Choice Of Law For Equitable Doctrines

by Yeo, T. M.; Gummow, W. M. C.

• ISBN13: 9780199274925
• ISBN10: 0199274924
• Format: Hardcover
• Copyright: 2004-11-18
• Publisher: Oxford University Press

Summary

This book deals with the legal questions relating to the applicable law that arise in cross-border litigation when litigants invoke the principles of English equity or analogous doctrines from other jurisdictions. It analyzes in detail both whether the forum's equitable doctrines should necessarily apply (concluding not), and then the various different ways in which equitable doctrines can be characterised.

Author Biography

TM Yeo is Associate Professor in the Faculty of Law, National University of Singapore.

Table of Contents

Table of Cases	xxvii
Table of Conventions, Statutes, and Statutory Instruments	lv
Table of Abbreviations	lxiii
Introduction	1	(15)
I. Conflict of Laws: Choice of Law
II. Equity in Domestic Law
III. Choice of Law: Equitable Doctrines
IV. The Problem of Equitable Doctrines in Choice of Law
V. The Organization of this Book
VI. A Diagrammatic View
Chapter 1 RELEVANCE OF CHOICE OF LAW ANALYSIS FOR EQUITABLE DOCTRINES	16	(36)
I. Introduction
II. Jurisdiction in Equity Serving as Choice of Law
1. From Jurisdiction to Applicable Law
2. Relationship between Jurisdiction and Choice of Law
3. Analysis and Conclusion
III. The Nature of Equitable Discourse
1. The Techniques of Equity
2. The Moral Content of Equity
3. Conclusion
IV. Exceptions to Foreign Law
1. Public Policy and Mandatory Rules
2. Formative Decisions
V. Conclusion
Chapter 2 RELATIONSHIP BETWEEN EQUITABLE DOCTRINES AND CHOICE OF LAW	52	(18)
I. Introduction
II. Three Views of the Relationship between Equity and Choice of Law
III. Analysis of the Models
1. Modell
2. Model	l3
3. The Case for Model 1
IV. Conclusion
Chapter 3 CHARACTERIZATION	70	(19)
I. Introduction
II. Approach
III. The Subject-Matter
IV. The Structure of the Process of Characterization
1. Stages of Characterization
2. The Pervasiveness of Equitable Doctrines
3. Existing Categories in Choice of Law
V. General Problems of Characterization
1. Differences in Characterizations
2. Multiple Characterizations: Concurrence and Hybrids
3. Multiple Claims within a Single Category
VI. Renvoi and the Incidental Question
VII. Conclusion
Chapter 4 SUBSTANCE AND PROCEDURE	89	(52)
I. Introduction
II. Rationale
III. Rights and Remedies
IV. Relationship between Equitable Jurisdiction and Remedy
V. Conditions of Relief
1. Doing Equity while Seeking Equity
2. 'Clean Hands'
VI. Substance and Procedure in Claims Invoking Equitable Remedies
1. Specific Performance
2. Injunctions
3. Other Equitable Relief
VII. Substance and Procedure in Relation to Other Equitable Doctrines
1. Constructive Trusts
2. Contribution and Subrogation
3. Presumptions
4. Limitation Periods
5. Tracing
6. Estoppel
7. Set-off
8. Release
VIII. Requirements for Writing
IX. Conclusion
Chapter 5 PROPERTY AND OBLIGATION	141	(32)
I. Introduction
II. Property and Obligation in Choice of Law
III. Personal and Proprietary Equitable Rights in the Conflict of Laws
1. Claims Asserting Personal Rights
2. Claims Asserting Property Rights
3. Tracing
IV. The Relationship between Obligations and Property Issues
1. Concurrence
2. Gap in Choice of Law
3. Personal Claims Dependent on Property Rights
4. The Meaning and Scope of the Law of the Situs
5. Property Claims Dependent on Breach of an Obligation
6. Where the Property is Subsequently Moved
V. Summary and Conclusion
Chapter 6 PROPERTY	173	(32)
I. Introduction
II. Inter Vivos Property Transfers
1. Transfer of Property Rights
2. Assignment of Intangibles
3. Priorities of Title
III. Trusts
1. Express Trusts
2. The Hague Trusts Convention
IV. Succession
1. Beneficial Succession
2. Formalities
V. Matrimonial and Quasi-Matrimonial Property
VI. Conclusion
Chapter 7 CONTRACTS AND AGREEMENTS	205	(60)
I. Introduction
II. Meaning of 'Contract' in Choice of Law
1. Common Law
2. Rome Convention
3. Meaning and Scope of Contractual Characterization
III. Choice of Law in Agreements Enforced in Equity
IV. Content of Duty
1. Fiduciary Duties
2. Duties of Confidence
V. Essential Validity: Avoidance, Rescission, and Defects in Formation
1. Characterization as Contract
2. Protective Policies
3. Overlap with Wrongs
VI. Formal Validity
VII. Specific Enforceability
VIII. Modification
1. Penalties and Forfeitures
2. Estoppel
3. Rectification and Reformation
IX Assignment
X. Borderline Cases: Promissory Estoppel and Related Doctrines
XI. The Proposed Rome II Regulation
XII. Conclusion
Chapter 8 TORTS AND WRONGS	265	(42)
I. Introduction
II. Meaning of 'Torts' for the Purposes of Choice of Law
1. Introduction
2. The Common Law Position
3. The Statutory Regime for Choice of Law in Tort
4. The Proposed Rome II Regulation
5. Conduct in the Forum and Public Policy
III. Choice of Law for Civil Wrongs
1. The Scope of 'Wrongs' for Choice of Law
IV. Characterization for Specific Wrongs Recognized in Equity
1. Fiduciary and Other Equitable Duties
2. Breach of Confidence
3. Breach of Express Trust
4. Interference with Property or Protected Relationships
5. Passing Off
6. Wrongful Pursuit of Litigation
V. Conceptual Difficulties in Ascertaining Connecting Factors
VI. Conclusion
Chapter 9 RESTITUTION AND UNJUST ENRICHMENT	307	(24)
I. Introduction
II. Meaning and Scope of 'Restitution' in Choice of Law
III. Unjust Enrichment Claims Relating to Property
IV. Unjust Enrichment Claims Relating to a Contract
V. Unjust Enrichment Claims Relating to Civil Wrongs
VI. Unjust Enrichment in Other Contexts
1. Transfer of Property
2. Receipt of Property
3. Contribution and Subrogation
VII. The Proposed Rome II Regulation
VIII. Conclusion
Chapter 10 CONCLUSION-EQUITY IN DOMESTIC LAW AND CHOICE OF LAW	331	(14)
I. The First Theme: Is there Choice of Law in Equity?
1. Equity's Supposed Immunity from Choice of Law
2. Choice of Law for Equitable Doctrines
II. The Second Theme: Relationship between Equitable Principles and Choice of Law Rules of the Forum
1. Three Models
2. Choosing the Best Model
III. The Third Theme: Characterizing Equitable Doctrines
1. Scope
2. Methodology
Bibliography	345	(10)
Index	355