A Study In The Interrelation Between Choice Of Law Clauses And The Conflict Of Laws
| Published date | 01 October 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00140.x |
| Date | 01 October 1949 |
| Author | K. Lipstein |
JURISDICTION
IN
BANKRUPTCY
A
STUDY
IN
TEE
INTERRELATION
BETWEEN
CHOICE
OF
LAW
CLAUSES
AND
THE
CONFLICT
OF
LAWS
I.
LEQISUTION
1825-1914
IN
recent years choice
of
law clauses
in
domestic legislation
have attracted considerable attention.' Some have been examined
in
considerable detail, but others have scarcely been noticed.
Among the latter, the provisions contained
in
the Bankruptcy Act,
1914,
are of particular interest not only from the theoretical but
SO
from the historical point of view. Moreover, the Court
of
Appeal
has recently had the rare opportunity of discussing and applying
them.'
The Bankruptcy Act,
1914,
pfovides
:-
1.-(1)
A
debtor commits an act of bankruptcy
in
each
of the following cases
:-
(a)
If
in England or elsewhere he makes
a
conveyance or assign-
ment
of
his property to
a
trustee or trustees for the benefit
of
his creditors generally
;
(b)
If
in
England or elsewhere he makes a fraudulent convey-
ance, gift, delivery, or transfer
of
his property, or
of
any
(f
c)
f
in England or elsewhere he makes any conveyance
or
transfer of his property
or
any part thereof, or creates any
charge thereon, which would under this or any other Act
be void as a fraudulent preference if he were adjudged
bankrupt
;
(d)
If
with intent to defeat or delay his creditors he does any
or being out of England remains out of En
Pmd,
and,
or
of
the following things, namely, departs out
of
departs from his dwelling-house, or otherwise absents him-
self, or begins to keep house
;
(e)
If
execution against him has been levied by seizure
of
his
goods under process in an action in any
court,
or
in
any
civil proceeding in the High Court, and the'goods have
been either
sold
or held by the sheriff for twenty-one days
:
Provided that, where an interpleader summons has been
taken out in regard to the goods seized, the time elapsing
between the date at which such summons is taken out and
the date at which the proceedings on such summons are
finally disposed of, settled, or abandoned, shall not be
taken
into
account
in
calculating such period of twenty-
one days
;
1
Momn,
(1946) 69
L.
.R.
170;
Roberteon,
Charaotcriration in
the
Con~7ict
oi
1
%e
o
Debtor
(No.
395
of
1947) [l948]
9
All
E.R.
533;
64
T.L.R.
446.
art thereof
;
Law8
(1940),
p.
99;
8
usrbaum,
Plinaiples
of
Priaote International Law (l942),
70.
454
On.
1949
JURISDICTION IN BANKRUPTCY
455
(n
If
he files
in
the court a declaration of his inability
to
pay
his debts or presents a bankruptcy petition against himself;
(g)
If
a
creditor has obtained a final judgment or final order
against him for any amount, and, execution thereon not
having been stayed, has served
on
him in England, or, by
leave of the court, elsewhere, a bankruptcy notice under
this Act, and he does not, within seven days after service
of the notice, in case the service is effected in England, and
in case the service is effected elsewhere, then within the
time limited
in
that behalf by the order giving leave to
effect the service, either comply with the requirements
of
the notice or satisfy the court that he has
a
counter-claim
set
off
or cross demand which equals or exceeds the amount
of
the judgment debt
or
sum
ordered to be paid, and
which he could not set up in the action in which the judg-
ment was obtained, or the proceedings in which the order
was obtained
:
For the purposes of this paragraph and
of
section two
of this Act, any person who is, for the time being, entitled
to enforce
a
final judgment or final order, shall be
deemed to be a creditor who has obtained
a
final judg-
ment or final order
;
(h)
If
the debtor gives notice
to
any of his creditors that he has
suspended, or that he is about to suspend, payment
of
his
debts.
1.-(2)
In this Act, the expression
'
a
debtor
',
unless the
context otherwise implies, includes any person, whether a
British subject or not, who
at
the time when any act
cf
bank-
ruptcy was done or suffered by him-
(a)
was personally present
in
England; or
(b)
ordinarily resided or had
a
place of residence in England;
(c)
was carrying on business
in
England, personally, or by
(d)
was
a
member of a Arm or partnership which carried on
4.-(1)
A
creditor shall not be entitled to present a bank-
(d)
the debtor is domiciled in England, or within a year
before the date of the presentation of the petition has
ordinarily resided, or had
a
dwelling-house or place of
business, in England, or (except in the case of a person
domiciled in Scotland or Ireland or a Arm or partner-
ship having its principal place of business in Scotland
or Ireland) has carried on business in England,
personally or by means of
tin
agent or manager, or
(except as aforesaid) is or mithin the said period has
been
a
member of a firm or partnership of persons which
has carried on business in England by means of
a
part-
ner or partners, or an agent
or
manager,
nor, where
a
deed of arrangement has been executed, shall a
creditor be entitled
to
present a bankruptcy petition, founded
or
means of an agent or manager; or
business in England.
ruptcy petition against a debtor unless
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