Neilson vs Overseas Projects Corporation of Victoria Ltd : Renvoi and Consumptions About Foreign Law  

Oleh:

Davies, Martin

Jenis: Article from Journal - ilmiah internasional
Dalam koleksi: Melbourne University Law Review vol. 30 no. 1 (Apr. 2006), page 244-268.
Topik: consumption; oversease projects; corporation; consumptions; laws

Ketersediaan

Perpustakaan Pusat (Semanggi) Nomor Panggil: MM70 Non-tandon: 1 (dapat dipinjam: 0) Tandon: tidak ada

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In Neilson v Overseas Projects Corporation of Victoria Ltd, the High Court of Australia considered how to approach a choice of law question involving a possible renvoi to Australian law. Of the three possible solutions (rejecting the renvoi, single renvoi and double renvoi), the majority adopted the double renvoi approach without committing itself to doing so in all cases, and without suggesting any solution to the problem of infinite regression, which arises when both the lex causae and the lex fori use the double renvoi approach. This case note suggests that choice of law in general and renvoi in particular should be considered in the context of an analysis of the jurisdictional rules of the relevant foreign law area, including its rules about forum non conveniens. This case note argues that it makes no sense to apply foreign law at all, far less the choice of law rules (including the renvoi rules) of that foreign law, if the relevant foreign courts would not have or retain jurisdiction over the dispute. If an answer to the renvoi question is still called for after this preliminary jurisdictional enquiry, single renvoi is preferable, although it was rejected by a majority of the Neilson Court. This case note also points out that the Neilson Court used the presumption that foreign law is the same as Australian law in a manner that greatly assists forum shopping, while repeating the now routine condemnations of the practice of forum shopping.

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