The Conflict of Laws and Statutes: The International Operational of Legislation Dealing With Matters of Civil Law in the United Kingdom and Australia

Published date01 September 1997
Date01 September 1997
The Conflict of Laws and Statutes: The International
Operation of Legislation Dealing With Matters of Civil
Law in the United Kingdom and Australia
Stuart Dutson*
This article attempts to outline the methods that the courts have employed in
determining whether legislation applies internationally, and the extent of that
international operation. The author then attempts to rationalise the interrelation-
ships between the different methods employed in the determination of the
territorial scope of legislation dealing with matters of civil law, and proffers
criteria to determine which method will be appropriate in any given case.
The law dealing with criminal legislation can be dealt with in short compass. In
determining the territorial scope of legislation that creates a criminal offence the
courts have employed the presumption against extraterritorial legislation
— the
law is treated as applying only to acts and omissions taking place in the territory of
the legislature.
However, the law dealing with the territorial scope of civil law
statutes is not so neat as this. As will be discussed below, the courts have employed
a number of different methods in determining the territorial scope of these statutes.
Many civil statutes
lay down rules of substantive law without any indication of
their application in space; statutes are often expressed in general terms such as ‘all
contracts’, ‘any agreement’, ‘any will’, or ‘any conduct’. For example, Part I of the
Consumer Protection Act 1987 (UK) operates where ‘any damage . . . is caused . . .
by a defect in a product’,
and Part VA of the Trade Practices Act 1974
(Commonwealth of Australia) operates ‘if a corporation supplies goods manufac-
tured by it . .. and because of [a defect the goods possess] an individual suffers
Generally, these otherwise all pervasive words must be given a limited
territorial meaning because the courts presume that the parliaments of the United
Kingdom and the Commonwealth of Australia do not intend to legislate for the
whole world.
However, by operating on persons, property or matters outside the
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.668
*Centre for Commercial Law Studies, Queen Mary and Westfield College, University of London.
Thanks are due to Mr R. Fentiman, Queens’ College, University of Cambridge; Professor W.D. Duncan,
QUT; Mr J. Collier, Trinity Hall, University of Cambridge; Dr C. McLachlan, Herbert Smith Solicitors;
and Professor Nygh, Sydney Bar, for their kind help in the preparation of the PhD thesis on which this
article is based.
1 Discussed in detail below.
2Goodwin vJorgensen (1973) 128 CLR 374, 383; Macleod vAttorney General of NSW [1891] AC
455, 458; Cox vArmy Council [1963] AC 48, 67.
3 As opposed to criminal enactments.
4 s 2(1); cf J.J. Fawcett ‘Products Liability In Private International Law: A European Perspective’
(1993) I Recueil des Cour 13, 228; and Rudolph Hulsenbeck and Dennis Campbell (eds) Product
Liability: Prevention, Practice and Process in Europe and the United States (Deventer: Kluwer,
1989) 70.
5 ss 75AD, 75AE, 75AF, and 75AG.
6Meyer Heine Pty Ltd vThe China Navigation Co Ltd (1966) 115 CLR 10, 22–23, 30–31; and
Holmes vBangladesh Biman Corporation [1989] 1 AC 1112, 1126, 1136–1138, 1145–1148.
territory of the enacting Parliament, a statute may have extraterritorial
In a case in which such a statute is relevant and there is a material international
element the court should consider two related,
but distinct
issues: 1. does the
statute have extraterritorial operation; and 2. what is the territorial scope of the
statute. If a court, when confronted by a statute that employs general language,
addresses the first issue, then whatever the answer is, the court may expressly or
implicitly determine the territorial scope of the statute.
If we were solely
concerned with a common law
cause of action
then both of these issues would
be irrelevant and we would refer directly to private international law to determine
the applicable law.
The disparate treatment of common law and statutory causes
of action appears, at least prima facie, to be incongruous.
A statutory cause of
action, being a private right created by a civil enactment, is for almost all other
purposes the equivalent of a common law cause of action and it would therefore
appear that both should be regulated in their application to cases with foreign
element by the same rules.
It is pertinent to note that there are two distinct forms of jurisdiction that are
relevant in any case viz ‘personal jurisdiction’ and ‘subject matter jurisdiction’.
7Trustees Executors and Agency Co Ltd vFederal Commissioner of Taxation (1932) 49 CLR 220,
235 per Evatt J; A.E. Anton Private International Law (Edinburgh: W. Green, 1990) 90–93; P.H.
Lane A Manual of Australian Constitutional Law (Sydney: the Law Book Company, 5th ed, 1991)
13; and Francis Alan Roscoe Bennion, Statutory Interpretation: A Code (London: Butterworths, 2nd
ed, 1992) 255–278 esp 257.
8 David St. Ledger Kelly Localising Rules in the Conflict of Laws (Adelaide: Woodley Press, 1974)
9 See Mynott vBarnard (1939) 62 CLR 67, 76–77 per Lathan CJ; Wanganui-Rangitikei Electric Power
Board vAMP Society (1933) 50 CLR 581, 600; Kelly ibid 79-80; and Michael Charles Pryles, ‘The
Applicability of Statutes to Multistate Transactions’ (1972) 46 Australian Law Journal 629.
10 cf Wilson vNattrass (unreported, Supreme Court of Victoria, Full Court, 16 May 1995) per
Brooking J at 6.
11 As opposed to a cause of action created by a statute.
12 The term ‘cause of action’ is used in this article to describe the legal description that is given to a
factual situation — the action available to a plaintiff such as negligence or trespass — not the factual
situation itself: cf Letang vCooper [1965] 1 QB 232; and W.R. Lederman ‘Classification in Private
International Law’ (1951) 20 The Canadian Bar Review 3, 13.
13 See, for example, P.M. North and J.J. Fawcett, Cheshire and North’s Private International Law
(London: Butterworths, 12th ed, 1992 [Cheshire and North (1992)] 8; and Collins (ed) Dicey and
Morris on The Conflict of Laws (Oxford: Oxford University Press, 12th ed, 1993) [Dicey and Morris
(1993)] 3–4; cf O. Kahn-Freund, ‘General Problems Of Private International Law’ (1974 III) 143
Recueil des Cours 139; and Edward Sykes and Michael Pryles, Australian Private International Law
(Sydney: Law Book Company, 3rd ed., 1991) 244 n 216.
14 J.H. Morris, Dicey’s Conflict of Laws (London: Stevens & Sons, 6th ed, 1949) [Morris (1949)] 608;
Australian Law Reform Commission Choice of Law, Report No 58 (Canberra: Australian
Government Publishing Service, 1992) 32, para 5.4; O. Kahn-Freund, ‘Reflections on Public Policy
in the English Conflict of Laws’ (1953) 39 The Grotius Society 39, 59; and J. Unger, ‘Use and Abuse
of Statutes in the Conflict of Laws’ (1967) 83 LQR 427, 446–447. Contrast F.A. Mann, ‘Statutes
And The Conflict Of Laws’ (1972–1973) 46 BYIL 117, 125, 134–135 and 138ff.
15 cf Kahn-Freund n 14 above, 59–65; Bennion n 7 above, 258, 264 and 269; and Broom vMorgan
[1953] 1 All ER 849, 854 per Denning LJ.
16 See MacKinnon vDonaldson, Lufkin and Jenrette Securities Corp [1988] Ch 482, 493; David Syme
& Co Ltd vGrey (1992) 115 ALR 247, 256–257 per Gummow J; Wilson vNattrass (unreported,
Supreme Court of Victoria, Full Court, 16 May 1995 per Ashley J (Hedigan J agreeing) at 12;
Flaherty vGirgis (1987) 162 CLR 574, 598 per Mason ACJ, Wilson and Dawson JJ; Mercedes-Benz
AG vLeiduck [1996] 1 AC 284, 305 (PC) per Lord Nicholls of Birkenhead (dissenting but not on
this point); Tycoon Holdings vTrencor Jetco Inc (1992) 34 FCR 31, 37; Hartford Fire Insurance Co
vCalifornia (1993) 125 L. Ed. 2d 612 (S Ct) per Scalia J (O’Connor, Kennedy and Thomas JJ
agreeing) in a dissenting judgment at 649–650 and 654; Inter-provincial Co-operatives and Dryden
Chemicals vThe Queen [1976] 1 SCR 477 per Laskin CJC (Judson and Spence JJ concurring)
September 1997] The Conflict of Laws and Statutes
The Modern Law Review Limited 1997 669

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