CONFLICT OF LAWS

Lecturer: Busalile Jack Mwimali

SESSION 1

1.1. Introduction
Generally, conflict of laws is a set of procedural rules that determines which legal system and
which jurisdictions applies to a given dispute. The rules typically apply when a legal dispute
has a ‘foreign’ element such as a contract agreed to by parties located in different countries.

Conflict of laws is sometimes interchangeable referred to as private international law or

international private law. Whereas the term conflict of laws is primarily used in jurisdictions
of the Common Law legal tradition (England, Canada, and Australia, the United States,
Kenya etc), private international law is usually used in France, Italy, Greece, and in the
Spanish and Portuguese-speaking countries. In Germany (and German Speaking Countries
such as Austria, Leichtenstein and Switzerland) as well as in Russia and Scotland the word
international private law is used.

Within the federal systems (e.g. in the United States and Australia) where legal conflicts
among federal states require resolution, the term conflict of laws is preferred simply because
such cases do not involve an international issue. Hence, conflict of laws is a general term to
refer to disparities among laws, regardless of whether the relevant legal systems are
international or inter-state.

The term conflict of laws itself originates from situations where the ultimate outcome of a
legal dispute depended upon which law applied, and the manner in which the court resolve
the conflict between those laws. The term, however, can be misleading when it refers to
resolution of conflicts between competing systems rather than “conflict” itself.

The three branches of conflict of laws are:

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1.1.1. Jurisdiction

The question that arises in conflict of law cases is whether the forum court has the power to
resolve the dispute at hand.

1.1.2. Choice of law

If the first question as to the court’s jurisdiction is yes, the second issue is which is being
applied to resolve the dispute?

1.1.3. Enforcement Foreign judgments

The other question related to the ability of the courts to recognize and enforce a judgment
from an external forum within the jurisdiction of the adjudicating forum.

1.2. Justification
Why should the courts depart from the rules of the country’s law and apply those of another
system? The justifications for this include:

(i) To implement the reasonable and legitimate expectation of parties to the

transaction or an occurrence – E.g., if two Kenyans went and got married in
another country, say France in accordance with the rules prescribed by the French
law and not the formalities prescribed by the Kenyan laws, if Kenyan laws were to
be applied, then the Kenyan courts would have to treat the parties as unmarried
and their children as illegitimate;

(ii) To avoid grave injustices that might occur - It would be for instance possible
for the courts in Kenya to refuse to recognise or enforce a foreign judgement
determining the issue between the parties, but this would cause great inconvenience
and even injustice. E.g., if divorce was granted in a foreign country and after on one
of the parties remarried, he/she might be guilty of bigamy unless that foreign
judgement was recognised. Similarly, if a person sued and obtained a judgement in
a foreign country, he could find that the judgment debtor has surreptitiously
removed all his assets from that country to avoid execution of the judgement.

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(iii) As a Matter of Comity – at one time, the doctrine of comity was held to be a
sufficient basis for the conflict of laws. Comity here connotes courtesy or the need
for reciprocity or even the rule of international law as the accepted rule of mutual
conduct as between states and therefore more than mere courtesy.

Thus, s 13 Privileges and Immunities Act states that ‘Notwithstanding the

foregoing provisions of this Part, the Minister may decline to accord immunities
and privileges to, or may withdraw immunities and privileges from, nationals or
representatives of any state on the ground that the state is failing to accord
corresponding immunities and privileges to citizens or representatives of Kenya.’

Most common law states do not use comity as a justification for their actions but
rather as a basis for legal reforms on their laws. In Rahimtoola v. Nizam of
Hyderabad, Coleridge CJ certain rules of the Civil Procedure in England (r 60)
was enacted to bring English practice ‘into accordance with well-settled rules of
international law.’

In Laker Airways litigation, British Airways and British Caledonian Airways

obtained injunctions in English courts enjoining the liquidator of Laker Airways
form commencing anti-trust proceedings against them in the United States. The
United States Court enjoined other airways from taking similar steps in the English
courts to frustrate the anti-trust proceedings in the United States. In the final stage
of these contest, the House of Lords discharged the English injunction, as was held
by Lord Scarman the action was disguised/indirect interference with the process of
justice in foreign courts.

Thus, in Credit Suisse Fides Trust SA v. Cuoghi [1998] QBB 818, 827 (CA),
Millet LJ opined that in Mareva Injunction ‘it was becoming widely accepted that
comity between courts of different countries requires mutual respect for territorial
integrity of each other’s jurisdiction.’

(iv) To Meet Treaty Obligations – Sometimes, application of foreign laws by a

municipal court is required by public international law. E.g. Kenya may be bound
by a treaty that requires national courts to apply foreign law.

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 Note that under the 2010 Constitution, article 2(5) and (6) make international
law to be part of the municipal law of Kenya and bind the national courts to
enforce international laws.

1.3. History Conflict of Laws

The first instances of conflict of laws in the Western legal tradition can be traced to Greek
law. Ancient Greeks dealt straightforwardly with multistate problems, and did not create
choice-of-law rules. Leading solutions varied between the creation of courts for international
cases, or application of local law, on the grounds that it was equally available to citizens of all
states.

More significant developments can be traced to Roman law. Roman civil law (jus civile) being
inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases.
The officers of these specialized tribunals were known as the praetor peregrini. The Praetor
peregrini did not select a jurisdiction whose rules of law should apply. Instead, they "applied"
the "jus gentium." The jus gentium was a flexible and loosely-defined body of law based on
international norms. Thus the praetor peregrini essentially created new substantive law for each
case. Today, this is called a "substantive" solution to the choice-of-law issue.

The modern conflict of laws is generally considered to have begun in Northern Italy during
the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The
need to adjudicate issues involving commercial transactions between traders belonging to
different cities led to the development of the theory of statuta, whereby certain city laws
would be considered as statuta personalia "following" the person whereby it may act, and other
city laws would be considered as statuta realia, resulting in application of the law of the city
where, e.g., the res would be located (lex rei sitae).

Maritime law was also a great driver of international legal rules; providing for the
enforcement of contracts, the protection of shipwrecked sailors and property, and the
maintaining of harbours.

The modern field of conflicts emerged in the United States during the nineteenth century
with the publishing of Joseph Story's treatise on the conflict of laws in 1834. Story's work
had a great influence on the subsequent development of the field in England such as those

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written by A.V. Dicey. Much of the English law then became the basis for conflict of laws
for most Commonwealth countries. However, in the US, Story's work fell out of fashion in
the mid-twentieth century.

Traditional conflict of law rules were widely perceived as too rigid and unresponsive to the
needs of a highly mobile society undergoing the Second Industrial Revolution. They were
replaced with a number of approaches, of which the most important is the governmental
interests analysis pioneered by law professor Brainerd Currie in a landmark series of essays.
As a result of Currie's work, the rules for conflict of laws in the United States have diverged
significantly from the rules in use at the international level.

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 Session 2

2.1. Sources of Applicable Rules Conflict of Laws

2.1.1. Legislation

This is by far the most important source. For a long time both in England and Kenya,
Statute (e.g., the Wills Act 1861) were haphazardly and sporadically enacted to remedy some
glaring anomaly or injustice, or to facilitate reciprocal enforcement of judgements eg within
the commonwealth. Increasingly, they are enacted in order to enforce international
conventions or as a well though and considered reforms.

Legislation having effect on the Conflict of law system may be Statute with no indication of their
application space. It is a common law principle that statutes are not intended to apply beyond
the states’ territorial limits. E.g. it has been argued that a provision in law that ‘a marriage
between person either of whom is under the age of 16 years shall be void,’ cannot be literary
interpreted to mean any marriage in the world.

However, this presumption is easily rebutted. E.g. the principle did not prevent the Fatal
Accidents Act from applying to accidents in the High Seas on the East Coast of the US
between a Panamian Ship manned by Spanish crew and a Russian Trawler manned by
Russian crew some of whom were drowned in the Esso Malaysia case [1975] QB 198.

Other statute may provide a particular choice of law. e.g. Foreign Judgments (Reciprocal
Enforcement) Act cap 45 deals specifically with the enforcement of foreign judgements in
Kenya.

2.1.2. International Conventions

The treaties negotiated under the aegis of the Hague Conference on Private International
Law have formed an important basis of conflict of laws. E.g. Hague Convention on Conflict
of Laws relating to the form of testamentary disposition formed a basis of the English Wills
Act 1963, from which the Kenyan law on Succession subsequently borrowed.

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Under the 2010 Constitution, international treaties signed and ratified in Kenya automatically
become part of the national law of the country.

2.1.3. Decision of Courts

Give Examples

2.1.4. Opinio Juris

Jurists like Ulruich Huber (1636-1694) of Friesland; Joseph Story (1779-1845) of the US and
Friedrich Carl Von Savigny greatly influenced the development of the English conflict of law
system from which we largely borrowed.

2.2. The Stages in a Conflict Case

(a) The court must first decide whether it has jurisdiction and, if so, whether it is the
appropriate venue given the problem of forum shopping.

(b) The next step is the characterization of the cause of action into its component legal
categories which may sometimes involve an incidental question (also note the
distinction between procedural and substantive laws). Each legal category has one or
more choice of law rules to determine which of the competing laws should be
applied to each issue.

(c) Once the applicable law is decided, that law must be proved before the forum court
and applied to reach a judgment.

(d) The successful party must then enforce the judgment which will first involve the task
of securing cross-border recognition of the judgment.

In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to
be made on an ad hoc basis, with such choice of law rules as have been developed embedded
into each subject area of private law and tending to favour the application of the lex fori or
local law.

In states with a more mature system, the set of Conflict rules stands apart from the local
private civil law and adopts a more international point of view both in its terminology and
concepts. For example, in the European Union, all major jurisdictional matters are regulated
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under the Brussels Regime, e.g. the rule of Lis Alibi Pendens from Brussels 1 Regulation
applies in the Member States and its interpretation is controlled by the European Court of
Justice rather than by local courts. That and other elements of the Conflict rules are
produced supranationally and implemented by treaty or convention.

Because these rules are directly connected with aspects of sovereignty and the extraterritorial
application of laws in the courts of the signatory states, they take on a flavour of public
rather than private law because each state is compromising the usual expectations of their
own citizens that they will have access to their local courts, and that local laws will apply in
those local courts. Such aspects of public policy have direct constitutional significance
whether applied in the European context or in federated nations such as the United States,
Canada, and Australia where the courts have to contend not only with jurisdiction and law
conflicts between the constituent states or territories, but also as between state and federal
courts, and as between constituent states and relevant laws from other states outside the
federation.

2.3. Choice of law rules

Courts faced with a choice of law issue have a two-stage process:

(a) The court will apply the law of the forum (lex fori) to all procedural matters
(including, self-evidently, the choice of law rules);

(b) With regard to substantive questions of law, the court will look at factors that
connect/link the legal issues to the laws of potentially relevant states and applies the
laws that have the greatest connection, e.g.

(i) The law of nationality (lex patriae) or domicile (lex domicilii) will define legal
status and capacity,

(ii) The law of the state in which land is situated (lex situs) will be applied to
determine all questions of title,

(iii) The law of the place where a transaction physically takes place or of the
occurrence that gave rise to the litigation (lex loci actus) will often be the
controlling law selected when the matter is substantive.

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But the proper law has become a more common choice.

2.4. The Status of Foreign Law

Generally, when the court is to apply a foreign law, it must be proved by foreign law experts.
It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries
nor in how they might be applied in a foreign court. Such foreign law may be considered no
more than evidence, rather than law because of the issue of sovereignty.

If the local court is actually giving extraterritorial effect to a foreign law, it is less than
sovereign and so acting in a way that is potentially unconstitutional. The theoretical
responses to this issue are:

(a) That each court has an inherent jurisdiction to apply the laws of another country
where it is necessary to achieving a just outcome; or

(b) That the local court creates a right in its own laws to match that available under the
foreign law. This explanation is sustainable because, even in states which apply a
system of binding legal precedents, any precedent emerging from a conflicts case
can only apply to future conflicts cases. There will be no ratio decidendi that binds
future litigants in entirely local cases.

(c) That the national court, when applying a foreign law, does not give an
extraterritorial effect but recognizes, through its own "conflict of laws rule", that
the situation at hand falls under the scope of application of the foreign rule. In
order to understand this argument one must first define the notion of
extraterritorial application of a rule. This notion is susceptible to two distinct
meanings:

On the one hand, this notion is used to describe the situation where a local court applies a
rule other than the Lex fori (local law). On the other hand, it could mean that the rule is
being applied to a factual situation that occurred beyond the territory of its state of origin.

As an example of this situation, one can think of a Kenyan court applying an American tort
statutes and case law to a car accident that took place in New York where both the driver
and the victim are American citizens but the lawsuit was brought in before the Kenyan

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courts because the driver's insurer is Kenyan. One can then argue that since the factual
situation is within the American territory, where a Kenyan judge applies the American Law,
he does not give an extraterritorial application to the foreign rule. In fact, one can also argue
that the Kenyan judge, had he applied Kenyan Law, would be doing so in an extraterritorial
fashion.

Once the lex causae has been selected, it will be respected except when it appears to
contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his
own principles of ordre public (public order) and the parties cannot, by their own act, oust the
fundamental principles of the local municipal law which generally underpin areas such as
labour law, insurance, competition regulation, agency rules, embargoes, import-export
regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases
where an application of the lex causae would otherwise result in a fundamentally immoral
outcome, or give extraterritorial effect to confiscatory or other territorially limited laws.

In some countries, there is occasional evidence of parochialism when courts have

determined that if the foreign law cannot be proved to a ‘satisfactory standard’, then local
law may be applied. In the United Kingdom, in the absence of evidence being led, the
foreign law is presumed to be the same as the lex fori.

Similarly, judges might assume in default of express evidence to the contrary that the place
where the cause of action arose would provide certain basic protections, e.g. that the foreign
court would provide a remedy to someone who was injured due to the negligence of
another. Finally, some American courts have held that local law will be applied if the injury
occurred in an ‘uncivilized place that has no law or legal system.’

If the case has been submitted to arbitration rather than a national court, say because of a
forum selection clause, an arbitrator may decide not to apply local mandatory policies in the
face of a choice of law by the parties if this would defeat their commercial objectives.
However, the arbitral award may be challenged in the country where it was made or where
enforcement is sought by one of the parties on the ground that the relevant ordre public
should have been applied. If the lex loci arbitri has been ignored, but there was no real and
substantial connection between the place of arbitration and the agreement made by the
parties, a court in which enforcement is sought may well accept the tribunal's decision. But if

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the appeal is to the courts in the state where the arbitration was held, the judge cannot
ignore the mandatory provisions of the lex fori.

2.5. Harmonization
To apply one national legal system as against another may never be an entirely satisfactory
approach. The parties' interests may always be better protected by applying a law conceived
with international realities in mind.

There is a general recognition that there is a need for an international law of contracts: for
example, many nations have ratified the Vienna Convention on the International Sale of
Goods. the Rome Convention on the Law Applicable to Contractual Obligations also offers
less specialized uniformity, and there is support for the UNIDROIT Principles of
International Commercial Contracts, a private restatement, all of which represent continuing
efforts to produce international standards as the internet and other technologies encourage
ever more interstate commerce.

The Hague Conference on Private International Law is a treaty organization that oversees
conventions designed to develop a uniform system. The deliberations of the conference
have recently been the subject of controversy over the extent of cross-border jurisdiction on
electronic commerce and defamation issues.

The dominant trend remains the role of the forum law rather than a supranational system for
Conflict purposes. Even the EU, which has institutions capable of creating uniform rules
with direct effect, has failed to produce a universal system for the common market.
Nevertheless, the Treaty of Amsterdam does confer authority on the Community's
institutions to legislate by Council Regulation in this area with supranational effect. Article
177 would give the European Court of Justice jurisdiction to interpret and apply their
principles so, if the political will arises, uniformity may gradually emerge in letter. Whether
the domestic courts of the Member States would be consistent in applying those letters is
speculative.

These debates may come into play within the East African Community especially when
interpreting the protocol on Common Markets and free movement of persons as envisaged
thereunder.

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 Session 3
JURISDICTION, FOREIGN JUDGMENTS AND
ARBITRATION

3.1. Jurisdiction

3.1.1. Introduction

Under s 57(1) of the Civil procedure Act, a foreign state may sue in any court of Kenya,
provided that state has been recognized by Kenya, and provided the object of the suit is to
enforce a private right vested in the head of that state or in any officer of that state in his
public capacity.

Section 56 of the CPA also provides that alien enemies residing in Kenya with the
permission of the President, and alien friends, may sue in the courts of Kenya. However, no
alien enemy residing in Kenya without such permission, or residing in a foreign country, can
sue in the Kenyan courts.

3.1.2. Lis alibi pendens/Stay of Proceedings

Since Kenyan courts have jurisdiction to try cases having some foreign elements, it is
possible that conflicts may arise where another foreign court is also seized of the same
matter. When two courts are hearing the same dispute they can reach inconsistent decisions.

Res judicata provides that a once a case is determined as final, no party to the case can
commence another case on the same dispute in another court and only appeal can rise from
the case.

When a case is pending, no other case on the same issue can be commenced in another
court. Hence, under common law, if a court is seized with jurisdiction by service of process
on the defendant in a case involving a foreign element, a defendant who wishes to have the
case resolved in another forum may apply for the stay of proceedings. Lis alibi pendens (a
Latin term that means an action on the same cause of action is pending elsewhere) arises

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from international comity and permits a court to refuse to exercise jurisdiction when there is
parallel litigation pending in another jurisdiction. Under this rule, in appropriate cases, the
court will stay proceedings before it to await the outcome of the same case in a foreign court
or under foreign arbitration in exercise of case management (Reichhold Norway ASA v.
Goldmabn Sachs International [2000] 1 WLR (CA)).

This is also under the courts’ jurisdiction to prevent injustice.

In England, until the House of Lords decision in The Atlantic Star [1974] AC 436, a
defendant who sought a stay in the proceedings had a heavy burden. A stay could only be
granted if the continuance of the action would work an injustice in the sense that it would be
‘vexatious or oppressive’ and if it would not cause an injustice to the claimant ( Pierre v.
South American Stores (Gath and Chaves) ltd [1936]1 KB 382, 398 (CA)).

In the Atlantic Star, a majority of the House of Lords held that, although the plaintiff should
not lightly be denied the right to sue in the English Court, the term ‘vexatious or
oppressive’ should be interpreted more liberally, and the court should take into account the
advantage to the plaintiff and disadvantage to the defendant.

In another case: MacShannon v. Rockware Glass ltd [1978] AC 795, Lord Diplock
restated the governing principle as being that, in order to justify a stay, two conditions
should be satisfied, one positive and one negative:

a) The defendant has to satisfy the court that there was another forum to whose
jurisdiction he was amenable in which justice could be done between the parties at a
substantially less inconvenience or expense, and

b) The stay would not deprive the plaintiff of a legitimate personal or juridical
advantage which would be available to himself if he invoked the jurisdiction of the
local court.

Stay Because of Abuse of the Process - where resort for litigation is for an improper motive, such
as harassment of the defendant, then the court will also stay the proceedings.

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3.1.3. Forum Non Conveniens

Thus, national courts have the discretion to determine whether or not to exercise jurisdiction
and adjudicate upon a matter where a foreign court has similar jurisdiction.

The discretion on the court to determine whether or not to determine a suit provides a
principal mechanism by which the common law regulates and seeks to prevent clashes of
jurisdiction which arise when proceedings take place in more than one court.

The success of this application will largely depend on the dependent showing that a foreign
court is the more appropriate forum for the trial of the proceedings or rather that the local
court is not the appropriate forum (i.e. forum Non Conveniens).

Similarly, if the defendant wants the case to be determined in Kenya, he has to show that
Kenyan courts are more appropriate for the settlement of the matter ( Spiliada Maritime
Corp v. Cansulex Ltd [1987] AC 460.).

Thus, it was held in Airbus Industries GIE v. Patel [1999]1 AC 119, 131-133 that because
of the wide jurisdiction exercisable by the common law courts, recourse to the concept of
the ‘natural forum’ for litigation represents a principled and even-handed means of deciding
whether or where jurisdiction should be exercised.

If the parties have agreed that the matter be settled in a foreign forum, then, the courts will
usually uphold the agreement of the parties

3.1.4. Immunities

3.1.4.1. General Principle of State Immunity from Prosecution

Immunities against suits in Kenya are governed by Privileges and Immunities Act, cap
179 of the laws of Kenya. For foreign diplomats, section 4 of the Act made the Vienna
Convention on Diplomatic Relations signed in 1961 as the applicable law.

Under art 31 of the Vienna Convention, as replicated in schedule I of the Act, a diplomatic
agent shall enjoy immunity from the criminal jurisdiction. He shall also enjoy immunity from
its civil and administrative jurisdiction with exceptions that are provided.

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Under s. 5(2) of the Privileges and Immunities Act, immunities and privileges accorded
by customary international law or by international agreements shall be construed as a
reference to immunities and privileges conferred in the Act.

The basic principle is that a foreign state is immune from jurisdiction of the Courts of
another country. This is derived from principles of public international law and from the
maxim of law that ‘par in parem non habet imperium.’

In the Cristina case,1 it was held by Lord Atkins that:

The courts of a country will not implead a foreign sovereign, that is, they will
not by their process make him against his will a party to legal proceedings,
whether the proceedings involve the process against his person or seek to
recover from him specific property or damages.

This decision was upheld by Lord Denning in Trendtex Trading Corporation v. Central
Bank of Nigeria.2 However, in many jurisdictions, including the UK, there are a number of
exceptions to this rule.

It has been held that the grand of state immunity in civil proceedings pursued the legitimate
aim of complying with international law to promote comity and good relations between
states through respect for another state’s sovereignty. This was not therefore
disproportionate restriction on the right of access to a court. 3

3.1.4.2. Exceptions to State Immunity

(i) Proceedings in which the State has submitted to Court’s Jurisdiction. Under
article 32 of the Vienna Convention on Law of Diplomatic Immunity which is
replicated in Schedule I of the Privileges and Immunities Act, the immunity from

1
[1938] AC 485, 495 cf
2
[1977] QB 529, 555 (CA).
3
This was the decision of the European Court of Human Rights in McElhinney v. Ireland (2002) 34 EHRR
322; Al-Adsani v. UK (2002) 34 EHRR 273; Forgaty v. UK (2002)34 EHRR 302.
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 jurisdiction of diplomatic agents and of persons enjoying immunity may be waived
by the sending State. The waiver must always be express.

Furthermore, the initiation of proceedings by a diplomatic agent or by a person

enjoying immunity from jurisdiction under Article 37 shall preclude him from
invoking immunity from jurisdiction in respect of any counter-claim directly
connected with the principal claim.

At common law, state immunity could be waived by or on behalf of the foreign state.
The waiver was to have taken place when the court was asked to exercise jurisdiction
and could not be inferred from a prior contract to submit to the jurisdiction of the
court or arbitration.4 This has been modified by statutes which may allow imputation
of a waiver through a prior agreement. The state will also be deemed to have waived
its immunity if it has intervened or taken steps in the proceedings save when the
steps are only for the purposes of claiming immunity or asserting interest in
circumstances such that would entitle the state to immunity or in ignorance of fact of
the entitlement to immunity.

It has been held by the English Court that once a state has waived immunity, it will
be treated just as any other litigant in such matters as security as to cost (in Republic of
Costa Rica v. Erlanger5), and even in disclosure of documents (in US v. Wagner.6)

(ii) Proceedings Relating to Commercial Transaction or Contractual Obligation.

An action may be brought in court in Kenya relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving State outside
his official functions. Commercial transactions include contracts for supply of goods
and services; loans or transactions for the provision of finances (e.g. commercial
guaranteed); and any other transaction that the state engages in otherwise than in

4
Dicey Morris & Collins, The Conflict of Laws (14th edn, Sweet & Maxwells 2006) 285.
5
(1876) 3 ChD 62 (CA).
6
(1867)LR 2 Ch. App 582.
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 exercise of its sovereign power. E.g. contracts for supply of arms will be included in
the exception and thus a foreign state can be sued in the Kenyan Courts.

(iii) Proceedings in Relation to Contract of Employment between State and

Individual – When there is an employment dispute between the diplomatic mission
and its employees, an action may be commenced in the Kenyan court. This however
does not apply if the employee is the national of that foreign state or is not habitually
resident in Kenya.

(iv) Proceedings in Respect of Death, Personal Injury, Damage or Loss to

Personal Property – When death, injury or loss of property is caused by a diplomat,
action may be brought against the officer responsible to recover for the loss
occasioned.

(v) Proceedings in Immovable Property – Action may be commenced in respect of

interest of the foreign state in its use or possession of immovable property in Kenya
unless the property is held on behalf of the sending State for the purposes of the
diplomatic mission.

(vi) Proceedings in relation to the breach of intellectual Property Rights - Action

may be commenced against a diplomat for the breach of intellectual property rights.

(vii) Proceeding in respect to incorporated or unincorporated Bodies Registered in

the Country - unless the bodies are operating in Kenya by virtue of the Statehood of
the foreign country, courts will have jurisdiction over matters related to the
incorporated and unincorporated foreign bodies operated by a foreign state in
Kenya. E.g a suit may lie against Oilibya in Kenya notwithstanding that it is a Libyan
Corporation owned by the Libyan state.

(viii) Dispute relating to Arbitral Agreements - Where the foreign state in a prior
contract has agreed to submit the matter to arbitration unless it is Arbitration
Agreement between States, then the courts may be seized of the matter under the law
of arbitration.

(ix) Proceedings Related to Tax Liability – article 34 of the Vienna Convention as

adopted in Schedule I of the Privileges and Immunities Act exempts diplomatic

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 agents from all dues and taxes, personal or real, national, regional or municipal.
However, this immunity does not extent to:

(a) Indirect taxes of a kind which are normally incorporated in the price of
goods or services;

(b) Dues and taxes on private immovable property situated in the territory of
the receiving State, unless he holds it on behalf of the sending State for
the purposes of the mission;

(c) Estate, succession or inheritance, duties levied by the receiving State,

except in the case of the estate of a deceased diplomat;

(d) Dues and taxes on private income having its source in the receiving State
and capital taxes on investments made in commercial undertakings in
Kenya;

(e) Charges levied for specific services rendered;

(f) Registration, court or record fees, mortgage dues and stamp duty, with
respect to immovable property except for properties of the sending state.

(x) Proceedings in Succession Causes – An action may be brought in relation to

succession in which the diplomatic agent is involved as executor, administrator, heir
or legatee as a private person and not on behalf of the sending State.

(xi) Execution Proceedings – Execution of a legal obtained decree on those areas

where there is no immunity is valid provided that the measures concerned can be
taken without infringing the inviolability of his person or of his residence.

However, waiver of immunity from jurisdiction in respect of civil or administrative

proceedings shall not be held to imply waiver of immunity in respect of the
execution of the judgment, for which a separate waiver shall be necessary.

3.2. Enforcement of Foreign Judgements

In Kenya, the enforcement of foreign judgements by the local courts is governed by the
Foreign Judgments (Reciprocal Enforcement) Act cap 43 of the Laws of Kenya which is

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 An Act of Parliament to make new provision in Kenya for the enforcement of
judgments given in countries outside Kenya which accord reciprocal treatment
to judgments given in Kenya and for other purposes in connection therewith.

3.2.1. Judgments or Orders Given by Foreign Courts that are Enforceable

under the Foreign Judgments (Reciprocal Enforcement) Act

Under s. 3 of the Act, it applies with respect to judgments or orders given by foreign courts:

(a) In civil proceedings whereby a sum of money is made payable, including an order
for the payment of a lump sum as financial provision for, or maintenance of, a
spouse or a former or reputed spouse or a child or other person who is or was a
dependant of another;

(b) In civil proceedings under which movable property is ordered to be delivered to

any person, including an order for the delivery of movable property as part of a
scheme for the provision for, or maintenance of, a spouse or a former or reputed
spouse or a child or other person who is or was a dependant of another;

(c) In criminal proceedings for the payment of a sum of money in respect of

compensation or damage to an injured person or for the delivery of movable
property by way of restitution to an injured person;

(d) In appeals against judgments or orders above;

(e) For the costs of an appeal from a subordinate court, and

(f) Award in arbitration proceedings, if the award has, under the laws in force in the
country where it was made, become enforceable in the same manner as a judgment
given by a court in that country.

The Act will only apply in the above case if it:

(a) Requires the judgment debtor to make an interim payment of a sum of money to the
judgment creditor; or

(b) Is final and conclusive as between the parties thereto – However, a judgment is
deemed to be final and conclusive notwithstanding that an appeal may be pending

19
 against it, or that it may still be subject to appeal, in the courts of the country of the
original court.

3.2.2. Judgments and Orders not Enforceable under the Foreign

Judgments (Reciprocal Enforcement) Act

The Act does not apply and thus the courts will not enforce to judgments or orders:

(a) Whereby a sum of money is payable or an item of movable property is deliverable in

respect of taxes or other charges of a similar nature or in respect of a fine or other
penalty;

(b) To the extent to which it provides for the payment of a sum of money by way of
exemplary, punitive or multiple damages;

(c) For the periodical payment of money as financial provision for, or maintenance of, a
spouse or a former or reputed spouse or a child or other person who is or was a
dependant of the person against whom the order was made;

(d) In proceedings in connection with the custody or guardianship of children;

(e) In proceedings concerning the administration of the property or affairs of a person

who is incompetent or incapable of managing and administering his property and
affairs;

(f) In a matter of succession to, or administration of, estates of deceased persons

whereby a sum of money is payable or movable property is deliverable;

(g) In a matter of social security or public assistance whereby a sum of money is payable
by or to a public authority or fund;

(h) In bankruptcy proceedings or in proceedings for the winding-up or re-organization

of a corporation or in proceedings for judicial arrangements, compositions or similar
matters;

(i) In proceedings relating to damage, death or injury caused by occurrences involving

nuclear matter or the emission of ionizing radiation;

20
 (j) The bringing of proceedings in the foreign court was contrary to an agreement, or to
an instrument in respect of which the proceedings were instituted, whereby the
dispute, or the proceedings, were to be settled otherwise than in the courts of the
reciprocating country;

(k) The proceedings were not brought in that court by, or with the agreement of, the
person against whom the judgment was given

(l) The person did not counterclaim in the proceedings or otherwise submit to the
jurisdiction of the court;

(m) The judgement is regarded for the purposes of its enforcement as a judgment of a
designated country but which was given in another country or given by a designated
court in proceedings founded on a judgment of a court in another country and
having as their object the enforcement of the latter judgment.

3.2.3. Rules of Court for Enforcement of Foreign Judgement

The Act empowers the Chief Justice to make rules for enforcement of foreign judgement.
Under the Act, these rules may make provisions:-

(a) Empowering the High Court to require any person applying for registration of a
judgment to give security for costs;

(b) Regulating the manner in which a judgment debtor is to be served with a notice of
the registration of a judgment;

(c) Prescribing the manner in which any questions arising under the Act are to be
determined; and

(d) Prescribe any fee for the purposes of the Act.

Under these Rules (i.e. THE FOREIGN JUDGMENTS (RECIPROCAL

ENFORCEMENT) RULES), it had been provided that an application for registration of a
foreign judgement shall be made by originating summons entitled in the matter of the Act
and in the matter of the judgment sought to be registered.

21
An application for registration of a foreign judgment must be supported by an affidavit. This
affidavit should exhibit:

(b) The certificate in the form set out in the Schedule or to the same effect issued
from the original court under its seal and signed by a judge or registrar or by an
affidavit to the same effect an affidavit to the same effect;

(c) The judgment or the exemplification or a certified or duly authenticated copy

thereof;

(d) Where the judgment is not in the English language, a translation thereof in that
language certified by a notary public or the registrar of the original court or
authenticated by an affidavit;

(e) The name, trade or business and the usual or last known place of abode or
business and postal address of the judgment creditor and the judgment-debtor
respectively, so far as known to the deponent;

(f) A statement to fact that it is made to the best of the information or belief of the
deponent;

(g) A statement that the judgment creditor is entitled to enforce the judgment;

(h) A statement that either that the judgment has not been satisfied, or the amount
in respect of which it remains unsatisfied;

(i) A statement that the judgment is a judgment to which the Act applies (specifying
which paragraph of section 3 (1) of the Act applies);

(j) The fact whether the judgment is for an interim payment of a sum of money to
the judgment creditor or that it is final and conclusive as between the parties
thereto;

3.2.4. Grounds upon Which a Registered Judgment May Be Set Aside

(i) That the judgment does not fall within any of the classes of cases in which a
judgment may not be ordered to be registered under the Act;

22
(ii) Where the judgment is not in all respects a judgment which may be registered under
the Act, how much of the judgment may be so registered and the reasons therefor;

(iii) That the judgment can be enforced by execution in the country of the original court
and that if it were registered, the registration would not be liable to be set aside under
section 10 or 11 of the Act;

(iv) Where the application is made ex parte, it should state that the judgment-debtor was
personally served with process in the original action or that he appeared in the
original court;

(v) Specifying the amount of interest, if any, which under the law of the country of the
original court has become due under the judgment up to the time of registration;

(vi) If it is a garnishee, stating the facts supporting an application for that order under the
Act.

(vii) The judgment is not a judgment to which the Act applies;

(viii) The judgment was registered in contravention of this Act;

(ix) The courts of the country of the original court had no jurisdiction to adjudicate upon
the cause of action upon which the judgment was given;

(x) The judgment debtor did not appear in the original court and the jurisdiction of that
court was based upon an agreement by the judgment debtor to submit to its
jurisdiction which is invalid under the rules of private international law of Kenya;

(xi) The cause of action upon which the judgment was given had at the date of that
judgment been the subject of a final and conclusive judgment of a court having
jurisdiction to adjudicate upon that cause of action;

(xii) The matter in relation to which the judgment was given had, subsequent to the date
of that judgment, and as a result of proceedings instituted prior to the institution of
the proceedings in the original court, become the subject of a final and conclusive
judgment of a court in Kenya which is irreconcilable with the judgment of the
original court;

(xiii) The judgment debtor, being the defendant in the original proceedings,

23
 (xiv) Was not duly served with the process of the original court; or

(xv) The judgement debtor did not receive notice of those proceedings in sufficient time
to enable him to defend the proceedings notwithstanding that he was duly served in
conformity with the law of the country of that court;

(xvi) The judgement debtor did not appear or appeared only to contest jurisdiction etc
(see s. 4(2))

(xvii) The judgment was obtained by fraud, other than fraud which was, or could have
been, put in issue by the judgment debtor in the proceedings in the original court or
on appeal therefrom;

(xviii) There are provisions of the law of Kenya which, by virtue of the rules of private
international law of Kenya, would have been applicable notwithstanding any choice
of another system of law by the judgment creditor and the judgment debtor, had the
proceedings been brought in the High Court, and the judgment disregards those
provisions in some material respect;

(xix) The decision is different from that which the High Court, having applied the rules of
private international law of Kenya to the question at issue would have reached;

(xx) The judgment has been taken on appeal, and reversed or discharged or otherwise set
aside, in a court of the country of the original court;

(xxi) The judgment debtor is a person who, under the rules of public international law, is
entitled to immunity from the jurisdiction of the High Court;

(xxii) The rights under the judgment are not vested in the person by whom the application
for registration was made; and

(xxiii) The enforcement of the judgment would be manifestly contrary to public policy in
Kenya.

Furthermore S 9 of the Civil Procedure Act provides that a foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim, litigating under the same title,
except -

24
 (a) Where it has not been pronounced by a court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognize the law of Kenya in cases in which such law
is applicable;

(d) Where the proceedings in which the Judgment was obtained are opposed to natural
justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in Kenya.

3.3. Arbitration
Many transnational commercial contracts contain clauses by which the parties choose to
submit their disputes to international arbitration rather than to the national courts. Such
agreement has a significant impact on the applicable law. It takes the dispute outside the
purview of laws applicable to private disputes (including those of conflict of laws) instead
subjecting them to a separate regime, which is partly the product of private regulation and
partly the subject of international treaties and national law with the party having great
autonomy on the choice.

The Arbitration Act cap 4 of the laws of Kenya applies to both domestic arbitration and
international arbitrations, while the applicable international law regime is the one under
UNCITRAL Arbitral Rules (updated in 2010).

Under the Act, arbitration is international if:

(a) The parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different states;

(b) One of the following places is situated outside the state in which the parties have
their places of business –

(i) the juridical seat of arbitration is determined by or pursuant to the

arbitration agreement; or

25
 (ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter
of the dispute is most closely connected; or

(iii) the parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one state

The material validity, scope and interpretation of an arbitral agreement are governed by the
following principles:

a) The law expressly or impliedly chosen by the parties;

b) In the absence of such choice, the law which is most closely connected
with the arbitration agreement, which will in general, be the law of the seat
of arbitration (Lesotho Highlands Development Authority v.
Impregilo spA [2005] UKHL 43).

In general, arbitral proceedings are governed by the law of the seat of arbitration.

The substance of dispute before arbitration is governed by either:

a) The law chosen by the parties; or

b) If the parties so agree, such other considerations as are agreed by the partie or
determined by the tribunal; or

c) If there is no such choice or agreement , the law determined by the conflict og law
rules which the arbitral tribunal considers applicable.

26
 Session 4
FAMILY LAW I: MARRIAGE

4.1. Introduction
When the court has to decide whether a marriage is valid, foreign elements may be involved:
one or both of the spouses may be foreign, or the marriage may have been celebrated in a
foreign country.

There are various defects which may make a marriage invalid. These, and the rules that
precisely define them, will differ between the various laws. For example, the question may be
whether the proper formalities for the celebration of the marriage were complied with, or
whether one of the spouses was below the minimum permitted age, or whether they are too
closely related. On such matters, obviously, different countries have different rules.

For choice of law purposes, rules about the validity of marriage are divided into two classes:

(i) Those concerned with formal validity and

(ii) Those concerned with essential validity.

Rules of formal validity lay down the way in which a marriage must be celebrated. Rules of
essential validity are concerned with the substance of the marriage relationship itself.

Formal validity is governed by the law of the country where the marriage is celebrated (lex
loci celebrations), while essential validity is governed by the personal laws of the parties at the
time of, or immediately after, the marriage. We shall consider these propositions in detail
below.

4.1.1. Essential Validity

‘Essential validity’ covers all questions of validity other than formal validity. ‘Capacity to
marry’ is a category within essential validity. ‘Capacity to marry’ ought strictly to be confined
to rules which law down that a particular class of persons lacks a power to marry which
other people possess, for instance, a rule that a person below a certain age may not marry.

27
In practice, however, capacity to marry also includes cases where the reason for the invalidity
is that such a marriage relationship is objectionable in the eyes of the law, for instance, rules
prohibiting marriages between relatives of certain degrees. Capacity to marry does not
however cover the whole field of essential validity; it does not include the need for the
consent of the parties, or the non-consummation of the marriage.

The law of the country where the marriage is celebrated is not thought appropriate in the
conflict of laws to govern essential validity. This is because the marriage may be celebrated in
a country which in other respects has no connection with the marriage or the parties.
Neither of the parties may be domiciled there before the ceremony, and they may not
establish their home there after it. So there is no good reason for the law of that country to
decide whether or not the marriage relationship is permissible.

For essential validity, therefore, it is the personal law which is important. But is it to be the
law of the country or countries to which the parties belonged immediately before the
marriage, or the law of the country in which they are to set up their home together after the
marriage? There are two rules which have been applied by the courts, and there has long
been controversy as to the proper role of each of them.

One rule is called the dual domicile rule. According to this rule, the law of each party’s domicile
at the date of the marriage has to be considered. For the marriage to be valid, each party
must have capacity by the law of his or her domicile. The other rule is that the law of the
intended matrimonial home (sometimes called the matrimonial domicile) governs, that is the law
of the country in which the parties establish their matrimonial home after the marriage, in
accordance with their intention at the time of the marriage. Here the marriage only has to be
valid by one law.

Which is the better rule probably depends on the nature of the invalidity in question. The
intended matrimonial home rule seems the more appropriate to govern incapacities which
are imposed to protect the public interests of countries, rather than the interests of the
parties to the marriage. This is because it is the country in which the parties settle as married
couple after the marriage, rather than a country in which either of them used to live before
the marriage, whose interests can be affected by the existence of the marriage. An example
of such incapacity, imposed in the public interest, is the prohibition of polygamy.

28
The dual domicile rule, under which the marriage must be valid under the law of each party’s
domicile at the time of the marriage, seems the more appropriate for incapacities which are
imposed in the interests of a party, or for his protection, such as minimum age for marriage,
or rules entitling a person to have a marriage annulled to which he did not consent, or which
has not been consummated. The law of the country to which a party belongs at the time of
the marriage seems the right one to determine what protection he requires. It is thought by
some that the dual domicile rule is the correct one for all aspects of capacity, on the ground
that the country of a person’s ante nuptial domicile is interested in his status, and its views
on religious or moral issues should prevail. It is not clear however why this should be so in
the case of an adult who is abandoning his country immediately after the marriage. The dual
domicile rule is also advocated on the ground that the intended matrimonial home rule
causes uncertainty, a point we shall return to below.

Another approach which has been suggested recently is that whichever of the two doctrines
would in the particular case result in the marriage being valid should be applied. The
rationale for this will be considered below.

We shall now consider some of the cases dealing with the various aspects of essential
validity. As the various domestic rules which may invalidate marriages are different in their
nature and purpose, it will not be surprising to find that the same choice of law rule does not
cover the whole field.

4.1.1.1. Examples of Aspects of Essential Validity

(i) Prohibited Degrees of Relationship

While all the systems of law impose restrictions on marriage between persons who are
related, the precise rules vary between different countries. The prohibitions may extend not
only to blood relationships (consanguinity), but also to relationships to marriage (affinity).
One reason for the prohibition of marriage between blood relations must be the eugenic one
of reducing the risk of defective offspring. Other reasons for the prohibitions, with regard
to both kinds of relationship, are sociological, moral and religious. So it is the public interest,
rather than the protection of the spouses themselves, that is the main object of these

29
incapacities. One might therefore think that the intended matrimonial home rule would be
the correct one here.

However, the strong weight of authority is that the dual domicile rule applies to the
prohibited degrees. True, the only House of Lords decision on the matter leaves the
questions open. In Brook v Brook [1861] 9 HL Cas 193, the husband wished to marry the
sister of his deceased wife. The intending spouses were both domiciled in England. By
English law at that time, a marriage between a man and his former wife’s sister, aunt or niece
(or between a woman and her former husband’s brother, uncle or nephew) was prohibited,
so the parties celebrated their marriage in Denmark, by the law of which it was valid. They
returned to live in England after the marriage. The House of Lords held the marriage void,
establishing that questions of essential, as opposed to formal, validity are not to be decided
by the lex loci celebrationis. Lord Campbell said,

‘The essentials of the marriage depend on the lex domicilii, the law of the country
in which the parties are domiciled at the time of the marriage and in which the
matrimonial residence is contemplated.’

This leaves open the position when one or both of the parties have a different antenuptial
domicile from the intended matrimonial residence.

Later cases, however, with increasing explicitness, have inclined to the dual domicile test,
although, at least in most cases, the result under the test would not have been different. In
Re Paine [1940] Ch 46, for example, the marriage was celebrated in Germany between a
man domiciled in Germany and his deceased wife’s sister, who was domiciled in England.
By German Law such a marriage was valid, but the marriage was held invalid under English
law, the judge holding that each spouse must have capacity to marry the other by the law of
his or her ante nuptial domicile. The result would no doubt have been the same under the
intended matrimonial home rule, for the parties settled in England after the marriage.
Though there is no decision of the House of Lords excluding the intended matrimonial
home approach, and, as we shall see, there have been judicial statements in favour of that
approach in other contexts, it seems safest to say that, as the law stands, the dual domicile
rule applies to prohibited degrees of relationship (see also Cheni v. Cheni [1965] P 85).

30
There is however an exception to the dual domicile rule, to the effect that if a marriage is
celebrated in England and one party is domiciled in England at the time of the marriage,
then it is governed by English law alone. Any invalidity under the law of the foreign domicile
of the other party is ignored. This rule was laid down in Sottomayor v De Barros (No 2)
[1879] 5 PD 94, in which a marriage was celebrated in England between first cousins, the
husband domiciled at the time of the marriage in England, the wife in Portugal. Even though
a marriage between first cousins was prohibited by Portuguese law, the marriage was held
valid under English law. The basis of the decision was that it would be unjust to an English
party who celebrates in England a marriage which is valid by English law to hold the
marriage void under a foreign law. The decision has been criticised however, because it only
operates in favour of an English person marrying in England, not a foreign person marrying
in his own country. It can also be argued that the supposed injustice to the English party
marrying in England would only occur if the parties intended to settle in England (as was
indeed the case in Sottomayor v De Barros (No 2)); if they planned to settle abroad, it is
hard to see how justice could be offended if the marriage were held invalid under the foreign
law. Sottomayor v De Barros (No 2) would indeed be easy to justify if it had been decided
under the intended matrimonial home rule; but as an exception to the dual domicile rule it is
anomalous. Nevertheless, it has been accepted as part of the law by the Court of Appeal in
cases not confined to the prohibited degrees. (Ogden v Ogden [1908] P 46; Vervaeke v
Smith, [1981] 1 AII ER 55 at 87,)

(ii) Non-Age

Countries have varying rules on the minimum age for marriage. The Kenyan rule is
contained in the Marriage Act, which provides that a marriage solemnised between persons
either of whom is under the age of 16 shall be void.

There is doubt that the dual domicile rule applies here. The law which is most fitted to decide
whether a young person needs protection against his own immaturity and want of judgement
is the law of the country to which he belongs at the time of the marriage. So each party
must have capacity by the law of his or her ante nuptial domicile. Thus in Altaji
Mohammed v Knott [1969] I QB 1, a man of 27 and a girl of 13, both domiciled in
Nigeria, had married each other there, and come to England four months later, where they

31
were to live while the husband was a student. The court accepted without demur that the
marriage was valid, because the wife was old enough by Nigerian law, even though she was
too young by English law.

(iii) One Party Already Married

What law decides whether a marriage is invalid on the ground that one spouse is party to
another subsisting marriage? This question can arise in two different ways. In the one kind
of case, all the possibly applicable laws allow only monogamous marriage. The conflict
arises because they disagree as to whether or not one of the parties is already married, for
example, because a divorce dissolving the previous marriage of one of the spouses is
recognised by one of the laws but not by another. This kind of case is usually dealt with
under the heading of ‘Bigamy’ or ‘Previous Marriage’. In the other class of case, the
husband admittedly already has a wife according to all the possibly relevant laws, and the
conflict arises because one or more of them permit polygamy but the others do not. Here
the issue is ‘Capacity to Contract a Polygamous Marriage’.

 Capacity to Contract a Polygamous Marriage

The topic of polygamous marriages will be dealt with further below (when it will be seen that
a marriage can sometimes be regarded as polygamous even if the husband does not already
have a wife).19 However, the question of capacity to enter such a marriage will be dealt with
here. It was decided in Radwan v. Radwan (No 2) [1972] 3 AII ER 1026 that the intended
matrimonial home rule applies to this aspect of capacity. In that case, the marriage was
celebrated in France in Moslem (polygamous) form. The husband was a Moslem domiciled
in Egypt who already had a wife married to him in Egypt by Moslem rites. The second wife
was domiciled in England at the time of the ceremony, but the parties set up their
matrimonial home in Egypt after the marriage, as they had intended at the time of the
marriage. Some years later they moved to England. When the wife petitioned in the English
court for a divorce, the question arose whether the marriage was valid. It was argued that it
was void because under English law, as the law of her ante nuptial domicile, the wife lacked
capacity to marry a man who was not single. By Egyptian law the polygamous marriage was
valid, however, and the judge held it valid on the application of the intended matrimonial
home rule.

32
The decision has been strongly criticised, mainly on the ground that it is well established that
other aspects of capacity to marry are subject to the dual domicile rule. But as Cumming-
Bruce J said,

‘It is arguable that it is an over-simplification of the common law to assume that

the same test for purposes of choice of law applies to every kind of incapacity –
non-age, affinity, prohibition of monogamous contract by virtue of an existing
spouse, and capacity for polygamy. Different public and social factors are
relevant to each of these types of incapacity …’

It is certainly hard to see why such a marriage as that in Radwan v. Radwan (No 2) should
be void. True, the wife was domiciled in England when the marriage was celebrated, and the
English law prohibits a marriage between a woman and a man who already has a wife.
However, her domicile in England was to cease after the marriage, she was to become an
Egyptian, and there was nothing wrong with the marriage in Egyptian eyes. The English rule
against polygamy safeguards English standards of the structure of marriage and family.
What reason is there to apply it to a marriage relationship, which is to subsist in Egypt?

 Bigamy

Here we are concerned with cases where none of the possibly applicable laws permit
polygamy. The conflict arises because one of the parties is already married according to one
of the laws but not according to the other. This may be because the previous marriage of
one party was dissolved: one law recognises the divorce, the other does not.

In Lawrence v Lawrence [1985] I AII ER 506 affd [1985] 2 AII ER 733 the wife, then
domiciled in Brazil, obtained a divorce from her first husband in Nevada. The next day, in
Nevada, she married the second husband, who was domiciled in England. England was also
the intended matrimonial home, and the parties set up home there very soon after the
marriage. The wife’s Nevada divorce was recognised by English law but not by the Brazilian
law, under which she remained married to her first husband. The wife petitioned in the
English court for a nullity decree on the ground that the marriage was bigamous. English
and Brazilian law agree that the wife did not have capacity to contract the second marriage
unless she was single. The conflict arose because the two laws, taking different views as to

33
the validity of the Nevada divorce, also took different views as to whether the wife was
single when she remarried. Which law should govern?

The wife contended that her capacity to marry her second husband was governed by
Brazilian law as the law of her antenuptial domicile. Since the Nevada divorce was invalid by
Brazilian law she lacked capacity by that law, so the marriage was void. The trial judge,
however, held that the validity of the remarriage was governed by English law, because,
being the law of the intended matrimonial domicile, it was the law of the country with which
the marriage had its most real and substantial connection. Since the divorce was recognised
by English law, the remarriage was valid.

The converse situation to that in Lawrence v Lawrence can also occur, where the divorce
is not valid by the lex fori, but is valid by the lex causae. In the Canadian case of Schwebel v
Ungar [1963] 42 DLR (2d) 622; affd [1964] 48 DLR (2D) 644, the wife and her first
husband were originally domiciled in Hungary. On their way to settle in Israel, while in Italy
but still domiciled in Hungary, the husband divorced the wife under Jewish law. They then
made their way to Israel where both became domiciled, and where the divorce was
recognised as valid. Some years later, the wife, still domiciled in Israel, married in Ontario a
second husband who was domiciled there. The divorce obtained in Italy was not recognised
in Ontario. The second husband petitioned in the Ontario court for a nullity decree, on the
ground that when the wife’s second marriage was celebrated, she was still married to her first
husband. The Canadian courts held the remarriage valid, because using the dual domicile
rule, the wife’s capacity to remarry was governed by the law of Israel, and by that law the
divorce was valid, even though it was not valid by the lex fori, Ontario law. In other words,
the lex causae approach was used for the incidental question.

(iv) Consent of the Parties

Under lack of consent, we deal with cases where a party maintains that he did not consent to
the marriage at all, or, more likely, that his apparent consent was vitiated by some defect
such as fraud, duress or mistake. The conflict will arise because the precise rules differ from
one legal system to another.

The dual domicile rule rightly applies to consent, for the issue is the protection of an
aggrieved party, not the public interest of the country in which the marriage relationship will
34
be centered. In Szechter v Szechter [1971] P. 286, the parties were domiciled in Poland,
where the marriage was celebrated. The parties only entered into the marriage in order to
obtain the wife’s release from prison, where her personal safety was threatened. On her
release, the parties made their way to England. The wife brought nullity proceedings in the
English court on the ground that she had entered the marriage under duress. The judge
holding that the matter was governed by Polish law as the law of the parties’ antenuptial
domicile, granted a nullity decree on the basis of expert evidence that the marriage was
invalid for lack of consent by Polish law. The husband was thus enabled to remarry his
original wife, whom he had divorced as part of the scheme to secure the release of the
second wife.

Earlier, in Way v Way [1950] P 71, a marriage had been celebrated in Russia between a wife
domiciled there and a husband domiciled in England. The husband sought a nullity decree in
the English court, one of the grounds being lack of consent: he had entered the marriage
under the mistaken belief that the wife would be permitted to come to live with him in
England. The judge’s view seems to have been that whether the husband had consented was
to be decided according to English law at the law of his own domicile. By that law the
mistake was immaterial, so the marriage was not invalid for lack of consent.

(v) Non-Consummation of the Marriage

Under common and statutory law, a marriage is voidable (a) on the ground that it has not
been consummated owing to the incapacity of either party to consummate it, and (b) on the
ground that it has not been consummated owing to the wilful refusal of the respondent to
consummate it. Other countries may have different rules on the subject. For example,
neither impotence nor wilful refusal may affect the validity of the marriage; or the latter may
not do so, but may or may not be a ground for divorce. Which law governs?

It was held by the Court of Appeal in De Reneville v De Reneville [1948] P 100, that these
issues are to be decided by ‘the law of the husband’s domicile at the time to the marriage or
(preferably) … the law of the matrimonial domicile in reference to which the parties may
have been supposed to enter into the bonds of marriage’. This approach has been followed
in subsequent cases. In Ponticelli v Ponticelli [1958] P 204, for example, a marriage was
celebrated in Italy between a wife domiciled there and a husband domiciled in England,

35
where the parties set up their matrimonial hoe. The husband petitioned the English court for
a nullity decree on the grounds of the wife’s wilful refusal to consummate the marriage. By
Italian law wilful refusal was not a ground of nullity. Sachs J held that English law governed,
either as the lex fori or (the view he preferred) as the lex domicilii, by which he meant ‘the law
of the country in which the parties are domiciled at the time of the marriage, and in which
the matrimonial residence is contemplated’. This, he said, ‘normally coincides with the law
pertaining to the husband’s domicile at the time of the marriage’. So a nullity decree was
granted.

While authority is in favour of the law of the husband’s domicile at the time of the marriage,
or of the intended home, if that is different, it is by no means clear that that is the best rule
for non-consummation. Here, as with consent, the concern is with the protection of a party
to the marriage, not with the public interest of the country in which the parties set up their
home. Looked at in this light a matrimonial home rule can work unjustly against the
petitioner, as a variation of the facts in Ponticelli v. Ponticelli will show. Suppose the wife
is English, the husband Italian, and Italy the matrimonial home. The husband wilfully refuses
to consummate the marriage, which does not give ground for annulment under Italian law.
On an intended matrimonial home rule, the wife would be unable to obtain annulment in
the in the English court. It seems only just, however, that a spouse should be able to rely on
the law of the country to which she belonged before the marriage to determine that the
marriage is one to which she should not be unwillingly tied. On this basis, the governing law
should be that of the petitioner’s domicile at the date of the marriage.

(vi)Parental Consent

Legal systems often provide that persons below a certain age must have the consent of their
parents to marry, but of course the age below which such consent is necessary, and the
consequences of failure to obtain it, differ from one law to another. We meet here a problem
of classification or characterisation. Are such rules to be classified as rules of capacity to marry,
coming under the dual domicile rule, or a rules laying down formalities, coming under the
rule that formal validity is governed by the lex loci celebrationis? At first sight, it might seem
that a requirement of parental consent is one of capacity, at any rate if the marriage is invalid
without such consent, presumably because it is thought that the judgement of the person

36
concerned is insufficiently mature. The English requirement of parental consent, however, is
regarded by the English courts as a formality, not incapacity. The main reason for this is that
the absence of parental consent in English law does not normally invalidate the marriage. If
the parties manage to have the marriage celebrated without it, the marriage is nevertheless
normally valid. So it is hardly possible to say that there is any incapacity involved.

It should not necessarily follow that a foreign rule about parental consent should also be
classified as one of formalities, if by the foreign law the absence of parental consent does
affect the validity of the marriage. Nevertheless, it has been held that such a foreign rule is a
formality, and therefore only to be applied if the marriage is celebrated in the foreign country
concerned. In Ogden v. Ogden, a marriage was celebrated in England between a woman
domiciled in England and a 19 year old domiciled in France. According to French law, a man
of that age required the consent of his parents to marry, and if such consent was not
obtained, the marriage was voidable. The English Court of Appeal held that the marriage
was valid. One reason for the decision was that since the marriage was celebrated in England
and the wife was domiciled there, then according to the rule in Sottomayor v De Barros
(No 2), the validity of the marriage was to be tested exclusively by English law. The court,
however, also regarded the French requirement of parental consent as a formality. On that
basis also, French law, not being the lex loci, was inapplicable.

The latter basis of the decision has been widely criticised, but in Lodge v Lodge [1963] 107
Sol Jo 437, it was again accepted that the French requirement was a formality. In this case,
the marriage was celebrated in Scotland between a husband domiciled in England and a wife
aged 18 domiciled in France who did not have parental consent. The English court held the
marriage valid under Scottish law as the lex loci, following Ogden V Ogden. This decision
could not have been reached under Sottomayor V De Barros.

Critics of this approach would not necessarily claim that all rules relating to parental consent,
where the consequence is invalidity, should be treated as rules of capacity. In Simonin v
Mallac [1860] 2 Sw & Tr 67, a couple domiciled in France celebrated their marriage in
England without parental consent. The husband was 29 and the wife 22. By French law
parties of those ages had to request the consent of their parents ‘by a respectful and formal
act’. If however this was refused, and continued to be refused when the request was

37
repeated twice more at monthly intervals, then the parties were free to marry without it. The
marriage was held valid. The French rule here can reasonably be regarded as one of
formality, in substance analogous to a requirement of notice, unlike the rule in Ogden v
Ogden, under which the parental consent could not be dispensed with.

4.1.1.2. The Intended Matrimonial Home Rule and New Approaches

We have considered above two cases – Radwan v. Radwan and Lawrence v Lawrence (at
first instance) – in which judges have preferred the intended matrimonial home rule to the
dual domicile rule. Earlier support for the intended matrimonial home rule had come from
the Court of Appeal in De Reneville v De Reneville a case on non-consummation which
we shall consider below. Another recent judgement in which a similar approach was
advocated is that of Lord Simon in Vervaeke v Smith [1983] I AC 145 at 166, where he
suggested that those questions of essential validity, where the issue is which law’s public
policy should determine the validity of the marriage, should be governed by the law of the
country with which the marriage has its most real and substantial connection. That law, he
said, ‘will often be the law of the prospective matrimonial home’. The issue in Vervaeke v
Smith to which Lord Simon applied his test was the validity of a sham marriage, the parties
never intending to live together; in such a case there is of course no intended matrimonial
home. Other questions which would seem to come within Lord Simon’s category are
prohibited degrees and the capacity to contract a polygamous marriage. In such cases there
would normally be an intended matrimonial home, so there would be no need to look any
further for the country with which the marriage has its most real and substantial connection.
(As the law stands, as we have seen, only the second of these questions is governed by the
law of the intended matrimonial home.)

Most recently, it has been suggested by a member of the Court of Appeal in Lawrence v
Lawrence that whichever test – whether the dual domicile or the intended matrimonial
home rules – would lead to the marriage being valid should be applied. This would mean
that the marriage would only be invalid if it is so both by the law of the intended
matrimonial home and by the law of the domicile of one or both of the parties. It remains
to be seen whether this approach will be taken up. It can be justified on the basis that there
is no reason to hold a marriage invalid on a ground based on the public interest (such as

38
polygamy, prohibited degrees), if it is valid by the law of the country where the marriage
relationship is to exist. However, even if it is invalid by the law of that country, the spouses’’
expectation that their marriage, which is unobjectionable by the standards of their own
countries at the time of the marriage, will be valid should be met. Validity by the law of the
intended matrimonial home alone should not however be sufficient for incapacity, such as
non-age, imposed for the protection of a party, who should be able to rely on the law of his
own country at the time of the marriage.

The strongest objection to an intended matrimonial home approach is that it is said to lead
to unacceptable uncertainty. Morris says,

‘Very serious practical difficulties are likely to arise if the validity of a marriage
has to remain in suspense while we wait and see (for an unspecified period)
whether or not the parties implement their (unexpressed) ante nuptial intention
to acquire another domicile. This is especially true if interests in property
depend on the validity of a marriage, as, for instance, where a widow’s pension
ceased on her remarriage.’

There must of course be some way of dealing with cases where the parties never settle in any
country, or only do so long after the marriage. Cheshire’s solution was that if the
matrimonial home is not set up within a reasonable time, then the husband’s domicile should
be presumed to be the intended matrimonial home. It is difficult however to justify this
preference for the husband’s domicile. A better solution would be available if the approach
just mentioned, that the marriage is valid if it is so under either the intended matrimonial
home or the dual domicile doctrine, were adopted. Then if no matrimonial home is
established within a reasonable time, the validity of the marriage would be decided
exclusively by the dual domicile rule. That leaves the question, how long is a reasonable
time? In practice, this vague question would not be answerable. The courts would wish to
validate marriages, and so would tend to hold the time to reasonable if that would cause no
undue difficulty about the status, or accrued or expected rights of the spouses or third
parties in relation to succession, pensions or other such matters.

39
4.1.2. Formal Validity

Under formal validity, we are concerned with the law which governs the ceremony and other
formalities required for the valid celebration of a marriage. Is a civil ceremony or a religious
ceremony necessary, or will either suffice, or is it enough for the spouses simply to take each
other as husband and wife? If a ceremony is required, what ancillary formalities as to notices
and witnesses are necessary? Where, when and by whom must the ceremony be conducted?
Must the parties be present personally, or may the marriage be celebrated by proxy? Which
law governs such matters as these?

The basic rule is that formal validity is governed by the lex loci celebrationis, the law of the
country where the marriage is celebrated, The rule is an application of a general principle of
the conflict of laws, locus regit actum (the place governs the deed). The principle is one of
convenience. Parties to a transaction must be free to use a form which is required or
available to them where they happen to be. It would not be reasonable to require a couple
who are marrying in country X to use there a ceremony required by the law of their domicile,
Y, if that ceremony is not available or has no legal foundation there.

In Berthiaume v Dastous [1930] AC 79, the spouses, who were domiciled in Quebec, were
married in a Roman Catholic Church in France. The marriage was void by French law
because, owing to a mistake by the priest, it had not been preceded by a civil ceremony.
Even though by the law of Quebec a religious ceremony alone was sufficient, the Privy
Council (on appeal from Quebec) held the marriage void.

So compliance with the lex loci is not only sufficient, but is also compulsory. That can hardly
be justified by the convenience of the parties. For other legal acts, such as wills and
contracts, compliance with other laws than that of the place of celebration is sufficient, and
in some legal systems that is true of marriage as well, at least for marriages celebrated in
foreign countries. For example, compliance with the formalities of the lex loci or the personal
laws of the parties may be enough. In English law, however, there are only minor exceptions
(which will be mentioned below) to the rule that the lex loci governs the formal validity of
marriage.

The rule extends even to the retrospective validation by the lex loci of a marriage originally
void under that law. In Starkowski v. A-G [1954] AC 155, spouses domiciled in Poland
40
celebrated their marriage in a church in Austria, without any civil ceremony. According to
Austrian law as it then stood, such marriage was void, but five years later the marriage was
retrospectively validated as a result of Austrian legislation. In the meantime, the parties had
become domiciled in England, but they separated, and the year after validation of the
marriage by Austrian law the wife remarried. The House of Lords had to decide whether a
child of that second marriage was legitimate, which depended on the validity of that marriage
which in turn depended on whether the first marriage had been validated in the eyes of
English law.

The House of Lords held that effect must be given to the retrospective validation by
Austrian law, even though this involved a change in the status, without their assent, of
people who at the time of the validation were domiciled in England and had no remaining
connection with Austria. The good practical reason for this was legislation retrospectively
validating marriages which, through error or misconstruction of a statute, have not complied
with the proper formalities is necessary form time to time in all countries. Such legislation
can of course only practicably be enacted in the country where the marriages in question
were celebrated. England should give effect to such legislation, for to do so will be beneficial
to the great majority of the spouses concerned who celebrated their marriages in good faith,
and wish them to be validated. The result in Starkowski itself was that the second marriage
was void, and the child of it illegitimate.

The House of Lords left open the question whether effect would have been given to the
Austrian legislation had the wife’s remarriage taken place before the validation of the first
marriage. That would mean not merely that the first marriage would be retrospectively
validated, but that the second, originally valid, retrospectively invalidated. It is doubtful
whether the law would go as far as that.

41
 Session 5
FAMILY LAW II: MATRIMONIAL CAUSES

5.1. Introduction
In this section we shall be examining the jurisdiction of the courts in matrimonial cases,
particularly proceedings for divorce or annulment of marriage, and the extent to which the
decrees of foreign courts in matrimonial cases are recognised in domestic courts.

It might be thought that just as the question whether a marriage was valid in its inception
may be governed by a foreign law, so also in appropriate cases should the question whether
there are sufficient grounds for its dissolution be referred to a foreign law, for instance the
law of the parties’ domicile at the date of the proceedings. In fact however, when the
Kenyan court has jurisdiction in a divorce suit, it applies exclusively Kenyan law to
determine whether a divorce should be granted.

There is good reason for this. If foreign laws were applicable, they would presumably be
those of the countries to which the parties belong. But by applying Kenyan law the court is
in fact applying the law of the country, Kenya, to which at least one of the parties belongs,
for the court only has jurisdiction if a party is either domiciled or habitually resident in
Kenya. In view of the technical rules of domicile, as we have seen, habitual residence may
denote a more genuine connection with Kenya than domicile. Moreover, the circumstances
in which a marriage should be dissolved by the English courts are very much a matter of
Kenyan public policy, as reflected by Kenyan domestic law.

At one time, the principle of the common law conflict of laws was that any change of a
person’s status was for the domicile alone to determine. In Le Mesurier v Le Mersurier
[1895] AC 517, it was said in the Privy Council that ‘according to international law, the
domicile for the time being of the married pair affords the only true test of jurisdiction to
dissolve their marriage’. It followed that the English court would only grant a divorce if the
at the commencement of the proceedings the parties were domiciled in England, and, as we

42
shall see below, a foreign divorce would only be recognised if it was granted by the court of
the domicile, or at least recognised as valid by that court.

That approach has now been abandoned. This happened because the principle was not
accepted by the many countries which use the criterion of nationality rather than domicile,
and because the narrow jurisdiction could cause grave hardship to wives who wished to
divorce their husbands in the English court. Until 1974, it will be recalled, a married woman
necessarily had the same domicile as her husband, so that an English wife would be deprived
of her right to sue for divorce in England if her husband chose to abandon his English
domicile, which of course he could do without any reference to her wishes or interests.
Statutory extensions of the court’s divorce jurisdiction were therefore made for the
protection of married women, enabling a wife to petition for divorce in the English court if
her husband had been domiciled in England immediately before deserting her, or if she had
been ordinarily resident in England for the three years immediately preceding her petition,
wherever the parties might be domiciled at the commencement of the proceedings.

The exclusive role of the domicile having thus been breached, and married women now
having independent domiciles, new grounds of jurisdiction were introduced, based simply on
the policy that at least one of the parties, whether husband or wife, petitioner or respondent,
should have a sufficient connection with England to make it reasonable for the English
court to deal with the case, and likely that the divorce will be recognised in other countries.
The present grounds of jurisdiction are contained in sections 4 and 5 of the Matrimonial
Cause Act, in terms of which the court has jurisdiction to entertain proceedings for divorce
if:

 The Petitioner is domiciled in Kenya on the date when the proceedings are begun,
or,

 The wife has been ordinarily resident in Kenya for at least a period of three years

5.2. Recognition of Foreign Divorces

The question often arises whether a divorce granted by a foreign court is recognised as valid
in Kenya. If it is not recognised, then of course the parties, although regarded as single
persons in the country where the divorce was granted and in any other country which
43
recognises the divorce, remain married to each other in the eyes of Kenyan law (and of any
other law which does not recognise the divorce). Such a marriage, which still subsists
according to one or more laws, but has been dissolved according to others, is called a
‘limping marriage’. The hardship and inconvenience which can result from a marital status
which differs from one country to another is obvious. However, try to avoid this by simply
recognising all foreign divorces would enable a spouse to evade the requirements of the law
of the country or countries with which neither has any genuine connection, but whose
courts exercise divorce jurisdiction on flimsy grounds.

The rules governing the recognition of foreign divorces therefore aim to strike the right
balance between being too restrictive, thus unnecessarily creating limping marriages, and
being too generous, thus sanctioning bogus divorces.

Originally, as we saw above, the principle is that it was for the courts of the domicile alone
to change the status of the parties, and just as the Kenyan courts would only exercise divorce
jurisdiction if the spouses were domiciled in Kenya, so also they would only recognise
divorces granted by, or recognised by, the courts of the domicile. When the jurisdiction of
the Kenyan courts was extended by statute to cases where the husband had been domiciled
in Kenya immediately before deserting the wife, or the wife had been ordinarily resident in
Kenya for three years, the Court of Appeal held, in Travers v Holley [1953] P 246, that a
divorce granted by a foreign court to a wife should qualify for recognition if the English
court in equivalent circumstances would have had jurisdiction, that is if the husband had
been domiciled in the foreign country in question immediately before deserting his wife, or
the latter had been ordinarily resident in the foreign country for the three years preceding her
divorce petition.

Later, the House of Lords took the view that the proper approach was to recognise a divorce
obtained in a country with which the spouses, or one of them, had a sufficient connection,
whether or not that connection happened to coincide with one chosen in England for the
exercise of jurisdiction. It was thus held in Indyka v Indyka [1969] I AC 33 that a foreign
divorce should be recognised if at the commencement of the foreign proceedings there was
a real and substantial connection between either of the parties and the country in which the
divorce was obtained. While this was certainly a generous approach, this ground of

44
recognition was extremely vague, making the status of the parties in England uncertain, and
the decision of the court difficult to predict.

With the Recognition of Divorces and Legal Separations Act 1971, statutory rules for the
recognition of foreign divorces were introduced which were both reasonably generous and
precise. They were enacted as the result of an international convention, to which the United
Kingdom is a party, which was produced in 1968 by the Hague Conference on Private
International Law. As the convention recognised the best way to avoid limping marriages as
the result of the non-recognition of divorces is for as many countries as possible to agree on
the circumstances in which they will recognise foreign divorces, and then for each of them
to refrain from granting divorces which will not be recognised. Under the 1971 Act, the
common law grounds of recognition on the basis that the divorce had been obtained, or was
recognised, in the country of the domicile continued, but the rules in Travers v Holley and
Indyka v Indyka were abolished, and replaced by new grounds of recognition on the basis
of either party being a national of, or habitually resident in, the country in which the divorce
was obtained.

Very recently, the grounds of recognition contained in the 1971 Act have been amended by
the Family Law Act 1986, in which the present law is contained. One change is that the
common law ground of recognition under Armitage v A-G, preserved by the 1971 Act, on
the basis of the divorce being recognised by the law of the parties’ domiciles, though not
obtained in the country in which either was domiciled, has been abolished. Thus the last
relic of the old notion that divorce involving a change of status, was primarily a matter for
the domicile has been abandoned. The policy now is simply that the divorce should have
been obtained in a country having an adequate connection with either of the parties.

5.3. Nullity of Marriage

The jurisdiction of the Kenyan court to grant a nullity decree is, except for one unimportant
addition, identical to its jurisdiction to grant a divorce decree. Thus it has jurisdiction if
either party is domiciled in Kenya at the date when the proceedings are begun, or was
habitually resident in England throughout the period of a year ending with that date. The

45
additional ground is where either of the parties has died, and at death either was domiciled in
Kenya or had been habitually resident there for three years preceding.

Unlike the position in divorce cases, the governing law in nullity proceedings in the Kenyan
court may well be a foreign law. The governing law will be determined by the choice of law
rules which we examined in the chapter on marriage, for example the lex loci celebrationis if the
marriage is alleged to be formally invalid, or the laws of the parties’ ante nuptial domiciles if
the issue concerns prohibited degrees of relationship.

Under the common law, the grounds for recognition of foreign nullity decrees were, for the
most part, based on the theory of equivalence: a foreign decree should be recognised if the
English court in equivalent circumstances, mutatis mutandis, would itself have exercised
jurisdiction. In addition, there was a blanket ground that a decree should be recognised if
either party had a real and substantial connection with the country in question.

The conception of recognising a foreign nullity decree, though certainly accepted by the law,
is not without difficulties. If a foreign court annuls a marriage on the ground that it is void
(under whatever is the governing law according to the foreign court’s conflict rules), it may
be that the marriage is also void under Kenyan conflict. Then no difficulty arises from
recognising the decree, and duplication of proceedings in Kenya is avoided. However, it
may be that the marriage is valid under Kenyan conflict rules. It is well established that even
in such a case the foreign decree can be recognised. Thus in Merker v Merker [1963] P
283, a marriage was annulled by a decree of the German court on the ground that the
requisite formalities under German conflict rules had not been complied with. The decree
was recognised, even though the marriage was formally valid under English conflict rules.
Such recognition means that in effect, the foreign country’s choice of law rules have
superseded the Kenyan ones.

The reason for recognising the foreign decree in such a case is no doubt to ensure
uniformity of status. If the court of a country having a reasonable connection with one of
the parties has decreed that the marriage is invalid, the Kenyan court should not create a
limping marriage by insisting that it is valid. That is no doubt right, so far as the future is
concerned. If, however, the foreign court by its nullity decree has pronounced a marriage
void ab initio, then the effect of recognising it is to render the marriage void ab initio in

46
Kenya. Thus in Salvesen (Or Von Lorang) v Austrian Property Administrator [1927] AC
641, the effect of recognising a German decree declaring a marriage void ab initio, made 27
years after the marriage, was that the wife had not after all become an Austrian national
virtue of the marriage. If the marriage which is declared void ab initio by the foreign decree is
valid by Kenyan conflict rules, its recognition can retrospectively nullify rights which have
hitherto existed in Kenyan eyes.

5.4. Judicial Separation

The rules as to the Kenyan court’s jurisdiction to grant a decree of judicial separation
(entitling the parties to live apart but without dissolving the marriage), the law applicable by
the Kenyan court, and the recognition of foreign judicial separation decrees are the same as
for divorce.

5.5. Staying of Matrimonial Proceedings

As more than one country may have jurisdiction according to its own law to grant a divorce
or other matrimonial decree in respect of the same marriage, it may happen that matrimonial
proceedings between the same parties are pending in the English court and the court of
another country at the same time. For example, a wife who is domiciled in Kenya may bring
divorce proceedings in the Kenyan court, after the husband has started similar proceedings
in France, of which he is a citizen. Are the proceedings in both countries to continue, with
each plaintiff endeavouring to win the race to obtain his or her decree first, hoping to do
better in relation to financial provision or the custody of the children in his or her chosen
forum?

At common law the courts have power to stay proceedings in actions in personam on the
ground that the English court is not the appropriate forum (forum non conveniens). The
principles governing the exercise of this power have in recent years been reformulated by the
House of Lords. In the recent case of De Dampierre v De Dampierre (1987) 2 All E.R. 1,
the House of Lords has held that in applying the balance of fairness test for the staying of
matrimonial proceedings, the courts should have regard to the cases on forum non conveniens.
The effect of these is that if by reason of the factors connecting the case to the foreign
court, that court is clearly the more appropriate forum for the trial of the action, a stay will
47
ordinarily be granted unless there are circumstances by reason of which justice requires that
it not be granted.

In De Dampierre v De Dampierre the parties were both French. In 1979 they moved to
England, where the husband was involved in marketing cognac produced on his family
estate in France. A few years later, the wife set up a business in New York, where she
subsequently took their child, informing her husband that she did not intend to return. The
husband instituted divorce proceedings in France, and a few months later the wife instituted
such proceedings in England. The husband then applied to the English court for a stay of
the English proceedings. He subsequently returned to live in France. Reversing the decision
of the lower courts, the House of Lords held that a stay should be granted. The very strong
factors connecting the case with France meant that, prima facie, the French court was the
appropriate forum. The Court of Appeal had refused a stay on the ground that if in the
French proceedings it was found that the wife was exclusively responsible for the breakdown
of the marriage, she might be refused any financial relief, except for the maintenance of the
child, whereas such a finding in the English court would not have that effect. The House of
Lords, however, held that for the wife to be deprived of that advantage by the application of
French law could not be held a substantial injustice to her, in view of the parties’
connections with France. Thus the stay should be granted.

48
 Session 6
FAMILY LAW III: MATRIMONIAL PROPERTY

6.1. Introduction
Different countries have different rules about the effect which marriage has on the property
of spouses. Some countries have systems of community of property, under which, to varying
extents, the spouses jointly own the property which each separately owned before the
marriage, and which each acquires after the marriage. On the death of one of the spouses,
the survivor may be entitled to his or her share of the joint property by virtue of the joint
ownership rather than by way of succession. Other systems, including Kenyan law, provide
for the separate ownership of property by spouses. Whatever the regime, there is likely also
to be provision for marriage contracts, by which the parties make express arrangements for
their property after the marriage, perhaps altering the system which would otherwise prevail.
What law governs these matters?

6.2. Movable Property

The general rule is that the effect of the marriage on movable property is governed by the
law of the matrimonial domicile. At the time the rule was established, the wife necessarily
took the husband’s domicile on marriage, so the matrimonial domicile was naturally taken to
be the husband’s domicile at the date of the marriage. So if at the time of the marriage the
husband is domiciled in Kenya, where the regime is separation of property, while the wife is
domiciled in a country where community of property prevails, then the Kenyan system will
apply, and vice versa.

Suppose however that the intended matrimonial home is the wife’s country, and the spouses
settle there after the marriage. Is the regime of the husband’s former domicile still to apply,
even though the parties never live there as a married couple? The question whether there is
any exception to the rule that the law of the husband’s domicile at the date of the marriage
governs was raised in Re Edgerton’s Will Trusts [1956] Ch 593. At the time of the
marriage between a man domiciled in England and a woman domiciled in France, the

49
parties intended to settle in France, but they did not in fact move there until two years after
the marriage. On the husband’s death, the wife contended that the marriage had been in
community of property under French law, on the ground that that law governed as the law
of intended matrimonial home.

The judge held that the marriage was governed by English law as the law of the husband’s
domicile at the time of the marriage. He accepted however that in exceptional cases some
other law than that of the husband’s domicile might govern as the result of the agreement of
the parties, either express or inferred from their conduct. If the spouses set up their domicile
in a new country immediately after the marriage, an agreement that their proprietary rights
should be governed by the law of that country might be inferred, but would not necessarily
be so. That would depend on the circumstances. In the present case, although the parties
intended to settle in France, there was no evidence that they had intended the effects of the
marriage on their property to be governed by French law.

The question is therefore not simply whether the parties intended to settle in a country other
than the husband’s domicile, but whether it is shown that they actually intended their
proprietary rights to be governed by the law of that country. It will therefore be rare for the
law of the husband’s domicile to be displaced, unless the position has changed because a
married woman now has her own independent domicile. If the reason for the rule that in the
absence of contrary agreement the husband’s domicile at the date of the marriage governs
was that on the marriage that also became the wife’s domicile, and so would normally be
their domicile after the marriage (which might well be deduced from the phrase ‘matrimonial
domicile’), then the position should now be different, though there is no authority to that
effect. It is arguable that it the spouses settle immediately after the marriage in the country
in which the wife was domiciled at the date of the marriage, that should be the matrimonial
domicile, irrespective of whether the parties specifically intended that law to govern.

A controversial question is whether the proprietary regime fixed by the law of the
matrimonial domicile at the time of the marriage will change if the parties subsequently
change their domicile. Is the original regime mutable or immutable according to Kenyan
conflict?

50
If there is a marriage contract, there is of course no reason why it should be extinguished or
varied simply as the result of the change of domicile. What is the position however if there is
not marriage contract, but the parties subsequently become domiciled in a new country
whose regime is different from that which initially governed? Suppose for instance the
parties were married under a regime of community of property, but later move to a country
where the system is separation of property. Will their property thereafter be held in
community or separately.

In De Nicols v Curlier [1900] AC 21, the parties were both domiciled in France when they
married there. Because they did not make any antenuptial contract, they were deemed by
French law to have agreed that their marriage should be in community of property.
Subsequently they became domiciled in England, where the husband made a large fortune.
On his death, the wife claimed to be entitled to half the estate by virtue of the community of
property, so that the husband’s will could operate only on the other half. It was held that
the community of property continued despite the change of domicile.

While this case seems to suggest that the doctrine of immutability prevails, it has been
argued that this is not necessarily so, because the basis of the decision was that by French
law the parties were deemed to have agreed that their property should be held in community.
Just as an express marriage contract will continue, despite a change of domicile, unless and
until the parties cancel or alter it by a subsequent valid contract, so should an implied
contract, as in De Nicols v Curlier, continue despite change of domicile. Indeed the same
reasoning should arguably apply in a case where by the law which governed at the time of
the marriage the parties had a choice of regimes, including separation of property, whether
or not by that law the regime which operates in the absence of an express choice is regarded
as having been impliedly agreed. For the parties could have excluded it, and their joint
decision not to should not be capable of alteration except by their subsequent agreement, the
validity of which would be determined by the proper law of that subsequent agreement.
There seems no reason why their common change of domicile to a country having different
regime should be treated as such an agreement.

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6.3. Immovable Property
The question here is whether the law of the matrimonial domicile is displaced by the lex situs
as the governing law in relation to immovable property. So far a foreign immovables are
concerned, on the principle, as we have seen above, the governing law should be the lex
situs.17 As regards immovables in Kenya, however, there seems no reason why the law of the
matrimonial domicile should not govern, so long as the kinds of interests provided for by
that law are possible according to Kenyan law. Thus in Re De Nicols [1900] 2 Ch 410
which was concerned with the same marriage as De Nicols v Curlier referred to above, the
immovable property acquired by the husband in England was also held to be subject to
community of property under French law. However, immovable property outside the
matrimonial domicile will not be held in community unless it is shown that under the law of
the matrimonial domicile itself the community extends to foreign land. 19

52
 Session 7
CONTRACTS

7.1. Introduction
A dispute in contract which comes before the Kenyan court may have foreign elements: one
or both of the parties may be foreign, or the making or performance of the contract, or its
terms, may be connected with one or more foreign countries. For example, by a contract
made by telex between their two countries, a Kenyan businessman sells goods to a French
businessman, the goods to be delivered and the price to be paid in England. In an action for
breach of contract brought by the French buyer in the Kenyan court, a question arises on
which the rules of Kenya, French and English law are different. Which law is the court to
apply?

The general principle is that every international contract (i.e. a contract containing one or
more foreign elements) has a governing law, called the proper law of the contract, by
reference to which issues arising out of it are mainly, though not exclusively, decided.
Subject to certain limitations, the parties have the power to choose this proper of the
country with which the contract has its closes and most real connection.

7.2. Proper Law Chosen by the Parties

Subject to limits which we shall discuss below, the court will give effect to a choice of law by
the parties. Such a choice may be express or implied.

7.2.1. Express Choice

The choice is express when the contract contains a provision which specifies the law by
which it is to be governed, for example, ‘this contract shall be governed by the English law’
or ‘any dispute arising out of this contract shall be decided according to Kenyan law’. Parties
to an international contract are wise to include such a clause in their agreement, to avoid the
uncertainty which may otherwise arise in a ascertaining the proper law. Frequently however
they neglect to do so, or are unable to agree on which law it shall be.

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7.2.2. Implied Choice

When the contract contains no express choice of proper law then, according to the leading
formulation by Lord Simonds in Bonython v Commonwealth Of Australia [1951] AC
201, the proper law is ‘the system of law by reference to which the contract was made or that
with which the transaction has its closes and most real connection’. The first part of this
‘Bonython Formula’ refers to an implied choice by the parties, which is what we are
concerned with now. The second part, as we shall see later, comes into operation when
there is no choice by the parties, express or implied.

The system of law by reference to which the contract was made, i.e. an implied or tacit
choice of law, may be inferred by the court from the terms or form of the contract or the
surrounding circumstances.

7.3. Choice of Forum and Arbitration Clauses

The strongest indication of an implied choice of a governing law is a choice of forum clause
ie a clause by which the parties agree that the courts of a particular country shall have
jurisdiction, or a clause providing that any dispute arising from the contract shall be decided
by arbitration in a particular country. Arbitration clauses are common in commercial
contracts, and where the contract is an international one, it may stipulate the country in
which arbitration is to take place. A choice of forum or arbitration clause raises a strong
inference that the parties intended the law of the country in question to govern, on the basis
that they are most likely to have had in mind that the court or arbitrators would apply their
own law.

7.3.1. Forum of Contract

Another common indication of an implied choice is the use of terminology or concepts

peculiar to a particular law, often contained in a standard form drafted against the
background of that law. In such a case the inference may be well be drawn that the parties
intended the law in question to govern. For example, in Amin Rasheed Shipping Corpn
V Kuwait Insurance Co [1984] AC 50, a marine insurance policy was issued in Kuwait by
the defendants, a Kuwaiti insurance company, in respect of a ship owned by the plaintiffs, a

54
Liberian company carrying on business in Dubai. The policy was based on a Lloyd’s form set
out in a schedule to the English Marine Insurance Act 1906. The House of Lords held that
English law rather than Kuwait law was the proper law. In view of the English form of the
policy, which could only be interpreted in the light of the English law, the parties must have
intended English law to govern. This inference moreover was reinforced by the fact that at
the time the contract was made Kuwait did not have any law of marine insurance – another
reason for supposing that the parties must have had English law in mind.

7.3.2. The Validating Law

Where a contract, or a particular provision in a contract, is valid under one law with which
the contract is connected but invalid under another, the court may infer a tacit choice of the
validating law, on the basis that the parties must have intended their contract to be valid, not
void. For example, in Re Missouri Ss Co [1889] Ch D 321, the American plaintiff made a
contract in Massachusetts with English ship-owners for the carriage of cattle from Boston to
England. On the voyage the cattle were injured through the negligence of the crew. When
sued in the English court, the defendants relied on a clause in the contract exempting them
from liability in such circumstances. By the law of Massachusetts this exemption clause was
void, but it was valid by English law. It was held that English law was the proper law, for
the parties must have intended the provisions of their contract, including the exemption
clause, to be valid.

As with the indications of an implied choice previously considered the inference in favour of
the validating law is not conclusive. It may be outweighed by the fact that the contract is
objectively much more closely connected with a country by whose law it is invalid, 13 or there
may be factors pointing out strongly to an implied choice of the invalidating law. Thus in
Royal Exchange Assurance Corpn v Sjoforsakrings Akt Vega [1902] 2 KB 384, English
plaintiffs had made a contract of reinsurance in Sweden with Swedish defendants. The
contract was valid under Swedish law, but void under an English statute, yet the Court of
Appeal held that the parties must have intended English not Swedish law to govern, for the
contract was in the form of a Lloyd’s policy, and contained a clause under which the parties
agreed to the jurisdiction of the English courts.

55
The inference that the parties must have intended the validating law to govern is often a
fiction, for very like they did not know that the contract was void under the one law but the
other. It really amounts to a sensible presumption in favorem validatis – in favour of the
validity of an international contract. Unless there is good reason to the contrary, the court
will hold that the proper law is the law which validates, rather than that which invalidates,
the contract. The contract’s connections with the country whose law invalidates the contract
may, however, be so close as to require a decision that its law is the governing law, for its
important interests may be at stake. On this basis, it would be better to treat the validity of
the contract under the one law as relevant, not to the intention of the parties, but to the
question which arises in the absence of a choice by the parties: which is the country with
which the contract is mostly closely connected? That indeed has been the approach in two
cases which will be examined below (Sayers v International Drilling Co NV [1971] 3 AII
ER 163; Coast lines Ltd v Hudig and Veder Chartering NV [1972] 2 QB 34, [1972] I
AII ER 451,).

It is not only in relation to the inference in favour of the validating law that an implied
choice by the parties may seem a fiction. Some judges, differing from the more usual
approach, have also regarded such factors s a choice of forum clause and the form of the
contract as elements to be taken into account in determining the country of closest
connection rather than as indications of an implied intention. Perhaps this is more realistic
view for very often the parties will have given no thought at all to the governing law.
Whichever way one looks at it, the real significance of these factors is that they point to a
law that may giver greater efficacy to the contract. For it is more efficient if the court or
arbitrators use the law with which they are most familiar, and if the expense and difficulty of
proving foreign law are avoided. A contract it likely to work better, and disputes will more
easily be resolved, if it is governed by the law in whose terminology and concepts it is
couched. And of course a valid contract is more effective than an invalid one. As Langton J
said in The Adriatic (1931) P. 241 at 251, if one wants to divine the intentions of two
businessmen, one may take it that they intended to do what was most convenient’.

56
7.3.3. Other Factors

Other factors which have been relied upon as indication of an implied choice include the
fact that the contract is linked with another which is governed by a particular law, and the
fact that one party to the contract is a government, from which it may be inferred that its law
was intended to govern. The fact that both parties reside or carry on business in the same
country may be a strong indication of intention, as parties are likely to have their own law in
mind when they contract with compatriots.

Some of these indications are stronger than others, a choice of forum clause and the form of
the contract being the strongest; in combination they may strengthen, or if pointing in
different directions, weaken, or neutralise each other. None is conclusive, for the courts take
the view that where a contract is obviously most closely connected with one country, the
parties are unlikely to have tacitly intended that the law of some other country should govern
it.

In Compagnie D’armement Maritime Sa v Cie Tunisienne De Navigation SA [1971]

AC 572, a contract was made in Paris between the defendants, French shipowners, and the
plaintiffs, a Tunisian company, for the carriage of a number of consignments of oil between
Tunisian ports over a period of some months. The freight was payable in France. A clause
of the contract provided that any dispute should be settled by arbitrators in London. After
some voyages had been completed, the defendants repudiated the contract, the plaintiffs’
claim was brought before arbitrators in London. It had to be decided whether English or
French law governed, for their rules differed in relation to a claim for anticipatory breach. It
will be seen that apart from the arbitration clause, the contract had not connections at all
with England. All its connections were with France and Tunisia, and as French commercial
law prevailed in Tunisia, all the connections were with countries having French law. The
contract contained an ambiguous express choice of law clause, which a majority of the
House of Lords held to be choice of French law. The aspect of the decision that concerns
us here, however, is that all the members of the House of Lords agree that even if there were
no operative express choice of French law, an implied choice of English law could not be
inferred from the provision for arbitration in England. French law would still be the
governing law as the law of the country with which the contract was most closely connected.

57
The effect of this case is that where the parties have agreed to arbitration in a country, that
raises a strong, but not conclusive, inference in favour of the law of that country. Even the
contract has no connections at all with the country (apart) from the arbitration clause itself),
the inference in favour of this law is still likely to be drawn if there are substantial
connections with more than one other country. Thus in The Parouth [1982] 2 Lloyd’s Rep
351, the contract had connections, inter alia, with Panama, Greece and Florida, but none at
all with England. The Court of Appeal held that English law was the proper law on the
basis of a clause for arbitration in England. If however all other substantial elements relate
to one country (or, as in the Compagnie D’ Armement Case itself, two countries sharing
the same law), the inference may well not be drawn.

7.4. Limitations on the Power to Choose the Proper Law

Are there any limitations on the parties’ power to choose the proper law, whether expressly
or impliedly? One justification for the power is that it gives the parties the certainty of
knowing from the start what the governing law is. Another is that in domestic systems of
contract law the parties are largely free to choose the terms of their contract for themselves,
from which the power to choose the governing law follows as an obvious and reasonable
extension. Most domestic contract rules are optional, in the sense that their function is to
fill gaps in the contract, but giving way to the parties’ agreement to the contrary. Therefore,
why should not the parties to an international contract, instead of making express provision
for various matters, simply agree on which law shall be applied to fill the gaps?

7.4.1. Mandatory Rules

The difficulty is that some domestic contract rules are not optional, but mandatory, i.e.
applicable irrespective of any agreement of the parties to the contrary; for example, rules
which render contracts void on grounds of public policy, or invalidate provisions, such as
exemption clauses, in order to protect a weaker party. To make the question whether a
mandatory domestic rule applies to a particular international contract depend on whether the
law in question, or some other law, was chosen by the parties seem contradictory: it is
inconsistent with the nature of a mandatory rule that its applicability should depend on the
choice of the parties.

58
The main practical objection to allowing unrestricted choice of the governing law by the
parties is that it allows evasion of the mandatory rules of the country with which the contract
is most closely connected, whose purpose may be to protect the public interest, or to protect
the interests of a particular class, such as employees or consumers. Moreover, the choice
may effectively have been that of the stronger party. The converse situation is also arguably
undesirable: the contract is nullified by the law chosen by the parties, even though it is valid
by the law of the country with which the contract is most closely connected. Is it sensible to
use the law chosen by the parties to invalidate their contract, when they could not have
intended it to apply to that extent, for presumably they meant their contract to be valid?

As the law stands, however, the only general limitation on the parties’ choice is that it must
be ‘bona fide and legal’. The leading case is Vita Foods Products Inc v Unus Shipping Co
Ltd [1939] AC 277, [1939] I AII ER 513. It concerned a contract made in Newfoundland
between the defendants and the plaintiffs for the carriage of cargo on the defendants’ ship
from Newfoundland to New York. The contract contained a clause that it should be
governed by English law, but otherwise had no connections at all with England. One
question was whether the contract was void under the provisions of the Newfoundland
Carriage of Goods by Sea Act 1932. The Privy Council, on appeal from the court of Nova
Scotia, held that even if in the absence of a choice by the parties the law of Newfoundland
would have been the proper law, their choice of English law was effective so the
Newfoundland statute was not applicable. Lord Wright said,

“where there is an express statement by the parties of their intention to select

the law of the contract, it is difficult to see what qualifications are possible,
provided the intention expressed is bona fide and legal, and provided there is a
no reason for avoiding the choice on the ground of public policy.”

As the requirement that the choice be bona fide, it is widely believed that it will not be so if
the sole reason for choosing the law in question was to avoid invalidity under the law which
would govern in the absence of a choice. While there is no English decision to this effect,
there is an Australian one: in Golden Acres Ltd v Queensland Estates Pty Ltd [1969] Qd
LR 378, a contract, which would otherwise have been governed by the law of Queensland,
contained a clause selecting Hong Kong law as the governing law. The court held that this

59
choice was ineffective because bona fide, the purpose having been to evade the application
of a Queensland statute.

The requirement that the choice should be ‘legal’ is something of a mystery, unless it refers
to the question whether the parties did in law effectively agree on the supposed choice, a
problem which we shall return to. It has also been suggested that the requirement the choice
of law be ‘bona fide and legal’ imports some minimum degree of reasonableness, in the
sense that it must not be capricious, no good reason possibly existing for the chosen law to
govern.

7.4.2. The Law of the Country with Which the Contract is Most Closely
Connected

At one time, the courts took the view that the proper law was always to be attributed to the
intention of the parties. If there was no express choice, then an implied or imputed choice
had to be found. Various presumptions as to an unexpressed choice were developed, but
these have now largely been abandoned.

Today, if the parties have made no choice, express or implied, then the proper law is the law
of the country with which the contract has its closes and most real connection. (Whether
the connection is with the law or with the country will be considered below.) The court
relies on such elements as the place or places of the making and performance of the
contract, the links of the parties themselves with countries, the situs of any immovable
property which is the subject-matter of the contract, the country of registration of the ship
on which goods are to be carried, and the currency in which money due under the contract is
exposed.

How does the court decide with which country (or law) the connection is closest? And why
is it appropriate for that law to govern the contract? The answers to these questions are far
from clear. Sometimes, harking back to the older approach, the application of the law of the
country of closes connection is explained on the ground that it is the law which reasonable
parties would have chosen if they had though about the matter. But reasonable parties
would only choose it because it is the appropriate law to govern, and the question remains,
why is it appropriate? A law could be appropriate either in the interests of the parties to the

60
contract, or in the interests of the country whose law is to be applied. However, interests of
parties and of country may conflict, for it is in the interest of the parties for their contract to
be valid, while the interests of a country commonly only enter the picture when its policy
requires the contract, or a part of it, to be invalidated. Are the interests of parties or of
countries to prevail? No systematic answer to the question is to be found in the cases.

7.4.3. Centre of Gravity

If the emphasis is on the interests of the country, i.e. to ensure that its policy is applied when
appropriate, then the theory is advocated that;-

‘The proper law depends upon the elements which connect the contract with
two or more countries. They can conveniently be called its localising elements.
These may be numerous and diverse, and it is the country in which they are
most densely grouped that constitutes the centre of the contract and furnishes
the governing law.’

This ‘localisation’ or ‘centre of gravity’ approach, as it is sometimes called, can be justified on

the basis that it is the country in which the elements of the contract are most densely
grouped whose interests and policy are most likely to be affected by the contract. To some
extent this approach involves the mere enumeration of the links with the different countries,
but when there is no clear preponderance of connection with one country, the weight or
quality of the different elements must be assessed. Thus it is sometimes said that the place
of performance is the most important: ‘if any single factor carries more weight in these
matters than others it is the lex loci solutionis.’ The significance of the place of performance,
particularly when the whole performance on both sides is to be in the same country, can be
explained on the basis that a contract is most likely to impinge on the interests of a country
if it is to be performed in that country rather than elsewhere.

The fact that one or both parties belong to the country or that the subject-matter is situate
there, may also bring the contract within the ambit of its policy. The mere fact that the
contract was made there is much likely to do so.

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7.4.4. Convenience and Business Efficacy

If the emphasis is on the interests of the parties, rather than countries, then close connection
will be evaluated in terms of business efficacy and convenience, criteria which we have seen
also underlie an implied choice by the parties. While the importance of these factors has
often been stated, unfortunately the courts have not provided any general guidance as to
what connections with countries are the most significant in this respect. Here the places of
the making or performance of the contract seem of little importance, but the parties’ links
with countries – where they carry on business or reside – must be highly significant, for it
must normally be most convenient for a party that the governing law should be his own.
Where both parties belong to the same country, then the law of that country will usually be
the right one in relation to the interests of the parties. In an international contract, however,
they are likely to belong to different countries, and there is no easy answer then to the
question which party’s law is to be preferred.

While it would seem that the considerations we have been discussing must underlie the
concept of the country of closest connection, and its ascertainment, they are not explicitly
canvassed in the judgments. Where the connections with one country are clearly
predominant, there will be no difficulty, but when they are evenly balanced, it is often far
from clear why the judge finally concludes that those with one country are closer or more
significant than those with another. In such cases there may be great uncertainty for the
parties, as they cannot predict which law the court will hold to be the governing law.

A question which has been discussed in the cases is whether the search is for the country or
for the system of law with which the contract is most closely connected. While the reference
in the cases seems more often to be to the system of law, it has also been said that both are
relevant. The individual connections taken into account (for example) the place of
performance) are normally with the country (unlike the connections relevant to an implied
choice such as the form of the contract, which are with the system of the law). Whether
after weighing the individual connections the closeness is with the country or the system of
law perhaps depends on whether the court prefers a centre of gravity approach (country) or
convenience and efficacy approach (system of law).

Illustrative Cases

62
Two cases will serve as illustrations of how the courts determine the proper law when there
is not choice by the parties.

In Sayers v International Drilling Co [1971] 3 AII ER 163, the plaintiff, an Englishman,

entered into a contract of employment in England with a Dutch company, under which he
could be required to work anywhere except the United Kingdom, and in fact worked on an
oil rig off the Nigerian coast. The contract contained a clause exempting the company from
any liability for any injury which the plaintiff might suffer in the course of his employment.
The reason for this exemption clause was that the company, which maintained its own
voluntary compensation scheme for injured employees, wished to exclude legal liability
under any domestic system of law and substitute compensation under its own scheme. The
contract was in standard form, used for the company’s contracts with all its employees, who
were recruited from a number of different countries. The plaintiff, while working on the oil
rig was injured as the result of the negligence of a fellow employee. He sued for damages in
the English court, and the defendants of course relied on the exemption clause. By Dutch
law that clause was valid, but at that time section 1(3) of the English Law Reform (Personal
Injuries) Act 1948 rendered it void. Which law governed, English or Dutch?

While Lord Denning M R though that English law was the proper law of the contract, on
the ground that most of the connections were with England, Salmon and Stamp LJJ held
that Dutch law was the proper law. For them, convenience and efficacy were the decisive
considerations. Since the Dutch employers used the same form of contract for their
employees recruited from many different countries, business efficacy required that all the
contracts should be governed by the same law, which could only be that of the employers.
The efficacy of the contract, in another way also, would be assured if Dutch law governed,
for by that law the exemption clause was valid, while by English law it was not.

In Coast Lines Ltd v Hudig and Veder Chartering NV [1972] 2 QB 34, [1972] I AII ER
451, the plaintiffs, English shipowners, chartered their English ship to the defendants, a
Dutch company. The charter party was signed n Rotterdam, after negotiations by telephone
and telex between England and Rotterdam. It provided for the carriage of a cargo from
Rotterdam to a port in Ireland, and contained an exemption clause. The plaintiffs wished to
sue the defendants for breach of contract in England. The main issue would be whether or

63
not the exemption clause was valid. By English law it was valid, but by Dutch law void. The
plaintiffs applied for leave to serve notice of the writ on the defendants in the Netherlands
under RSC Order II rule (1)(r)(iii), contending that the contract was governed by English
law.

The factors connecting the contract with the Netherlands were that it was made in
Rotterdam (but this was not thought of great significance, because the negotiations had been
conducted between the two countries), the charterers were a Dutch company, and part of
the performance – the loading of the ship – was to take place there. The factors pointing to
English law were that the shipowners were English and the ship was registered in England.
Also the freight was expressed in sterling, but that was not regarded as important, nor was
the fact that the contract was written in the English language. No part of the performances
was to take place in England, for the cargo was to be discharged at an Irish port.

The decision that English law governed was based on two main grounds. Firstly, in the
words of Megaw L J,

‘… the fact that the subject-mater of the charterparty was an English ship and
that the whole of the transaction contemplated by the contract concerned the
activities of that English ship, in loading, carrying and discharging the cargo,
produces the result that the transaction, viewed as a whole and weighing all the
relevant factors, has a closer and more real connection with English law than the
law of the Netherlands.’

Secondly, the court relied on the fact that the exemption clause was valid under English law,
but not under Dutch law.

(iii) The EEC Convention on the Law Applicable to Contractual Obligations (The Rome
Convention)

In 1980, the negotiation of an EEC Convention on the Law Applicable to Contractual

Obligations was completed, and the Convention has now been signed by nearly all the
member states, including the United Kingdom, which has not yet ratified it however. It is
not known whether and when it will come into force. Its aim is to harmonise the contract
choice of law rules of the member states, so that, as far as possible, the same domestic law

64
will be applied, no matter in which country within the EEC the proceedings are brought.
Such uniformity would prevent the inequity which can result from ‘forum shopping’ – the
plaintiff’s ability to choose to sue in the country whose choice of law rules will give him the
best chance of winning, or the best remedy.

Like the existing English law, the Convention allows the parties the power, expressly or
impliedly, to choose the proper law. The only general limitation on this power is that where
‘all the elements relevant to the situation at the time of the choice are connected with one
country only’, then, despite the choice by the parties of the law of some other country, the
mandatory rules of the former country must be applied. So if, for instance, in a contract
entirely connected with France there is a provision for arbitration in England, accompanied
by a choice of English law, the arbitrators, while applying English law generally, would
nevertheless apply any relevant French invalidating or other mandatory rule.

This limitation would replace the ‘bona fide and legal’ limitation of the Vita Food Case. It
has the advantages that its operation does not depend on the parties’ motives, it does not
override their choice in relation to non-mandatory rules, and its meaning is more certain.
While it cannot prevent the evasion of the mandatory rules of a country with which the
connections, although the closest, are not exclusive, as the ‘bona fide and legal’ qualification
could do, special provision in this regard is made for consumer and employment contracts a
will be seen below.

In the absence of a choice by the parties the contract is to be governed by the law of the
country with which it is most closely connected. There are presumptions as to which this is,
the main one being that the governing law is the law of the country in which the party who is
to render the performance that is characteristic of the contract has his place of business (or
habitual residence, if the contract is not made in the course of his business). Which is the
characteristic performance of a contract? In the ordinary bilateral contract under which one
party is to pay money in return for the provision of the goods or a service, the characteristic
performance is the provision of the goods or service, rather than the payment of the price.
So in a contract for the sale of goods, the seller’s law would be the governing law; in a
contract of insurance the law of the insurer; in a banking contract the law of the banker; a
building contract, the law of the builder.

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It will be seen that in selecting the law of one of the parties (rather than, say, the law of the
country of performance), this presumption gives priority to the convenience of the parties.
The choice of law of the party who is to provide the goods or service, rather than the one
who is to pay the price, can be justified by the likelihood that his

Performance is the more active and complex, so that he is the more likely to have to consult
the law during the course of performance. He is also the one whose business efficiency may
well require that all his contracts, in standard form, entered into with parties from different
countries, should be governed by the same law. Another advantage of the presumption (so
long as it is in fact applied, and it is clear which is the characteristic performance) is that it
will promote certainty. It will be clear from the start, even without a choice of law clause,
which is the governing law, instead of having to predict which country a court will decide is
the one of closest connection, after a detailed evaluation, on uncertain criteria, of the various
elements.

The presumption does not apply to contracts the subject-matter of which is a right in, or to
use, immovable property (when the presumption is in favour of the lex situs), nor to
contracts for the carriage of goods. Nor does the presumption apply if it appears from the
circumstances as a whole that the contract is more closely connected with another country
than that of the party rendering the characteristic performance.

Special provision is made for consumer contracts having a specified connection with the
country in which the consumer is habitually resident. In the absence of a choice by the
parties, the proper law is the law of the consumer’s habitual residence (rather than that of the
supplier of the goods or service), giving him the advantage of ready access to legal advice on
the law. Even if the parties have chosen a different law to govern, the consumer is
nevertheless entitled to rely on any mandatory provisions of his own law. In the case of an
employment contract, the governing law, when it has not been chosen by the parties, is
normally the law of the country in which the employee habitually carries on his work, and
again, if the parties choose a different law, the employee is still entitled to rely on the
mandatory provisions of the former law.

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 Session 8
TORTS

8.1. Introduction
Subject to an ill-defined exception, a defendant is liable in tort only to the extent that he is
liable by both the law of the country where the alleged tort was committed (the lex loci delicti)
and by English law (the lex fori). To understand how the law reached its present state, we
must examine some earlier cases and also glance at the Scottish and American law, before
coming on to the leading case of Chaplin v Boys [1971] AC 356, [1969] 2 AII ER 1085.

8.2. The Rule in Phillips v. Eyre

In The Halley [1868] LR 2 PC 193, a collision occurred in Belgian territorial waters between
a ship owned by Norwegian plaintiffs and one owned by English defendants. The collision
was due to the negligence of a compulsory pilot on the defendants’ ship. The plaintiff sued
the defendants for damages in the English court. By Belgian law a shipowner was
vicariously liable for the negligence of a compulsory pilot, but that was not so by English law
at that time. The Court of Appeal held that the defendants were not liable because they
were not liable by English law. So the rule was established that, whatever the foreign
elements in the case may be, a defendant is not liable in tort in an English court unless his
conduct was actionable by English law.

In Phillips v Eyre [1870] LR 6 QB, the defendant was the Governor of Jamaica. In the
course of putting down a rebellion there, he arrested and imprisoned the plaintiff. These
actions would have amounted to battery and false imprisonment under Jamaican law, as well
as English law, but for the fact that the Jamaican legislature subsequently passed an Act of
Indemnity which had the effect of making the defendant’s acts lawful retrospectively. The
plaintiff’s action for damages in the English court failed. Here, it will be seen, the rule in
The Halley was satisfied, for the defendant was liable under English law. He was not
however liableunder the context the lex loci delicti. Willes J said,4 ‘the civil liability arising out
of a wrong derives its birth from the law of the place, and its character is determined by that

67
law’. While this seems to indicate that liability in tort is governed by the lex loci delicti, the
judge had to take into account the rule in The Halley, so he formulated the following
proposition, which has come to be known a the rule in Phillips v Eyre:

‘As a general rule, in order to found a suit in England for a wrong alleged to
have been committed, abroad, two conditions must be fulfilled. First, the wrong
must be of such a character that it would have been actionable if committed in
England. Secondly, the act must not have been justified by the law of the place
where it was done.’

So if the plaintiff is to succeed, the wrong must be actionable under lex fori, (the first branch of
Phillips v Eyre), and the act must not have been justifiable by the lex loci delicti (the second
branch of Phillips v Eyre). Is there any difference in meaning between actionable (as the
conduct must be by English law) and not justifiable (as it must be by the lex loci delicti)? In
Machado v Fontes [1897] 2 QB 231 (which we shall see below has now been overruled),
the Court of Appeal held that there was a difference. For the second branch of Phillips v
Eyre to be satisfied it was not necessary for the defendant to be civilly liable to the plaintiff
under the lex loci delicti, as he must be by English law under the first branch; it was enough
that the conduct should have been in some sense wrongful by the lex loci delicti.

The facts in Machado v Fontes were that the defendant had published in Brazil a pamphlet
which the plaintiff claimed was defamatory of him. The plaintiff sued for damages for libel
in the English court. By Brazillian law, although the defendant’s conduct would render him
liable to conviction and punishment for criminal offence, there was no civil liability for
damages for defamation. The defendant argued that accordingly he could not be held liable
for damages in England. The Court of Appeal held that this defence was bad in law, for
even the defendant’s conduct was not actionable by Brazilian law, nevertheless it was not
justifiable by that law if it was a criminal offence.

If all that was necessary under the second branch of Phillips v Eyre was that the conduct
should in some sense be legally wrongful by the lex loci delicti, it followed that liability was
primarily governed by English law. So long as the conduct was not justifiable by the lex loci
delicti, then all issues arising in the case as to liability or defences were for English law to

68
decide. They could hardly be for the lex loci delicti to decide if civil liability by that law was
not even necessary.

An illustration of the operation of Machado v Fontes is the Canadian case of McLean v

Pettigrew [1945] 2 DLR 65. The plaintiff and defendant were both residents of Quebec.
They paid a visit to Ontario, the plaintiff being a gratuitous passenger in the defendant’s car.
In Ontario, the plaintiff was injured in a collision caused by the defendant’s careless driving.
The plaintiff brought his action for damages in the Quebec court. By Quebec law, the
defendant was liable to the plaintiff, so the first branch of Phillips v Eyre, requiring
actionability by the lex fori, was satisfied. An Ontario statute, however, exempted the owner
or driver of a car from liability for injury negligently caused to a gratuitous passenger.
Another Ontario statute made it a criminal offence to drive a car without due care and
attention. The defendant was liable in tort by Ontario law, his conduct was not justifiable
under that law, for, on the court’s finding, he had committed the criminal offence under
Ontario law of driving without due care and attention. Under Phillips v Eyre, if the tort is
committed in England, then even though parties are foreigners there is no room for the
application of foreign law, for English law is both the lex fori and the lex loci delicti.

8.3. Double Actionability: Scottish Law

While the Scottish courts adopted the rule in Phillips v Eyre, they rejected the
interpretation of it in Machado v Fontes. Instead they applied a rule of double
actionability, i.e. the defendant is liable to the plaintiff only to the extent that he is liable
under both the lex loci delicti and the lex fori. Moreover, not only must the defendant be civilly
liable to the plaintiff under both laws, he must also be so liable in respect of the particular
loss claimed by the plaintiff.

In Mackinnon v Iberia Shipping Co [1954] 2 Lloyd’s Rep 372, the Scottish plaintiff was
employed as an engineer on a ship owned by a Scottish firm. While the ship was in the
territorial waters of Dominica, the plaintiff was injured as the result of the negligence of
fellow employees. He sued his employers in the Scottish court, claiming damages for pain
and suffering. By Scottish law such damage was recoverable. By the law of Dominica,
however, although the defendants were liable to the plaintiff in tort, compensation was

69
recoverable only for actual pecuniary loss, and not for pain and suffering. The claim failed
because the particular loss was not recoverable by the lex loci delicti.

Under double actionability, not only must each loss claimed be recoverable under each law,
but a defence under either law will bar the claim. For example, if contributory negligence is
a complete defence under the lex loci delicti, the plaintiff will lose, even if the lex fori provides
for apportionment.

8.4. The Proper Law and American Approaches

The idea that the lex loci delicti should normally be the applicable law but that some law might
be more appropriate in particular cases, led to the suggestion that issues in tort should be
governed by the proper law of the tort, i.e. the law of the country with which the tort is most
closely connected, just as issued in contract are governed by the proper law of the contract.

Flexible approaches to choice of law for tort have been widely adopted in the United States.
Originally the rule in most states was simply that the lex loci delicti governed, but it came to be
accepted that the automatic application of that law in all circumstances could lead to
inappropriate decisions. The general principle adopted by the Second Restatement of the
Conflict of Laws (s 145) is that:

‘The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, as to that issue, has the most
significant relationship to the occurrence and the parties.’

It will be seen that the reference is not to a proper law which will necessarily govern all
issues which may arise from a tort; rather, t he significant relationship must be assessed with
regard to the particular issue. For example, the same law should not necessarily be
applicable both to the question whether the defendant’s conduct was wrongful and the
question whether the plaintiff is entitled to recover damages for a particular kind of loss.

As with contract, the difficulty with a proper law or other flexible approach is to identify the
criteria which make one law more appropriate than another in given circumstances. While
there are many different views to be found among American lawyers, a common emphasis is
on the need to identify the purpose or policy of the relevant rules of the possibly applicable

70
laws in deciding which of them should be applied. If on analysis it is found that the facts of
the particular case do not come within the purpose or policy of the rule of one country, then
there is no good reason to apply it; rather apply the rule of another country within whose
policy the case does fall. American courts and writers often speak in this context in terms of
the ‘interests’ of states or governments; if the case comes within the policy of the relevant
rule of a particular state, then that state has an ‘interest’ in its rule being applied.

A look a few well-known cases will give an impression of American approaches. The facts
of Babcock v Jackson 12 NY 2d 473 [1963], were very similar to those in the Canadian
case of Mclean v Pettigrew, mentioned above. The plaintiff and defendant were both
residents of the State of New York. They went on a trip to Ontario together in the
defendant’s car, and while there, the plaintiff was injured as the result of the defendant’s
negligent driving. The plaintiff sued in the New York court. Under Ontario law the
defendant was not liable, because of Ontario’s ‘guest statute,’ under which a driver was not
liable for injury negligently caused to a gratuitous passenger. The defendant was however
liable under the law of New York, which has no such statute.

The New York Court of Appeals rejected the traditional US approach that liability in tort is
necessarily governed by the lex loci delicti, here Ontario law. It held instead that the issue
whether the driver was liable to his gratuitous passenger should be decided by the law of that
country which, in relation to that issue, had the most significant relationship with the events
and parties. Which country that was depended on the purposes of the relevant rules of
Ontario and New York. What was the purpose of the Ontario guest statute? One purpose
was to prevent the fraudulent assertion of claims by the passengers, in collusion with drivers,
against insurance companies. Another purpose was to protect drivers of cars from unfair
liability to passengers to whom they had generously given a free lift. Which insurance
companies and which drivers, then, would the Ontario statute have been concerned to
protect? Those from Ontario, not those from New York, as the driver, and presumably his
insurer, were in this case.

‘Whether New York defendants are imposed upon or their insurers defrauded b
a New York plaintiff is scarcely a valid legislative concern of Ontario simply

71
 because the accident occurred there, any more than so than if the accident had
happened in some other jurisdiction.’

If therefore the case did not come within the policy of the Ontario rule, it did come within
that of the New York rule. Its purpose was to ensure that even gratuitous passengers were
fully compensated, and here the gratuitous passenger, as well as the driver, was New York
residents. So the New York rule fell to be applied, and the claim succeeded. The court was
at pains to stress that if the issue had been a different one, then Ontario might have had the
most significant relationship; that would have been so, for example, if the issue had been the
manner in which the defendant had been driving.

In Reich v Purcell 432 P 2d 727 [1967], the plaintiff and his wife lived in Ohio. When
driving her car through Missouri, the plaintiff’s wife was killed in a collision through the
negligence of the defendant, who lived in California. The plaintiff sued in the California
court for damages for the wrongful death of his wife. By the laws of Ohio, Missouri and
California, the defendant was liable for such damages. However, a Missouri statute limited
the damages recoverable for wrongful death to $25,000. Under Ohio and Californian law
the plaintiff was entitled to his full loss, which the court assessed at $55,000. The judge held
that Ohio law should be applied. The purpose of the statute of Missouri, where the tort was
committed, was to protect the defendants, ‘to avoid the imposition of excessive financial
burdens on them.’ However, Missouri’s concern would be for Missouri defendants, not one
from California, so Missouri had no interest in its rule being applied. On the other hand,
Ohio did have an interest in its rule being applied, for the purpose of that rule was to secure
full compensation for the surviving spouses of people wrongful killed, and here the deceased
and her husband belonged to Ohio. The purpose of the Californian rule was the same as
that of Ohio; California therefore would have no concern for its rule to be applied, for the
deceased and survivor were not Californians. So the plaintiff was awarded full damages
under the law of Ohio, which was the only country which had an interest.

In Babcock v Jackson and Reich v Purcell no doubt the right result was reached on
grounds which at first sight may seem plausible. In each the court was able to hold that only
one country had any interest in its rule being applied. What however is to be done if it turns
out that in Reich v Purcell the defendant had been a resident of Missouri. One possibility

72
would be to say that if one of the countries having an interest is the court’s own country,
then the court should necessarily prefer its own policy? Should the court apply the law of the
state whose concern is the greater, or that whose interest will be the more greatly impaired if
its rule is not applied, or the lex loci delicti or what? Moreover there may be the greatest
difficulty in deciding what the policy or purpose of a given rule is.

Consider the converse of Babcock v Jackson: driver and gratuitous passenger from
Ontario are visiting New York, where the passenger is injured by the driver’s negligence.
The passenger sues in New York. Ontario would have an interest in its rule, that the
gratuitous passenger is entitled to compensation, being applied? If the purpose of the rule is
regarded as being only to secure compensation by an Ontario driver. But perhaps it is also a
purpose of the New York rule of liability to deter negligent driving. Then of course New
York will have an interest in its rule being applied to an accident in New York, whatever the
provenance of the parties. Then both countries will have an interest. On such facts the New
York court in Krell v Henderson 270 NYS 2d 552 [1960] applied New York law.

The opposite situation is where neither country is found to have an interest: the case comes
within the purpose of neither country’s rule. That would be the position if a New York
driver gave a gratuitous lift to an Ontario passenger in Ontario, if we assume that the
purposes of the Ontario statute are to protect drivers and insurers, and of the New York rule
to secure compensation for injured passengers and to promote safe driving in New York. In
such a case, the New York court in Neumeier v Kuehner 286 NE 2d 454 [1972], applied
Ontario law as the lex loci delicti.

The odd conclusion in such a case, that the facts will fall within the purpose of neither
country’s rule, suggests the possibility that his whole way of looking at things may be
misconceived. Apart from the purpose which a rule may have of protecting or advancing the
public interest, for example by deterring dangerous conduct, is not the purpose of tort rules
to achieve justice between the individuals involved in a dispute? To describe the purpose of
a rule which, for example, limits the amount of damages recoverable as being to protect the
defendant, or of a rule which imposes no such limit as protecting the plaintiff, is only a
manner of speaking; such rules simply fix the balance between the parties in particular
circumstances in a particular way. On that basis, the case will of course come within the

73
purpose of the relevant rule of every country. That is precisely why choice of law rules, using
the criteria of justice of the conflict of laws, are needed to determine which country’s
domestic standards of justice are to be applied.

Chaplin v. Boys. We must return now to English law which, at the point we left it, was
based on Phillips v Eyre, as interpreted by Machado v Fontes: English law governs, with
the proviso that the conduct must not be justifiable by the lex loci delicti.

In Chaplin v Boys, the plaintiff and defendant were both members of the British armed
forces, resident in England, but temporarily stationed in Malta. There the plaintiff was
injured in a road accident as the result of the defendant’s negligence. The action was
brought in the English court. Under Maltese as well as English law the defendant was liable
to plaintiff. Under Maltese law, however, the plaintiff was entitled to recover only pecuniary
loss, which amounted to a mere £53. By English law, he was entitled also to damages for
non-pecuniary loss, in the form of pain and suffering and loss of amenities, which the trial
judge assessed at £2,250. Under the law as previously understood the plaintiff would
recover the non-pecuniary, as well as the pecuniary, loss under English law, for the
defendant’s conduct was plainly not justifiable under Maltese law. That was the basis on
which the case was decided by the trial judge, bound as he was by Machado v Fontes. On
appeal, two members of the Court of Appeal, and all five members of the House of Lords,
concurred in that result, but for so many different reasons that it is scarcely possible to find a
ratio decidendi for the case.

In the House of Lords, all the members agreed that the normal choice of law rule for tort is
the rule in Phillips v Eyre, although we shall see, two members held that the rule is subject
to proper law type exception. While they all accepted the first branch of Phillips v Eyre,
there was disagreement about the meaning of the second branch. A minority (Lords Pearce
and Donovan) thought that Machado v Fontes was right; on that basis of course, the
plaintiff would recover his non-pecuniary loss under English law. The majority, however,
thought that actionability under the lex loci delicti should be required, i.e. Machado v Fontes
should be overruled. That would mean in effect a rule of double actionability, as in Scotland.
How that would decide the case would depend on another issue: was the recoverability of
non-pecuniary loss a question of mere quantification, to be decided by English law as a

74
matter of procedure, even if substantive questions were subject to double actionability? Or
was it a matter of substance, so that for the plaintiff to succeed, non-pecuniary loss must be
recoverable by the lex loci delicti as well as by English law? One of the three judges in favour
of double actionability (Lord Guest) took the former view. The other two (Lords
Wilberforce and Hodson), and one of the judges who supported Machado v Fontes (Lord
Pearce), held that the question was one of substance.

So far, that would mean for Lords Wilberforce and Hodson that the claim for non-pecuniary
loss would fail (as in the Scottish case of Mackinnon v Iberian Shipping Co), because it
was not recoverable by Maltese law. These two judges however held that the rule in Phillips
v Eyre must be subject to an exception in order to avoid unjust decisions in cases like the
present one. The exception they envisaged was on the lines of s 145 of the American
Second Restatement (‘the rights and liabilities of the parties with respect to an issue in tort
are determined by the local law of the state which, as to that issue, has the most significant
relationship to the occurrence and the parties’). So in their view, the proper law approach
was to be admitted, not as the ordinary rule, but as an exception to an ordinary rule of
double actionability, to be used for particular issues in appropriate cases. The present case,
where the issue was whether a particular kind of loss was recoverable, and that loss was
recoverable under the law of England, to which both parties belonged, but not by the lex loci
delicti, was such a case. Accordingly the plaintiff should be entitled to recover for that loss.

It will be seen how difficult it is to extract a ratio decidendi from these various judgments. A
majority in favour of double actionability as the normal rule; a (different) majority held that
the recoverability of non-pecuniary loss was a matter of substance, not procedure. Yet to
combine these two majority views produces the wrong answer for Chaplin v Boys itself.
The right answer only emerges if double actionability is made subject to a proper law type
exception, but only a minority of the judges were in favour of that.

Whatever may technically be the ratio of Chaplin v Boys, the courts seem inclined to regard
the speech of Lord Wilberforce as setting out the law to be followed. If that is the position,
then the basic rule requires:

75
 ‘actionability as a tort according to English law, subject to the condition that
civil liability in respect of the relevant claim exists as between the actual parties
under the law of the foreign country where the act was done’.

This rule of double actionability is subject to a proper law of flexibility exception in relation
to a particular issue, when appropriate. The exception apart, a defendant can rely on a
defence (such as contributory negligence) which is available under either law. To succeed the
plaintiff must be entitled (for instance as a dependant, or legal representative, of a deceased
person, or as a gratuitous passenger, or as the spouse of the defendant) under both laws.
Each kind of loss claimed must be recoverable by both laws.

The areas of uncertainty are: when will the exception be invoked, and, if it is invoked, what
are the criteria for deciding which law to apply? In Chaplin v Boys, Lord Wilberforce said
‘the general rule must apply unless clear and satisfying grounds are shown why it should be
departed from’, and

‘I think the necessary flexibility can be obtained … through segregation of the

relevant issue and consideration whether, in relation to that issue, the relevant
foreign rule ought, as a matter of policy ... to be applied. For this purpose it is
necessary to identify the policy of the rule, to inquire to what situations, with
what contacts, it was intended to apply; whether or not to apply it, in the
circumstances of the instant case, would serve any interest which the rule was
devised to meet.’

The search then is for the law appropriate to the particular issue; so different laws could be
applicable to different issues in the same case. Moreover, the approach favoured by Lord
Wilberforce seems to be of the American interests analysis type. It can perhaps be gleaned
from his speech that it is only if, on such an approach, it is found that only one country’s law
has an interest to be applied, that the general rule should be departed from. So if in Chaplin
v Boys, both, or only one of the parties had been Maltese, the claim for non-pecuniary loss
would have been rejected on the application of Maltese.

There have been few English cases since Chaplin v Boys. In Church Of Scientology Of
California v Metropolitan Police Comr [1976] 120 Sol Jo 690, which came before the
Court of Appeal on the interlocutory question whether a cause of action existed on the facts
76
alleged. English plaintiffs were suing an English defendant, the Commissioner of the
Metropolitan Police, claiming that he was vicariously liable for the action of members of his
force in publishing, in Germany, to German police officers, a statement defamatory of the
plaintiffs. It was argued that since by German law there was no vicarious liability in such
circumstances the action must fail. The Court of Appeal held however that the case must go
for trial, because it was at least arguable that under the principles laid down in Chaplin v
Boys, the case came within the exception to the general rule of double actionability, on the
ground that the parties’ closest relationship was with England, and therefore English law
alone should be applied.

More recently, in Coupland v Arabian Gulf Petroleum Co [1983] 2 AII ER 434, Hodgson
J said that it had been established by the Church Of Scientology case that the rule in
Chaplin v Boys was one of double actionability, subject to a limited exception. For the
exception to operate:

‘one has to find an issue, which is decided differently by the two jurisprudences,
which is capable of being segregated and which can then be decided by an
application of what, in effect by the back door, is the proper law of the tort.’

In an Australian case also, Chaplin v Boys has been treated as laying down an exception to
Phillips v Eyre. In Corcoran v Corcoran, [1974] VR 164 a wife was injured by her
husband’s negligent driving. They were domiciled in Victoria, but the accident happened in
New South Wales. The latter state retained the common law rule of interspousal immunity,
but by a statute of Victoria, where the action was brought, one spouse was entitled to sue the
other in tort in such circumstances. The judge, following Chaplin v Boys, said that the
effect of that case was that the normal rule was double actionability, but this was subject to
the qualification that ‘in a particular case where there are special circumstances warranting it
in the interest of justice the rule should be modified or departed from’. Here, where both
parties belonged to Victoria, the interests of that state were more clearly involved than any
interests of New South Wales. ‘The interests of New South Wales in maintaining
interspousal immunity primarily concern husbands and wives who are connected with New
South Wales.’ So Victoria law alone was applied, and the action succeeded.

77
Whether, under the exception, a third law, other than the lex loci delicti and English law, may
be the one applicable, has not been decided, but the reasoning behind the exception would
make that perfectly impossible. Suppose for instance both parties in Chaplin v Boys had
been Scottish residents; would not the right solution have been to allow the plaintiff to
recover non-pecuniary loss under Scottish law?

An examination of the cases generally, including American ones, suggests that the lex loci
delicti is unlikely to be displaced unless both parties are foreigners to the country where the
tort is committed, and come from the same country, or, if they belong to different countries,
the relevant rules of their countries are the same on the issue in question. The latter
situation is exemplified by Reich v Purcell, mentioned above, or, as a hypothetical case, by
Chaplin v Boys with the difference that, although the defendant is English, the plaintiff is
not but comes from another country under whose law also the non-pecuniary loss is
recoverable. Of course it does not follow that the lex loci delicti will necessarily be displaced
in such circumstances, whatever the issue. It is scarcely possible to discuss the
circumstances in which the lex fori should be displaced, as the reasons for its applicability in
the first place are so obscure. We shall return to these problems at the end of the chapter.

8.5. Reform of the Law

The English Law Commission is reviewing the choice of law rules in tort and has published
a working paper containing provisional proposals for the reform of the law. After
considering and rejecting the desirability of adopting governmental interest analysis or some
other American approach, it puts forward two alternative models as possible replacements of
the present law.

Under MODEL I, the general rule would be that the law of the country where the tort
occurred would govern, but this would be subject to a proper law exception: the lex loci delicti
could be displaced, and the law of the country with which the occurrence and the parties
had, at the time of occurrence, the closest and most real connection applied instead. This
exception would however be subject to the threshold requirement that the occurrence and
the parties must have an insignificant connection with the country where the tort occurred,
and a substantial connection with the other country.

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The broad effect of this proposals would be to substitute for the existing normal rule of
double actionability, subject to a proper law exception, a normal rule that the lex loci delicti
alone governs, subject to such an exception. This abolition of the first branch of Phillips v
Eyre (the requirement of actionability by English law) is likely to be widely welcomed.
However, in the interests of certainty, a more precise threshold requirement for the
displacement of the normal rule would be desirable, and if the proper law exception is to
have any real content, the courts would have to develop criteria for judging connections
asmore or less ‘close’ or ‘real’. As suggested above, the lex loci delicti will seldom if ever be
inappropriate, whether from the aspect of justice between the parties or of the public
interests of countries, unless the parties belong to the same country (not being the country
where the tort was committed), or if they belong to different countries, the laws of those
countries concur on the issue in question. A threshold requirement on such lines would
provide greater uncertainty that the one proposed. It is really only when such a threshold
requirement is satisfied that the difficult problems of choice of law in tort arise: to decide
whether the lex loci delicti or the law of the parties’ law is that they will all both receive justice
according to their own standards. However, in some cases, usually involving intentional
conduct on the defendant’s part, justice may be thought to require that the defendant should
be able to rely on a reasonable expectation of non-liability under the law of the country
where he acted. For example, in a defamation case the defendant may have published his
statement in reliance of the communication being privileged under the lex loci delicti. In other
cases, the relevant rules of the lex loci delicti may be of fundamental public importance (for
example rules relating to false imprisonment), and where that is shown to be the case it may
well be appropriate for those rules to be applied rather than those of the parties’ countries.
Any sort of ‘closest connection’ or other proper law formula needs such (or different)
guidelines, developed by the courts if not contained in the reforming statute.

MODEL 2 of the Law Commission’s working paper has the proper law as the general rule:
the applicable law is that of the country with which the occurrence and the parties had, at the
time of the occurrence, the closest and most real connection. But the result is not very
different from Model I, because it is presumed that the country with which the occurrence
and the parties had the closest and most real connection is that where the tort occurred, and
the presumption can only be departed from if the same threshold requirement as in Model I
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is satisfied. As the vagueness of a proper law approach seems to a regrettable necessity for a
minority of cases rather than a positive virtue, Model I would seem to be the better of the
two approaches.

The Working Paper also makes provisional recommendations as to which should be

regarded as the law of the country where the tort occurred in multi-state cases: in cases of
personal injury or damage to property, the country where the injury was suffered; in cases of
defamation, the country of publication; in other cases, the country where the most
significant elements in the train of events occurred. A possible qualification to such an
approach was suggested above.

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 Session 9
SUCCESSION

9.1. Introduction
Our concern in this section is with the law governing the distribution of the estate of a
deceased person among the beneficiaries, either under a will or on intestacy. We shall not be
dealing with the administration of the estate, which, as it concerns procedure, is governed by
Kenyan law if the estate is being administered in Kenya.

The Kenyan court will exercise jurisdiction to determine the succession to the property of a
deceased person if it has authorised some person to act as executor of the estate, by making
a grant of representation.1 Normally the deceased will have left property in Kenya, but a
grant of representation may be made if the testator died domiciled in Kenya, though not
leaving property there. Our discussion of the choice of law rules for succession will deal
separately with testamentary and intestate succession, and within each of these categories we
shall note differences between the rules relating to movable and immovable property.

9.2. Wills

9.2.1. Movables

Like a contract, a will expresses the intentions of the person who makes it, and the different
issues which may arise are similar to those we considered in the chapter on contracts. One
difference, however, is that a will is made at one time but takes effect at another, so
connecting factors at two different times may be relevant. The governing law for a contract
is the law of the country with which it is most closely connected, unless the parties expressly
or impliedly intend a different law. The country with which a will is most closely connected
is the domicile of the testator, for that is the country to which the beneficiaries as well as the
testator are likely to belong, and in which all or some of his estate is likely to be situate. As
we shall see, for some issues it is the domicile at the death that counts, for others that at the

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date of making the will. As for the testator intending a different law, this is effective
(logically, but unlike contract) only in respect of non-mandatory rules of succession.

Issues;

9.2.1.1. Essential Validity

Rules of essential validity are mandatory rules, which for example prohibit certain kinds of
gift, or provide that a certain proportion of an estate must go to particular relatives to the
testator. The appropriate law to govern here is that of the country whose interests are most
likely to be affected by the disposition (where the invalidating rule is designed in the public
interest), or the country to which the testator (and thus normally his relatives) belongs, when
the purpose is to protect relatives against disinheritance. In either case, this law is normally
the law of the testator’s domicile at the date of his death. Thus the question whether a will is
invalid to the extent that the testator did not leave property to his children is governed by
the law of the testator’s domicile at his death.- Re Annesley [1926] Ch 692, Re Ross (1930)
1 Ch. 377

9.2.1.2. Construction and Effect

Here, we are concerned firstly with questions of interpretation – what did the testator mean
by the words which he used (for example the phrase ‘next-of-kin’?) Secondly, there are
questions as to the effect of a will when an event occurs, such as the death of a legatee, for
which no provision is made in the will.

In such cases, the domestic rules of the possibility applicable laws are non-mandatory rules,
i.e. they are not rules which override the testator’s intention; rather they help to ascertain his
intention when it is obscure, or they fill gaps in his expressed intention. So the governing
law here is the law intended by the testator. This will normally be presumed to be the law of
the testator’s domicile at the time he made the will, for, unless there is strong indication to
the contrary, it is only reasonable to suppose that he was making his will be reference to the
law of his own country.

In Re Cunnington [1924] I Ch 68, the testator, originally domiciled in England, had

become domiciled in France. He made his will in England, in English form and language

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bequeathing his residuary estate to ten legatees, who were all English. Two of the legatees
died before the Testator. By English law their shares would go as on intestacy, while by
French law they would be divided among the surviving legatees. It was held that French law
governed, a decision which shows that the presumption that the testator intended the law of
his domicile to govern is a strong one, for there were weighty indications pointing to English
law. But it is not irrebuttable. In Re Price [1900] I Ch 442, for example, it was held that a
particular disposition in a will made by a testator domiciled in France was made with
reference to English law.

9.2.1.3. Capacity

Here we are concerned with such questions as whether the testator was old enough to make
a will, and whether his mental state was such as to preclude him from doing so. While it is
appropriate that the law of the country to which the testator belongs should determine his
capacity,9 it has not yet had to be decided, and is a matter of controversy, 10 whether the
relevant domicile is that at the date of making the will or at the date of the testator’s death.
The former view seems preferable, firstly because it refers to the law which is that of the
testator’s country at the time of the legal act in question, and secondly because it would
avoid the invalidation of a hitherto valid will, as the result of a change in the testator’s
domicile.

9.2.1.4. Formal Invalidity

The choice of la rules for the formal validity of a will are now contained in the Law of
Succession Act, which gives effect to the International Convention of the Formal Validity of
Wills of 1961. The policy of the Convention was, as well as to ensure uniformity of decision
in different countries, to try to avoid the invalidation of wills on formal grounds by allowing
compliance with the requirements of any of a number of laws. The Act provides that a will
shall be treated as property executed if its execution conformed to the internal law in force
in the territory where it was executed, or in the territory where, at the time of its execution or
of the testator’s death, he was domiciled or had his habitual residence, or in a state of which,
at either of those times, he was a national.

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It will be seen that seven countries are referred to in the section (though it is of course
unlikely that in any given case they will all be different). Moreover, further possibilities are
added for if the will was executed on board a vessel or aircraft, it is in addition sufficient if
the execution of the will conformed to the internal law in force in the territory with which,
having regard to its registration and other relevant circumstances, the vessel or aircraft may
be taken to have been most closely connected. Also it is sufficient if the will complied with
the formalities of any of the possible laws at the time of execution or at a subsequent time if
that law is altered with retrospective effect.

9.2.1.5. Revocation

There are various ways in which it may be claimed that a will, or a provision in a will, has
been revoked. If it is alleged that the will has been revoked (whether expressly or impliedly)
by a subsequent will, the issues will be as to the validity or construction of the latter, which
we have discussed above.

There is no authority as to the law which governs the questions whether a will is revoked by
destroying it. It has been suggested, no doubt correctly, that this should be governed by the
law of the testator’s domicile at the time of the purported revocation.

The question whether a will is revoked by the subsequent marriage of the testator (which is
the case in Kenyan law) is governed by the law of the testator’s domicile at the date of the
marriage- Re Martin (1900) P. 211

9.2.2. Immovable Property

We must now enquire to what extent the choice of law rules for wills are different in relation
to the disposition of immovable property. Does the lex situs govern all issues here? There
are two reasons why questions relating to immovable property may be subjected to the lex
situs. One is that the property is under the control of the authorities of the country where it
is situate, and a decision different from that which would be given by the court of that
country is unlikely to be of any effect. This reason, which of course only applies to foreign
land, indicates that the English court should apply, not necessarily the domestic law of the
situs, but whatever domestic law the courts of the situs would apply, i.e. the doctrine of total
renvoi should be used. The other reason, which applies to immovable property in Kenya, is
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that the interests of the country where the land is situate may be affected by the disposition
of the land. Whether this is so however depends on the nature of the domestic rules in
question.

9.3. Intestate Succession

9.3.1. Movables

So far as movable property is concerned, the law which governs the disposition of a person’s
property on his death, to the extent not validly disposed of by will, is the law of the
deceased’s domicile at his death – Re Collens (1896) Ch. 505.

9.3.2. Immovables

Intestate succession to immovable property, whether situate in Kenya or a foreign country is

governed by the lex situs.

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 Session 9
TRANSFER OF PROPERTY INTER VIVOS

10.1. Introduction
In this section we shall be considering the choice of law rules for the transfer of property
otherwise than by succession (but excluding transfers as the result of marriage). We shall see
that the governing law is normally the law of the country where the property is situate, even
in respect of movables.

10.2. Transfer of Movables

We are here concerned with the law which determines a given act, transaction or event
transfers title or other proprietary rights in a movable from one person to another. Title to a
movable is often transferred in consequence of a contract, but the law which governs the
contract is not necessarily the one which determines whether and when title passes in
pursuance of it. In the case of contract of sale for instance, if the contract is valid by its
proper law, the purchaser will acquire a contractual right to receive delivery of the goods to
the extent provided for by the proper law, but it is not necessarily the same law which
determines whether the title to the goods passes, and if so, whether on the making of the
contract, the delivery of the goods or at some other time. The efficacy of a term of the
contract dealing with the passing of the title will be determined by the law governing the
transfer of movables.

No doubt as between the parties to a contract whose object is to pass title, it would be
reasonable for questions of title to be governed by the proper law of the contract. But such
questions do not only arise as between the parties to the contract. Often they involve third
parties. Thus the question whether the title passed in pursuance of a sale of stolen goods
will usually arise as between the buyer, or a subsequent buyer, and the original owner, rather
than the seller. The extent to which a seller may effectively retain the title of goods which he
has delivered to the buyer is likely to arise, not between the seller and the buyer, but between
the seller and the buyer’s creditors or a subsequent buyer.

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The rule is that the transfer of a movable is governed by the lex situs, the law of the country
where the movable is situate at the time of the alleged transfer. That law determines whether
a given act or event does not transfer proprietary rights, and to what extent. The reason is
that a person who acquires goods, or rights in goods, should be able to rely on any title
which he obtains according to the law of the country where the goods are when he acquires
them, and to rely on that law for the retention of any title he obtains.

In Winkworth v Christie, Manson & Woods Ltd [1980] Ch 496, works of art of the
plaintiff were stolen from him in England and taken to Italy, where the second defendant
bought them in good faith. The latter sent them back to England to be sold by auction by
the first defendant, Christies. The plaintiff brought proceedings against the defendant in the
English court seeking a declaration that the works of art had at all material times been his
property, and various injunctions against the defendants. The success of the action
depended on whether English or Italian law should be applied to determine whether or not
the title to the goods had passed to the second defendant as the result of the sale to him in
Italy. By English law the title would not have passed, but by Italian law it would, as the
buyer was in good faith at the time of the delivery of the goods to him. It was held,
following the leading case of Cammel v Sewell [1860] 5 H & N 728, that Italian law, as the
law of the country where the goods were situate at the time of the delivery, governed the
question. The lex situs rule was held to apply even though this meant that the plaintiff was
deprived of his title under English law of goods removed from England without his consent,
and even though the goods were back in England at the time of the proceedings. Any
argument based on the hardship to the original owner in such circumstances was
counterbalanced by the interests of the innocent purchasers: ‘commercial convenience may
be said imperatively to demand that proprietary rights to movables shall generally be
determined by the lex situs …’

Once a title has passed as the result of a transaction under the lex situs it is immaterial that
the movable is removed to another country, under whose law the title did not pass. Thus in
Winksworth v Christie, the second defendant was held to have retained any title he
acquired under Italian law even after the goods were sent back to England.

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Similarly, if the title does not pass as the result of a transaction under the lex situs, it will
make no difference that it is then taken to another country under whose law it did pass, until
some even occurs when the goods are in that country under which the title passes according
to the law of that country. Difficult problems, which cannot be fully explored here, can
however arise in the application of these principles in practice.

The proposition that the lex situs governs the transfer of title to movables may be misleading
unless it is understood to mean that the relevant rule of the lex situs is applied to decide the
question. In Winksworth v Christie, some of the goods had already been sold by auction by
Christies before the proceedings were brought. Suppose the question was raised whether the
title passed to the buyer under that sale. One would obviously reach the wrong conclusion
by reasoning that because the goods were in England at the time of the auction, the question
whether the title passed under it was governed by English law; therefore the title did not
pass, because under the English law the original owner retained his title to goods stolen from
him despite any subsequent sales. The right approach is to say that because the auction took
place in England, the relevant rule of English law as to the passing of title is applicable. That
rule is that title will only pass (in the circumstances in question) if the seller had title to the
goods. That raises the incidental question whether the seller (i.e. the buyer in Italy) had
obtained title under his purchase in Italy. According to English conflict that is governed by
Italian law, under which he did obtain title. Therefore the title passed to the buyer at the
auction.

The same considerations would apply in the converse case, where the title does not pass
under the foreign law, but it would under English law. Suppose a seller, A, sells and delivers
goods to a buyer, B, in Germany, the contract containing a clause which is effective under
German law to retain the title to the goods in the seller, and to preclude the buyer from
reselling them, until the price is paid. Under English law however, the title would pass on
delivery. B brings the goods to England and there, before paying the price, he sells and
delivers them to C, who buys in good faith. Does the title pass to C? At the time when C
acquired the goods they were in England, so the relevant rules of English domestic law must
be applied. One such rule is that the title will pass if the seller himself has title. That raises
the question whether B had title, which according to the English conflict rule must be

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decided by German law as the lex situs at the time when B purchased the goods. So B did not
obtain title, and his mere bringing of the goods to England

If the auction took place not in England but a third country, presumably the incidental
question whether title had passed under the purchase in Italy would be decided according to
the conflict rules of the third country does not alter the position. C therefore does not
obtain title on the basis that his seller had title. Another rule of English domestic law is that
where a buyer who obtains possession of the goods with the consent of the seller delivers
the goods under a sale to a person receiving them in good faith, the latter receives good title
even though the former did not have title. The title would pass to C under this rule, for at
the relevant time the goods were in England, and the application of the rule accepts that B
did not obtain title under this purchase from A.

Problems could arise as to which is the appropriate moment for the selection of the lex situs.
Suppose goods are sold by A, a German company, to B, an English company, f.o.b. (free on
board) Hamburg, the contract containing a reservation of title clause which according to
German law is effective to retain the ownership of the goods in the seller until the price is
paid. By English law, the effect of the clause is that the ownership passes to the buyer when
the goods which would be void against creditors under s 395 of the Companies Act 1985
because it was not registered. If B becomes insolvent, then the seller would arguably be
entitled to claim the goods from the receiver. At the time the goods passed the ship’s rail
the goods were still in Germany, and by German law the title did not pass. The subsequent
removal of the goods to England should make no difference. If however the goods were
sold under an ex-ship contract under which, according to English law, the title passed to the
buyer on delivery in England, the title would pass to the buyer, for the lex situs at the
moment of the delivery is English law, according to which at that moment the title passed.
The seller would then not be able to recover the goods on the buyer’s insolvency. It is not
obvious however that the rights of the English creditors should depend on the precise
delivery terms of a contract for the export of goods to England, and the court might
conceivably hold that on its true construction, the relevant provisions of the Companies Act
apply even in the former case, overriding the ordinary choice of law rule.

Exceptions

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In Winksworth v Christie Slade J accepted that there are the following exceptions to the lex
situs rule.

‘If goods are in transit, and their situs is casual or not known, a transfer which is
valid and effective by its proper law will be valid and effective in England’

Title would not pass to a purchaser under the lex situs if he had not acted bona fide. This
case could well be regarded as an instance of the next exception

The English court may decline to recognise the particular law of the situs because it considers
it contrary to English public policy. This may arise in relation to the expropriation of
property by a foreign government. The principle that the transfer of title is governed by the
lex situs applies equally when the transfer is the result of expropriation by a state under a
decree or other legislation. If the property is in the territory of that state at the time when
the transfer is alleged to have occurred, then the effect will be given to it, subject to the
doctrines of public policy and the non-enforcement of foreign penal laws. But the better
view is that effect will not be given to an extra-territorial expropriation, i.e. if it purports to
operate on property outside the territory of the state concerned.

The court would have to apply English law if an English statute obliged to do so. This and
the previous exception are of course applicable to all choice of law rules

10.3. Transfer of Movables

As with movables, the general rule is that questions as to the transfer of proprietary rights in
immovable property are governed by the lex situs.

So if the property is situate in England, English domestic law will be applicable. This is no
doubt the proper approach for essential or formal validity (for example, rules requiring
registration of a transfer) which may affect the public interest or the interests of third parties.
However questions of capacity more commonly involve merely the competing interests of
the parties themselves. There is then no particular reason why English domestic law should
apply, and a similar rule to that for capacity to contract might therefore be suitable. There
seems however to be no English authority on these matters (other than cases concerned with
testamentary succession).

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There will be few cases where the question will arise as to the law governing the transfer of a
foreign immovable, in view of the fact that, as we have seen, it is only in rare cases that the
English court will exercise jurisdiction in such a case. One such case (where the question of
title arose incidentally) is Adams v Clutterbuck [1883] 10 QBD 403, in which a document
executed in England conveyed a right of shooting over certain moorland in Scotland. The
conveyance was not formally valid under English law, because the document was not under
seal, but it was valid by Scottish law. It was held that Scottish applied.

Where the immovable is situate in a foreign country, as we have seen, the reasons why the
lex situs governs is that the property is under the control of the foreign authorities. So the
law to be applied should be whatever domestic law the court of the situs would apply if that
is proved to be other than its own domestic law.

As with movables, the transfer of the title must be distinguished from the contract in
pursuance of which the title is to be transferred. A question concerning the contract is to be
decided by the proper law of the contract, which may, but will not necessarily, be the lex
situs. Moreover, as we saw in Chapter II, the English court may well exercise jurisdiction in a
dispute over such a contract.

Thus in Re Smith [1916] 2 Ch 206, the deceased and resident in England, had made a
contract in England with his sisters by which he charged his interest in certain land in
Dominica in their favour, as security for money which he owed them. He also undertook in
the contract to execute a legal mortgage over the land, but never did so. On his death, the
question arose as to the sisters’ rights in relation to the land. By the law of Dominica, the lex
situs, the contract was not effective itself to create a mortgage, because the requisite
formalities for the creation of a mortgage had not taken place. But the question of the
validity and effect of the contract was governed by the English law, under which, the
deceased having become bound to execute a mortgage, the executors were ordered to take
the necessary steps to do so.

If however the enforcement of a contract to transfer a proprietary right in an immovable

under a contract valid by its proper law would be impossible under the lex situs, the court
could hardly make an order for such enforcement. In Bank Of Africa Ltd v Cohen [1909]
2 Ch 129, a contract was made in England between the plaintiff, an English bank, and the

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defendant, domiciled and resident in England, under which the defendant undertook to
execute a mortgage over land which she owned in South Africa as security for money
advanced to her husband. She failed to execute the mortgage, and the plaintiff sought a
decree of specific performance in the English court. Under South Africa law a married
woman lacked capacity to stand surety for her husband, and a mortgage in pursuance of
such a guarantee could not be registered, unless she expressly and voluntarily renounced the
benefits of two laws,21 which the defendant had not done. It was held that the wife’s
capacity to make the contract was governed by South African law, as the lex situs, and as she
lacked capacity under that law, under which the defendant had full capacity to make a
contract with regard to an immovable, as opposed to transferring the immovable, is not
governed by the lex situs but by the law of the country with which the contract is most
closely connected. This was clearly English law, under which the defendant had full capacity
to contract. But even if this is accepted, would it not have been futile for the court to order
the wife to register the mortgage in South Africa, thus compelling her first to renounce the
benefits of the laws in question, when by the lex situs the renouncing of the benefits would
not be effective unless it was voluntary?

Another criticism which has been levelled against Bank Of Africa Ltd v Cohen is that a
South African court might well have held that its rule about a married woman’s capacity did
not apply to a woman domiciled in England. That however would be a matter to be
established by expert evidence of South African law, rather than for speculation by the
English court.

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