Topic 1: Concept of IPL, Sources of IPL and Stages in an IPL Case Lecture 1 of 2
Focus of this lecture
In this lecture we will consider:
▪ Key Point: Aim of IPL; Stages of an IPL case; Domicile as a Connecting Factor
▪ Key Terms
▪ Review Summary
Key Terms in this Lecture
▪ Jurisdiction – to connect anyone one of us to a jurisdiction, you need to have a sufficient
connection with the jurisdiction. For the court to have jurisdiction, you have got to have a
sufficient connection with the jurisdiction for the law to apply. What is your domicile?
▪ Choice of Law – once the court has established it has jurisdiction, then what law should apply.
▪ Recognition of judgments
▪ Enforcement of judgments – what are the rules to have judgements recognised in Scots law
where the judgement was in a foreign jurisdiction.
▪ Foreign element/aspect
▪ Judicial cooperation
▪ Retained EU law
▪ Characterisation/classification
▪ Difference between substantive law and procedural law
▪ Lex fori
▪ Lex causae
▪ Lex situs
We can consider judgements from the Court of Justice up until the Exit Day – 31 January 2020.
What is IPL all about?
We are focusing on situations where there is a foreign aspect to a dispute between the parties and
that then may raise questions relating to a, b, or c.
Scottish International Private Law consists of those rules of Scots private law which:
a. delimit the jurisdiction of the Scottish courts in cases with foreign elements;
One of the parties is not Scottish domicile, one of the companies of the dispute is based in Germany,
for example we have the Israeli Italy dispute about the cable car and the child, which court has
jurisdiction? if any of those parties are in dispute with each other. We cannot assume that it is the
, Scottish courts or any other court, we have to be satisfied that there is sufficient connection with the
jurisdiction, and the rules are about establishing that sufficient connection.
If it is a contract dispute, look to the contract - have they pre-agreed where they will sue each other?
That is a device to manage risk, you are using jurisdiction to manage risk - transaction risk and manage
litigation risk – where does it end up if all things go wrong.
Delict – under Scots rules, it can be the law under the place where the harm has occurred or where it
may occur. It can include a threatened wrong as well. The key case on threatened wrong is the case
of Donarmedia? Which involved the threatened breach of IP right on a website, there was a prospect
of this happening, they could bring a threatened wrong claim in the jurisdiction where the threat of
harm was likely to occur.
b. specify when these courts are to apply the rules of other legal systems;
Once you have jurisdiction, you must know which law applies. The Lex Fori, meaning the law of the
forum. If the Scottish courts have jurisdiction, there is an assumption that Scots law applies. That is
why choosing your jurisdiction in a contract is a big deal. There is a debate around whether jurisdiction
or choice of law is more important, what law applies.
Choice of law is about assessing if the Lex Fori does not apply or should not apply if it is not fair ir just,
then is there some other law that should apply in the circumstances. You can use your contract to
specify your choice of law. With delict, there are particular rules which still exist post-Brexit in relation
to the law of the place of harm, and choice of law rules apply in choice of marriage, so what law
governs the validity of the marriage. Choice of law covers both commercial and family issues.
c. provide for the recognition and enforcement within Scotland of the decrees of courts of
other countries.
The rules for recognition and enforcement are straight forward but the challenge is where you are
asking the court to recognise or refuse to recognise the enforcement, on what grounds can you ask
the court to refuse to enforce a judgement in Germany because, and then you have to show that it is
in one of the headings under refusal.
If we are going to refuse to recognise a foreign judgement, we have to be sure that there is a
fundamental issue of public policy which gets in the way of that. You cannot be seen to be interfering
in a foreign systems decision making, it’s made a decision and you should respect it, unless it
contradicts our rules of justice and fairness. E.g., if a judgement is obtained by fraud or obtained by
duress because witnesses were compelled to give evidence which was incorrect, or there was some
form of substantial procedural irregularity, or the judgement is for enforcing something which we
would not enforce, so a judgement which validates criminal activity or something which goes against
moral conduct, we would then be justified to refuse the judgement. The key is to respect foreign
judgements and we do not challenge or alter their decision making, it is disrespectful.
Focus of this lecture
In this lecture we will consider:
▪ Key Point: Aim of IPL; Stages of an IPL case; Domicile as a Connecting Factor
▪ Key Terms
▪ Review Summary
Key Terms in this Lecture
▪ Jurisdiction – to connect anyone one of us to a jurisdiction, you need to have a sufficient
connection with the jurisdiction. For the court to have jurisdiction, you have got to have a
sufficient connection with the jurisdiction for the law to apply. What is your domicile?
▪ Choice of Law – once the court has established it has jurisdiction, then what law should apply.
▪ Recognition of judgments
▪ Enforcement of judgments – what are the rules to have judgements recognised in Scots law
where the judgement was in a foreign jurisdiction.
▪ Foreign element/aspect
▪ Judicial cooperation
▪ Retained EU law
▪ Characterisation/classification
▪ Difference between substantive law and procedural law
▪ Lex fori
▪ Lex causae
▪ Lex situs
We can consider judgements from the Court of Justice up until the Exit Day – 31 January 2020.
What is IPL all about?
We are focusing on situations where there is a foreign aspect to a dispute between the parties and
that then may raise questions relating to a, b, or c.
Scottish International Private Law consists of those rules of Scots private law which:
a. delimit the jurisdiction of the Scottish courts in cases with foreign elements;
One of the parties is not Scottish domicile, one of the companies of the dispute is based in Germany,
for example we have the Israeli Italy dispute about the cable car and the child, which court has
jurisdiction? if any of those parties are in dispute with each other. We cannot assume that it is the
, Scottish courts or any other court, we have to be satisfied that there is sufficient connection with the
jurisdiction, and the rules are about establishing that sufficient connection.
If it is a contract dispute, look to the contract - have they pre-agreed where they will sue each other?
That is a device to manage risk, you are using jurisdiction to manage risk - transaction risk and manage
litigation risk – where does it end up if all things go wrong.
Delict – under Scots rules, it can be the law under the place where the harm has occurred or where it
may occur. It can include a threatened wrong as well. The key case on threatened wrong is the case
of Donarmedia? Which involved the threatened breach of IP right on a website, there was a prospect
of this happening, they could bring a threatened wrong claim in the jurisdiction where the threat of
harm was likely to occur.
b. specify when these courts are to apply the rules of other legal systems;
Once you have jurisdiction, you must know which law applies. The Lex Fori, meaning the law of the
forum. If the Scottish courts have jurisdiction, there is an assumption that Scots law applies. That is
why choosing your jurisdiction in a contract is a big deal. There is a debate around whether jurisdiction
or choice of law is more important, what law applies.
Choice of law is about assessing if the Lex Fori does not apply or should not apply if it is not fair ir just,
then is there some other law that should apply in the circumstances. You can use your contract to
specify your choice of law. With delict, there are particular rules which still exist post-Brexit in relation
to the law of the place of harm, and choice of law rules apply in choice of marriage, so what law
governs the validity of the marriage. Choice of law covers both commercial and family issues.
c. provide for the recognition and enforcement within Scotland of the decrees of courts of
other countries.
The rules for recognition and enforcement are straight forward but the challenge is where you are
asking the court to recognise or refuse to recognise the enforcement, on what grounds can you ask
the court to refuse to enforce a judgement in Germany because, and then you have to show that it is
in one of the headings under refusal.
If we are going to refuse to recognise a foreign judgement, we have to be sure that there is a
fundamental issue of public policy which gets in the way of that. You cannot be seen to be interfering
in a foreign systems decision making, it’s made a decision and you should respect it, unless it
contradicts our rules of justice and fairness. E.g., if a judgement is obtained by fraud or obtained by
duress because witnesses were compelled to give evidence which was incorrect, or there was some
form of substantial procedural irregularity, or the judgement is for enforcing something which we
would not enforce, so a judgement which validates criminal activity or something which goes against
moral conduct, we would then be justified to refuse the judgement. The key is to respect foreign
judgements and we do not challenge or alter their decision making, it is disrespectful.
