one of the key doctrines of
conflict of laws. Students should engage in a general discussion on the concept of
renvoi. They should distinguish between double and single renvoi. Mention should
be made of the option that courts in different jurisdictions have to simply ignore the
issue entirely. Better answers will also discuss the application of the principle by
English courts.
Law cases, reports and other references the examiners would expect you to use
Collier v Rivaz (1841), Re Annesley (1926), Re O’Keefe (1940) and R v Brentwood
Superintendent Registrar of Marriages (1968).
Common errors
Failure to demonstrate a clear distinction between the different variations of renvoi
was a common error and to provide sources and references to the relevant case
law.
A good answer to this question would…
demonstrate a clear understanding of the variations of renvoi. It would highlight the
different academic views on the suitability or otherwise of the concept in conflict of
laws situations and provide a critical analysis. It would quote an adequate number
of cases decided by English courts.
Poor answers to this question…
were descriptive with limited or no critical analysis of the issue at hand. There was
limited or no reference to the relevant case law.
Student extract
Renvoi is a doctrine within private international law (or conflict of laws) in
which courts refer back to the conflict rules of another jurisdiction to
determine how to apply the law. Renvoi arises when a court in one
jurisdiction is faced with presiding or ruling on a legal issue that is connected
to another, or multiple other, jurisdictions.
Renvoi was required because, whilst the conflict rules within the forum itself
may be clear, there is not always an indication of which rules from other
jurisdictions should apply to the case, and there are two types of renvoi to
support decisions. Firstly, in a single renvoi scenario the referring jurisdiction
adopts the conflict of laws rules of the receiving jurisdiction and then applies
the substantive law of that jurisdiction. Therefore, the conflict of laws rules
are 'received' by the referring jurisdiction, as applied in Re Forgo where the
French court had a single renvoi and so applied French law to decide the
case. Secondly, in double renvoi the jurisdictional court adopts the conflict of
laws rules of the receiving jurisdiction as well as the conflict of laws rules,
thus applying the law that the jurisdiction would apply. Double renvoi leads to
a circular process, potentially resulting in a continuous loop back and forth

4
 Examiners’ reports 2023

between jurisdictions, as outlined by the court in Re: Denley's Trust Deed

1969.
Whilst renvoi can be seen as controversial and it hasn't been widely accepted
by the UK courts or all jurisdictions, it does have potential benefits in solving
conflicts between jurisdictions and thus fulfils a practical need in the field. For
example, renvoi allows flexibility and fairness based on a nuanced approach
to conflict of laws issues.
Comments on extract
The answer begins by providing a definition of renvoi, which is a good approach
when it comes to dealing with an essay question. The candidate proceeds to
provide a rationale for the use of renvoi which, despite appearing fairly simplistic,
indicates that the student has an understanding of the concept. The answer then
goes on to provide a definition of renvoi and its variations (single and double or total
renvoi). This statement, followed by the supporting arguments, sets the scene for
the analysis. The answer also benefits from an early reference to some of the case
law in the area. Therefore, the opening paragraphs of this answer demonstrate
adequate evidence that the student has a good grasp of the issue under
examination.
Question 4
‘The persistence and tenacity of the domicile of origin implies that it returns
as a boomerang during one’s lifetime, and even after one’s death.’
Discuss.
General remarks
Students should emphasise the importance of domicile as a connecting factor in the
determination of personal status. They should examine the fundamental differences
between the domicile of origin and the domicile of choice and refer to the capacity
of the domicile of origin to revive.
Law cases, reports and other references the examiners would expect you to use
Bell v Kennedy (1868), IRC v Bullock (1976), Re O’ Keefe (1940), Ramsey v
Liverpool Royal Infirmary (1930), Corbet v Fagan (1946) and Re Furse (1980).
Common errors
Common errors were the failure to use authority in answers, ere description of the
different variations of domicile without critical analysis and inadequate or no
reference to the capacity of domicile of origin to revive.
A good answer to this question would…
provide an account of the development of the concepts of domicile of origin and
choice as connecting factors and put forward a convincing argument in favour of
domicile of origin by providing examples and utilising the appropriate case law.
Poor answers to this question…
recited all knowledge about the area of law without focus with superficial or non-
existent comparison of the relevant concepts and insufficient reference to case law.

5
Question 5
Ravi is a reputed dealer in fine silk, precious stones and antique silver
jewellery from the Indian sub-continent. He operates from London, England
where he has his registered business. Ravi sold some of his finest silk and
antique silver jewellery from the Moghul period (17th/18th century India) to
Charlotte, a high-profile Canadian socialite and anti-war activist, for her
upcoming appearance at a charity ball hosted in Geneva, Switzerland, in
support of Ukrainian war relief. As per agreed terms, the finest silk and
antique silver jewellery were to be delivered to Charlotte’s mansion in
Toronto and the payment was to be made into Ravi’s bank account in London
within three weeks of the delivery. Charlotte is happy with her purchase and
instructs her manager to make the payment.
Nevertheless, her secretary informs her that a couple of reliable experts have
cast doubts about the authenticity of the antique silver jewellery, and one has
even suggested they are from the late 20th century and not from the Moghul
era. Charlotte has now refused to pay as she does not want to be seen
wearing fake jewellery at the charity ball. Charlotte, on her way to Geneva,
has a stopover in Southampton, England to spend the weekend with her
grand-aunt and uncle. Ravi is informed about Charlotte’s visit in advance and
has managed to serve her with a claim form through his lawyers, demanding
full payment for the fine silk and antique silver jewellery, and that if payment
were not made a summary judgment will be sought.
Charlotte is seeking your advice. Can Charlotte challenge the jurisdiction of
the English court and seek a stay of the proceedings? Would your advice be
different if the sale contract had an arbitration clause referring all disputes to
arbitration in Toronto?
General remarks
This is a question about the mere presence rule. (Maharanee of Baroda v
Wildenstein (1972); Colt Industries Inc v Sarlie (No 2) (The Atlantic Star (1974). It is
to be noted that the Charlotte (defendant) had not been tricked into visiting England,
as she had come to visit her grand-uncle and aunt en route to Geneva, Switzerland
– the case of Watkins v North American Land and Timber Co Ltd (1904) 20 TLR
534 will not apply. It is unclear if the contract was made in London, England. Will it
be possible for Charlotte to seek a stay on grounds of forum non conveniens, on the
basis that Toronto will be a more appropriate forum, as the jewellery were delivered
there? Regarding the second part, in the assumption that an arbitration clause
referring disputes to Toronto is present in the contract, Ravi, by initiating an action
in England will be in breach. This brings into focus the national rules that will apply.
Law cases, reports and other references the examiners would expect you to use
Maharanee of Baroda v Wildenstein (1972), Colt v Sarlie (1966), Spiliada Maritime
Corp v Cansulex Ltd (1986).
Common errors
Inadequate reliance on case law in the form of simply mentioning the name of some
of the cases with limited or no discussion of the facts of the case and the decision of
the court were common errors.
A good answer to this question would…
demonstrate an understanding of mere presence rule. It would discuss the potential
problems that may arise because of its application.
Poor answers to this question…
were descriptive with a distinct absence of a critical approach in relation to the issue
at hand.

6
 Examiners’ reports 2023

Student extract
This question deals with the issue of jurisdiction, in particular to the common
law jurisdiction. It has to be seen whether the English court could have
jurisdiction over this case or charlotte would be able to prove that there is
another appropriate forum so the English court would stay its proceedings.
Jurisdiction is the availability of the court and this is about which courts would
have the jurisdiction to hear the case. in order to determine jurisdiction of a
case, there are two ways to it. Firstly, the common law jurisdiction, it will
determine the jurisdiction if the defendant is from non-member state. And
secondly, if the defendant is from a member state, then brussels regulation
will determine jurisdiction.
In the given scenario, the defendant is from a non-member state as stated in
the facts that charlotte was a high-profile Canadian socialite and anti-war
activist. therefore, jurisdiction will be determined according to common law.
there are certain rules that govern common law jurisdiction. first it has to be
seen whether the defendant was present in UK or not. the English will have
jurisdiction if the defendant will be present in UK at the time of notice serving.
in the case of Maharanne [sic] of Baroda v Wildenstein 1972, it was held that
English court would have jurisdiction even if he was temporary present in the
UK at the time of notice serving.
Comments on extract
This is an example of an answer that shows that the student has a good grasp of
the legal issues relating to the scenario and deals with them in a satisfactory
manner but could perhaps have done a better job in terms of the presentation,
language and structure. The answer begins with a factually correct statement in
respect of the jurisdiction or otherwise of the English court. It then proceeds to
identify the applicable law and refer to the seminal case in respect of the mere
presence rule (Maharanee of Baroda v Wildenstein). This sets the appropriate tone
for the remainder of the answer and demonstrates the familiarity of the student with
the relevant legal framework. This then is a satisfactory answer to the question, as
there is enough evidence here to indicate that the student is familiar with the
relevant cognitive area.
Question 6
Mrs Robinson, a millionaire, is domiciled in England and has three daughters,
who are all married. All their marriages have been solemnised in jurisdictions
other than England. All three daughters are in their twenties, and all have
domiciles of origin in England.
Susan, the eldest daughter, is working in Brazil on a two-year fixed term
contract. She met Natalia (from Columbia) while on a week-long surfing
holiday in Rio de Janeiro, Brazil. After two months of dating, they got married
in Rio de Janeiro. Judith, the second born, was in Bangladesh volunteering
for a children’s charity for three months when she met Zaheer who was a
volunteer at the local charity. Judith and Zaheer married according to local
customs in Dhaka, Bangladesh before her visa expired. Their marriage is
polygamous as Zaheer was already married to another woman. Susan and
Judith’s marriages are valid in Brazil and Bangladesh, respectively.
Christina, the third daughter, was backpacking in Sri Lanka when she met
Matthew (from Australia), a keen surfer. They married in Kandy, Sri Lanka
according to Buddhist rites before he left for Australia. Unbeknownst to
Christina, Matthew was going through a divorce and was effectively married
on the date of his marriage to Christina in Sri Lanka. Upon returning to

7
London, Christina has come to know about Matthew’s first marriage and is
heartbroken and feels cheated.
Mrs Robinson seeks your advice on the statuses of her daughters’ marriages
under the law of England and Wales.
General remarks
The above scenario raises the question of validity of the marriages of Mrs
Robinson’s three daughters. While all three are domiciled in England, the
circumstances surrounding the respective marriages gives raise to questions of
validity under English law. The discussion should focus on the instances and
circumstances where an English court would decline to recognise the three
marriages.
Law cases, reports and other references the examiners would expect you to use
Ogden v Ogden (1908), Apt v Apt (1948), Taczanowska v Taczonowski (1957).
Common errors
Limited or no reference to the appropriate authority, descriptive approach without
elements of critical discussion and confusion about the applicable law were common
errors.
A good answer to this question would…
demonstrate a clear understanding of the concepts of formal and essential validity
of a marriage. It would determine that formal validity concerns issues such as the
form of the ceremony, registration of the marriage and parental consent, whereas
essential validity has to do with issues like affinity, lack of age and/or consent. It
would provide an account of the relevant case law.
Poor answers to this question…
did not demonstrate an understanding of the difference between formal and
essential validity. There was no reference to the relevant case law, or the cases
were mentioned by name without any critical discussion about their impact on the
issues at hand.