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They are limited to actions carried out in official capacity, if actions are carried out in a private capacity the courts will have jurisdiction. Restraints the forum court places on itself o International cases — by a stay or dismissal of proceedings o Interstate cases — by a transfer or stay of proceedings 2. There were many criticisms about the approach taken by the HCA. This approach made it difficult to argue for the defendant that an Australian court is an inappropriate court — plaintiff friendly approach forum shopping?

If there is more than one potential jurisdiction and D challenges, should consider which jurisdiction is the most appropriate jurisdiction — if there is another forum which is clearly more appropriate with jurisdiction, will stay and may even dismiss proceedings. This test makes the court engage in a comparative exercise. This was because the complexity of the claims was such that, without the assistance that was available to the plaintiffs in England, the claims would have not been heard at all in South Africa.

In proceedings in tort, English courts have accepted the place in which the tort is committed is prima facie the natural forum for the determination of the dispute. Thus a plea of forum non conveniens is harder to sustain when the plaintiff alleges a tort has been committed in the forum. It is a very insular approach that is out of kilter with other common law jurisdictions and ought to change. The only way a D will succeed is if they can show the court is clearly inappropriate.

This has been said to be exorbitant jurisdiction, allowing Aus courts to adjudicate on matters that other courts should adjudicate. It is a self-focussed approach. The only circumstance in which the Voth test should provide a different outcome to the Spiliada test was where the factors indicated that there was a more appropriate forum for the determination of proceedings but where the court in Australia was not a clearly inappropriate forum.

Australian courts quite readily apply foreign bodies of law — exorbitant jurisdiction, but ready access to foreign lex causae. Usually D will enter a conditional appearance and then bears the onus of showing the court is a clearly inappropriate forum. In courts where you need leave to proceed and serve against a foreign D, it is up to P to show that the court is not a clearly inappropriate forum. PROCEDURE The doctrine of forum non conveniens can be raised where, in cases of service of a defendant outside Australia, the plaintiff seeks leave to serve or to proceed, or where the defendant, once served, applies to have service set aside: cf Henwood v Levesque Beaubien Geoffrion Inc.

Forum non conveniens can also be raised in proceedings where the court has jurisdiction as of right, either at common law or under the SEPA. This sets out the principles by which the discretion to stay or dismiss proceedings is exercised, and therefore the precise manner in which other cases have been decided is rarely relevant.

Thus the overriding consideration remains whether the forum court is a clearly inappropriate forum for the determination of the proceedings: Sentry Corporation v Peat Marwick. Traditionally, the existence of identical or related proceedings in the foreign place has not made courts more inclined to grant a stay of proceedings, especially where the defendant in the forum is the plaintiff in the foreign proceedings: Cohen v Rothfield.

Lis alibi pendens is not in itself a ground to find forum non conveniens. In this case, there were divorce proceedings being litigated in Monaco. One party came to Australia and commenced divorce proceedings in Australia. The proceedings were stayed on the basis of forum non conveniens and was granted on the basis of lis alibi pendens.

To the extent that it signals a scenario that is prima facie vexatious and oppressive and in which proceedings are likely to be stayed or dismissed, Henry shifts from the general approach to forum non conveniens in Australia. It also suggests that a comparison is to be made between the circumstances of the forum court and those of the foreign court, which is discouraged under the principles of Voth.

Non-exclusive jurisdiction clause o Parties agree to submit to the jurisdiction of a place but there is no further agreement precluding either party from suing elsewhere o Persuasive 2. A plea of forum non conveniens will be harder to sustain if the exclusive jurisdiction clause places the determination of disputes in the forum: Bowport Ltd v Alloy Yachts International. Traditionally, the classification of a forum clause as an exclusive jurisdiction clause requiring disputes to be dealt with in a foreign place has required the forum court to grant a stay or dismissal of proceedings unless the most exceptional circumstances demanded otherwise.

Equally, litigants in an Australian forum should be conscious that, if the court allows them to proceed in the forum in technical breach of an exclusive jurisdiction clause, they might still be liable under the law of a foreign place — especially the agreed place for dealing with disputes — for damages for breach of contract.

Voth is not applied when dealing with interstate actions — more of a Spiliada approach. The restraining court does not issue an injunction against the other court, it issues an injunction directly against the person who is the plaintiff in the proceeding in the other court, so long as that person is within the jurisdiction of the restraining court.

It is contempt of the restraining court for that person to continue the litigation, and normal processes of contempt like imprisonment or sequestration can follow if the proceeding is not discontinued.

The indirect result of an anti-suit injunction is that it strikes at the jurisdiction of the other court. The restraining court resolves the question about where to litigate in its own favour, but this makes the anti-suit injunction an extraordinary remedy that should only be granted after the most cautious consideration of the issues. Where there are proceedings in the forum and the foreign place, the majority in CSR indicated that a number of steps be taken before an anti-suit injunction could be considered: 1.

The forum court considers whether it should stay or dismiss the proceedings before itself: Voth 2. If the forum court decides not to stay or dismiss proceedings, it must decide whether a. To require the plaintiff in the forum to apply to the foreign court for a stay or dismissal of the foreign proceedings b.

To grant the anti-suit injunction against the defendant in the forum , restraining the foreign proceedings The procedure shows the relationship between the doctrine of forum non conveniens and the granting of anti- suit injunctions.

The central issue is where the matter in dispute between the parties is to be decided — in the forum or foreign court. The grounds on which an anti-suit injunction can be granted spring from two sources: 1.

The court has an inherent power to protect the integrity of its own process, and an injunction can be granted in any circumstances where that is required to provide that protection 2.

The rationale is that, so far as comity between courts is concerned, it is better that a foreign court make a decision about the suitability of proceedings before it than that the local court impose its will on the foreign court. However, in CSR, the majority pointed out that even in Amchem this was not a general rule. Nor could it be, when the different circumstances in which an interlocutory injunction could be granted were taken into account.

The injunction will ordinarily issue to restrain the breach of contract unless the defendant can show strong reasons why it should not: XL Insurance Ltd v Owens Corning. Parties that continue Australian litigation in breach of a foreign anti-suit injunction will not be exposed to the contempt processes of the relevant Australia forum but may be under the law of the foreign place.

The result in a choice of law case does not only depend on the choice of law rule relevant to the case. It is often just as important to identify the point at which a court must decide whether there is a need to invoke a choice of law rule, and how that rule is to be invoked.

Thus, the choice of law rule is a jurisdiction-selecting rule. In its simplest form, a choice of law rule will therefore specify a juridical category such as the formal validity of marriage or tort and its associated connecting factor such as the place of solemnization or the place where the tort occurred that effectively selects a legal system. Identification of a conflict of laws o Identification of the possibility that a foreign body of law might apply 2.

The classification of substantive or procedural law o Procedural laws are lex fori o Substantive laws may be foreign laws 4. Identification of choice of law rule o What is the Australian rule that tells you whether to accept the foreign law 5. That is, there needs to be more than one legal system and a different outcome from their application.

Herein lies the circularity of this method. Local choice of law rules must be used to identify these possibly relevant legal systems. The court must at this point identify which legal system would be relevant on application of any choice of law rule currently obtaining in the forum.

This process merely eliminates the need to consider laws that are on any view irrelevant. This indicates how, if the case were treated as a purely domestic proceeding in each of the possibly relevant places, the laws of those places would require the proceeding to be determined. This is simply a step to eliminate those legal systems which clearly have no possible relevance.

Following this, the internal rules of each possible legal system need to be considered ie choice of law rule ignored for the present. Under Australian law, Rupert and Flavia would have a valid marriage. Under Ruritanian law, the marriage is not valid and a court is unlikely to even consider an application, as no application for annulment or divorce.

If Hentzau included as a possibility, it is likely to be invalid. Where a conflict exists, the need arises to apply a choice of law rule. However, choice of law rules differ according to the classification characterisation or qualification of the matter under dispute.

The actual classification may take place late in the proceedings when it becomes evident there is a PIL issue. However, classification of property as movable or immovable is usually classified according to the law of situs. This is done in accordance with the law of the place where the property is situate. If the subject matter is procedural, then the law of the forum applies exclusively.

That is rights were determined by the substantive law and remedies by the procedure of the court. First, litigants who resort to a court to obtain relief must take the court as they find it. The conclusion was reached that the application of limitation periods should continue to be governed by the lex loci delicti and, secondly, that: …all questions about the kinds of damage, or amounts of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti We would reserve for further consideration, as the occasion arises, whether that latter proposition should be applied in cases of foreign tort.

The court will usually have identified the result of the application of a foreign law as the law of the cause, so its application is simply then endorsed. But what happens when, applying the foreign law as the lex causae, we include the foreign choice of law rules, which then refers the choice of law question back to the forum or even to another state? Example — Mortensen page Before moving onto classification, the court recognises that the substantive law of the countries is different.

It is unlikely a choice of law rule would lead to Hentzau. In classifying the dispute, under common law formal and essential validity is required.

If formally valid, Australian law applies marriage in Australia. Ruritanian law about what you can bring before the court — classify as procedural or substantial. However, the law about sister-in-laws is substantive. If choice of law method has been followed closely, the court should already know how the law of the cause will determine the proceeding as, when identifying the existence of a conflict of laws, the court had to consider the likely result on application of the internal rules of each legal system.

Identification of a conflict of laws 2. Classification of the subject matter 3. The classification of substantive or procedural law 4. Identification of choice of law rule 5. In multi-state cases, it refers to a process by which different issues in the one case might be divided, segregated and determined in accordance with the laws of different places.

There are two or more issues in dispute, each of which gives rise to a conflict of laws. The result is one which probably not that of each legal system alone. It is marked in contract. If normal choice of law rules are applied, they would be determined in accordance with different choice of law rules. The incidental question method becomes relevant where the two issues, though referable to different choice of law rules, are related, in the sense that one must be determined before the other can be as well — a main and a preliminary issue.

The incidental question makes the preliminary issue incidental to the main issue even in circumstances where they could theoretically be dealt with separately. The problem of renvoi therefore arises when the court is applying the law of the cause as initially selected , the question being which part of the law of the cause is first to be applied.

This may lead to deciding the matter differently to the way another country might deal with a matter. If the matter were actually litigated in Belgium, a Belgian court, if it ignored the renvoi, would apply English law.

The two entities would have different outcomes — this encourages forum shopping. This theory is the same as ignoring the renvoi if it arises. This is actually simply recognising the conflict of conflict of law rules. The effect is the same as ignoring the renvoi. However there is a slightly different effect in that the forum is applying its own rules in default. If the law of the foreign forum remits the question to the law of the forum, the forum court accepts that remission and applies the law of the forum as the law of the cause.

This is the result the law of the foreign forum intended. Therefore, would go back to English laws, but only the internal rules. The result achieved in a sense is the same that would have occurred had the matter been decided in the Belgian court, so there is some elimination of forum shopping.

For this method there is only one go at the renvoi eg if a choice of law rule says to apply a foreign body of rules, it will not apply internal rules to the matter. The result is the same as ignoring the renvoi, with the forum difference that the foreign choice of law rule is recognised, though not applied.

If the law of the foreign forum remits the question to the law of the forum, the court in the forum rejects that remission and applies the law of the foreign forum as the law of the cause. It adopts whatever solution to renvoi the courts in the foreign forum had adopted. This approach emphasises consistency in outcome with the foreign court and therefore discourages forum shopping.

It adopts the result in the case the foreign forum would have reached, having applied its own choice of law rule, and its particular solution to the problem of renvoi. When there is a choice of rule that sends a forum to another jurisdiction, should pretend to be a judge in that other jurisdiction and do exactly what that other jurisdiction would do.

If the foreign court ignores the renvoi, it — the foreign court — will apply the internal law of the forum, F. The forum court will apply the law of F. If the foreign court accepts the renvoi, it — the foreign court will apply its own internal law, X. The forum court will apply the law of X. If the foreign court rejects the renvoi, it — the foreign court — will apply the internal law of the forum, F. There are a number of commentators who suggest this should not be done.

A significant body of case law does apply double renvoi theory, but with regard to succession to property. It assume that the foreign country does have a solution to the problem of renvoi: Re Duke of Wellington [] Ch It does not always apply the foreign solution to renvoi.

It is sometimes the foreign solution as adjusted by the law of the forum: Simmons v Simmons. There may be significant difficulties with the evidence on the relevant foreign law so that, in an objective sense, it is also difficult to have any confidence that the legal scenario accepted by the court as representing the foreign laws has any close symmetry to the true position of the foreign law.

Therefore, it must be pleaded and proved by evidence. The onus of proof lies with the party who claims that the law of the cause differs from the law of the forum. It is not the foreign law that is actually before the court, but the foreign law as presented and read by expert witnesses, and as adjusted by the procedural law of the forum, that is used by the forum court.

The fact that it is open for the parties to either plead and prove, or ignore the potential application of, foreign laws makes the choice of law method optional. It is only invoked if one of the litigants wants it. Eg choice of law rule for intestate succession to moveables is the law of the place where the deceased was domiciled at time of death.

Some choice of law rules are not dependant on a personal connecting factor. Eg Choice of law rule for intestate succession to immovables is law of the place where the immovable is situated. Also, the choice of law for tort is the place where the tort occurred. Lex domicilii — Common law — personal law territorialism Evolved from Only Roman law to connecting become factor was connecting presence factor within territory Domicile is of a Roman law origin.

In Australia there is a combination of domicile and territorialism. In Australia, there is no difference between nationality and citizenship. When a foreign state uses nationality, it is quite often the case they mean something closer to citizenship. Domicile at common law has to some extent been amended by legislation — Domicile Act Cth , and Domicile Act Qld. The Domicile Acts commenced on 1 July and are entirely prospective. If domicile needs to be determined prior to , common law is applied.

Foundlings take domicile where found. If a marriage is annulled, at common law a child became illegitimate. Under s 91 Marriage Act Cth a child is legitimate if either parent had reason to believe in validity. The relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other. For any point after , cannot reacquire your domicile of origin — not a revival, simply a domicile of choice.

For minors, domicile follows that of their parents until majority. Abolished by s 6 Federal Act; s 5 State Act. For the mentally ill, domicile freezes as the time of incapacity arose. Presence or factum 2. If there is a dispute, you have to adduce evidence of what your intention is. Intention of leaving domicile of origin in itself is insufficient, as is intention to acquire a new domicile in the future.

It must be freely chosen ie not a duty — foreign posting, relief from illness, escape creditors. However, this can be overridden by other factors — it is just that this in itself will not show a new domicile. An intention to reside permanently or indefinitely in the new country or State is required: s 10 Federal Act; s 9 State Act.

The Acts thus introduced another element — indefinitely instead of permanency. There is no limit to factors which could go to determining animus. Australian authorities suggest illegality is a bar to domicile of choice. The fact you can show presence and intention to reside in a place means people like refugees and illegal immigrants can acquire a domicile of choice.

Foreign citizen may be important if foreign citizen has connecting factors with some body of law we have to apply eg in Oppenheimer when the laws of Nazi Germany said Jews cannot be citizens, they refused to recognise that body of law. The general rule is that Australian law recognises that a person has a foreign citizenship or has lost such citizenship when the relevant foreign law recognises that the person is a citizen: Sykes v Cleary No 2.

The exception is that Australian law does not recognise the foreign citizenship when the foreign lwa does — the person has taken reasonable steps to discharge the foreign citizenship: Sykes v Cleary No 2. It is probably ordinary residence that indicates the most permanent attachment. Some continual presence there is necessary — common sense approach to what residence is.

This concept is not prevalent in Australian law, and it is rather difficult for the legislature and those responsible for implementing these conventions to understand what is meant by habitual residence — not clear how this distinguishes from ordinary residence.

More is required than for domicile — continual presence is not required for domicile. Statute itself can apply a choice of law rule eg Marriage Act Cth 2.

Where the statute is part of the potentially applicable law of the cause lex causae In the first instance, the statute impedes on the choice of law process eg common law. For the second point, problems arise when statutes have a localizing element — limits the application of the statute to a particular area.

Since the statute will take priority over the common law when they lead to different outcomes, a statute may effect the common law choice of law rules. The statute itself indicates that it must be applied in a certain case ie mandatory rules 2.

The problem is that it is unusual for those drafting legislation to consider defining the intended territorial operation of the statute explicitly. A localising rule means the statute is designed to only operate within the jurisdiction and is not outside the jurisdiction. When these situations occur, the court is required to localize the statute — that is, determine the territorial operation of the statute. This is no more than the choice of law method — determining the applicable law to the cause and whether it includes a statute.

What if the foreign statute contains its own localising rule? Classification of substantive or procedural law 4. Identification of the choice of law rule 5. Application of the law of the cause First step is to identify that there are these jurisdictions that are important.

The only way you can tell this is if you have some knowledge of the choice of law rules you have to apply — this is why the process is somewhat circular.

Merely identifying those jurisdictions is one thing — what we are really looking for is a conflict of laws — those jurisdictions provide different outcomes. When that occurs, we have a conflict of laws. In a sense if they all do the same thing and apply the lex fori, you are ignoring your choice of law rules. Once you have identified there is a conflict of laws or likely that there is a conflict of laws, the next step is to classify the matter.

Classification — trying to narrow the issue down to the point where, associated with that classification is a choice of law rule. Whether you have a rule that is at a sufficient degree of abstraction there is a choice of law rule attached to that. That classification process — sometimes there are alternatives to that level of abstraction.

Then have to narrow the issue down to what is actually in dispute between the parties — and that is what you classify and from that classification you find the choice of law rule.

Depecage is a contractual issue — situation where having classified the matter as contract you find that there are two different choice of law rules associated with the different classifications but continue with both of those eg formal and essential validity of a marriage. Then you have substance and procedure — issues of procedure fall outside the choice of law rules. At this stage you can eliminate some of the jurisdictions. This leads you to a foreign body of law.

Once you have removed those statues with a localising effect, have identified the law of the cause. Now must address the questions of the choice of law rules of other jurisdictions and whether need to consider the problem that arises from conflict of conflict of law rules. This is the foundation upon which recognition and enforcement is based. There is a close relationship between concepts. Presence in the jurisdiction 2. Submission to the jurisdiction The exercise of jurisdiction does not mean that the court can impose liability, which depends on it being able to exercise coercive power.

Australia views the judgment as an obligation — one party is to pay the other party a sum of money. If it is merely an obligation to pay and you are requiring that to be paid in Australia, all that the Australian court is doing is entertaining an action to enforce an obligation. The foreign judgment is evidence of that obligation. However, the foreign judgment is not enforceable because of the foreign judgment — strictly only enforceable when adjudged to be enforceable by a court in the forum.

This means that the court in the forum must have jurisdiction over the judgment debtor at common law, under SEPA or by its rules of court. Jurisdiction will have to be found either by common law or statute. International jurisdiction is assessed by the laws of the forum.

It is assumed the foreign court had jurisdiction under its rules. At common law, therefore mirrors to a large extent common law jurisdiction of forum. Other wider possibilities have arisen. Conduct inconsistent with a protest against the jurisdiction of the foreign court This is a less than perfect mirror of jurisdiction.

Note: if the parties agree to a choice of forum clause and judgment is entered against the debtor in that place, at common law, the foreign court will be regarded as having exercised property international jurisdiction even if B refused to actually appear before the foreign court.

A choice of law clause is insufficient to establish international jurisdiction. In any proceedings brought in Australia to enforce a foreign judgment, the foreign court is not taken to have had jurisdiction to give the judgment merely because the judgment debtor entered an appearance.

Nor is the foreign court taken to have had international jurisdiction merely because the judgment debtor participated in the foreign proceedings for the purpose of contesting the jurisdiction of the court, or for inviting the court in its discretion not to exercise jurisdiction. NB applies to common law enforcement action. If there is an appeal, can stay the enforcement of the original action.

Except if it can be set aside by appearance. This includes an order in specie such as specific performance or an injunction. The defendant must be the same defendant who was in the foreign court. Intrinsic fraud is evident during the litigation eg the fraudulent issues are raised at court. Extrinsic evidence comes to light after the litigation. A court ought to accept that a judgment is a legitimate judgment, and should only question if matters come to light after that judgment eg perjury or falsification of documents or something not known to the courts that made that decision.

Otherwise, it may amount to re-litigation if intrinsic fraud is considered. It is a form of containment of misconduct, more oriented towards animal instinct. The notion of justice that we have as nations comes from a long republican and, later, democratic tradition, where systems can function in an acceptable manner.

The relevance of law lies, then, in the creation of laws for the regulation of conduct and coexistence. That is why we found it essential to add to our collection free books on law in PDF format, because we know that it is a complex universal science, but necessary in any nation.

By having our books in your personal library, you will have a solid foundation in this discipline and any of its aspects. Take your right to be trained in this science that has provided justice to so many and injustice to so many others.

Prepare yourself to impart the first one. Francisco de Quevedo y Villegas. Law, today, is no longer the domain of a few, its issues have been popularized and public opinion echoes the application of the law. If you are not a law student or lawyer, you can also access this collection of law books in PDF , to participate with your knowledge in public life.

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Whatever your case may be, we want you to keep in mind that you no longer have to be an expert or specialist to study any discipline. Books and information are now available to those who need them. Today, more than ever, the Rule of Law is exercised by majorities and, in part, this is because they are not ignorant of legal matters. And, of course, you can count on our books to accomplish that task. Law consists of a conglomerate of norms and principles that seek to regulate human relations within society, whose compliance must be ensured by the state.

Law is such a broad subject that it has been studied by philosophers in Law, as well as by jurists and theoreticians, who have contributed different points of view and endless information about it, in several books on Introduction to Law.

In order for you to know each and every one of the terms, concepts and definitions, as well as the different branches concerning Law, we present you a list of free books on Introduction to Law in PDF format so that you can download and share them. Civil law is known as the law that governs the private relationships that people establish between them. It is formed by the legal rules that regulate the patrimonial or personal relations between individuals natural persons or legal persons.

The purpose of civil law is to preserve the interests of the subject at the patrimonial and moral level. To understand the branch of civil law, it is necessary to know the notion of natural law, which is the grouping of principles, inspired by nature, of what is considered as just or unjust.

These rights inalienable and universal are concretized through positive law. If you want to deepen your knowledge of Civil Law, we invite you to visit our list of books on Civil Law in PDF format to learn more about this branch of law fundamental for life in society. Commercial law or mercantile law is a particular branch of private law, which aims to regulate and accompany the dynamics of exchange of goods and services, that is, the commercial acts contemplated in the law, as well as the legal implications arising therefrom.

In short, commercial law is in charge of structuring the current commercial organization and of establishing the conditions of the legal regulations related to entrepreneurs, which is the name given to all the subjects that develop activities related to commerce.

In addition to the above, it is also important that we recognize the indispensability of Commercial Law in our society, since it plays a fundamental role not only in economic development, but also in political and, of course, social development.

The origins of criminal law date back to primitive times and its concept has evolved throughout history going through marked stages in Roman Law , the Middle Ages and the evolution of the distinctive schools of those moments prior to its current conception, so that throughout history the human being has been reflecting on the definition of criminal law. It is possible to distinguish between objective criminal law ius poenale , which refers to the criminal legal norms themselves, and subjective criminal law ius puniendi , which contemplates the application of a sanction to those who actualize the hypotheses foreseen by objective criminal law.

Specialization in this area of knowledge can be complex, but also very exciting for those who decide to practice it.

That is why we invite you to review our selection of books on Criminal Law and enter this exciting world. International law defines the legal responsibilities of States in their relations with each other, and the treatment of individuals within state borders. Its competences cover a wide range of problems of international importance, including human rights, disarmament, international crime, refugees, migration, nationality problems, the treatment of prisoners, the use of force and the conduct of war.

The main objective of international law is to ensure that relations between States are harmonious, peaceful and collaborative.