The Common Law Jurisprudence of the Conflict of Laws (Bloomsbury) has just been published to which 4 New Square Chambers‘ Ian McDonald has contributed a chapter.
Each chapter deals with a leading common law case in private international law, ranging from the 18th to the 21st century. The focus of the book is on the development of common law conflict of laws reasoning (including how the reasoning of courts in various common law jurisdictions has been influenced by, and has influenced, that of courts in other common law jurisdictions).
Ian’s chapter concerns Bonython v Commonwealth of Australia [1951] AC 201, a judgment of the Judicial Committee of the Privy Council (JCPC) (on appeal from the High Court of Australia), which touches upon the “proper law” of a contract. In Bonython, the JCPC held that, in the absence of a choice of law by the parties, the “proper law” of a contract is that with which the contract has its “closest and most real connection”. Whilst this “proper law” rule in fact dates back to common law conflict of laws writings and decisions from the 19th century, the JCPC’s judgment was nonetheless transformative in that it instigated a welcome transition from the artificial “presumed intention” test that went before it to the more satisfactory, and objective, “closest and most real connection” enquiry. However, the rule has since been relegated to the sidelines, in this jurisdiction, by the Rome I Regulation (notwithstanding ‘Brexit’); and a similar demotion may yet come in other common law countries (including Australia itself).
The other cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile and foreign immovable property are just some of the topics that this edited collection examines. The “unusual factual situations” of some 18th and 19th century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.
Drawing on a diverse team of contributors, the book showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.
If you would like further details or wish to purchase the book, please click here.
