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ISBN: 9780198258780


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Foreign Law in English Courts

Pleading, Proof and Choice of Law

Richard Fentiman

This new work provides an account of the law and practice of commercial dispute resolution, with a particular focus on disputes before the English Commercial Court. Practical in its orientation, with an emphasis on strategic considerations, it also addresses the underlying problems in private international law and international civil procedure at the centre of cross-border commercial disputes. A particular feature of the book is its analysis of the legal risk involved in such disputes, and the ways in which this may be reduced by appropriate planning and drafting. Although concerned with the conduct of litigation it also assesses the impact of litigation on commercial transactions. It discusses important recent developments relating to cross-border injunctions and jurisdiction agreements, and the changes that the Hague Choice of Court Convention might introduce. It considers the implications of the recent European Court decisions in Erich Gasser v MISAT, Turner v Grovit, Owusu v Jackson, and Allianz v West Tankers. It examines the impact of the Rome I and Rome II Regulations in the commercial context, and the practical effect of the new rules they introduce concerning mandatory rules, restitution, and pre-contractual fault in commercial disputes.

A definitive yet accessible account which presents the law and its underlying principles in depth in a single volume

Provides a clear, practical explanation of difficult technical problems in private international law

Addresses matters of importance to practitioners by taking a problem-led approach

Suggests solutions to novel and emerging problems

I Introduction
1: Introduction
II Legal Risk and Multistate Transactions
2: Managing Litigation Risk
3: Managing Transaction Risk
III The Laws Governing Multistate Litigation
4: The Laws Governing Multistate Transactions
5: The Dynamics of Choice of Law
6: The Content of Foreign Law
IV Commencing Proceedings
7: Strategic Choices
8: The Framework of Jurisdiction
9: Establishing Jurisdiction
V Preventing Proceedings
10 Policy, principle and reform: Excluded Claims
11: Declining Jurisdiction: Regulation 44/2001
12: Declining Jurisdiction: Residual Rules
13: Procedural Objections
14: Preclusive Proceedings
15: Restraining Foreign Proceedings
VI Recovery and Enforcement
16: Recovering Transaction Loss
17: Preserving Judgment Assets
18: Enforcing Judgment Debts

Richard Fentiman , Lecturer in Law, University of Cambridge

Richard Fentiman is Reader in Private International Law at the University of Cambridge and a Fellow of Queens' College, Cambridge. He previously practised full-time as a solicitor. He is responsible for the postgraduate course on International Commercial Litigation at Cambridge, and lectures regularly at universities and to practitioners in many countries. He was a co-author of the Financial Markets Law Committee's recent reports on the commercial impact of the Rome I and Brussels I Regulations, and gave evidence to the House of Lords EU Law Committee on changes to the European jurisdiction and judgments regime. He is well known for his expertise and writing on the subject of private international law, and in particular for his book Foreign Law in English Courts (OUP, 1998).

`a most important contribution to a gradual approximation of common law and civil law approaches to the subject' Professor Erik Jayme, Professor of Law, University of Heidelberg and President of the Institut de Droit International

`Oxford University Press are to be warmly congratulated on promoting a series of specialist monographs in Private International Law ... nearly 350 pages of balanced and detailed text ... As one would expect from Oxford University Press the work is handsomely produced with detailed footnotes containing full references to common law and civil law jurisdictions ... The volume will benefit any lawyer with a case involving foreign law ... this book can be read with profit and pleasure by all ... a timely, readable and absorbing book which is likely to become the specialist text on this particular topic ... this volume will be cited regularly in the courts and will find a place in all university law libraries. Mr Fentiman has made a valuable contribution to the literature of private international law with this specialist monograph.' Legal Update, 1999 ( reviewer not named)

`This book is a much-needed addition to the slowly developing stock of modern, scholarly writings about the nature and theory of conflict laws from the English standpoint ... the work will be read with interest and enlightenment by academics and practitioners alike ... thanks to Fentiman, those curious to discover these matters can set about doing so, and at the same time they will be pleasantly surprised to discover some promising indications that the law is at last destined to enter upon a phase of reformulation in consequence of recent developments ... The ten chapters of Fentiman's book together provide a challenging, and tautly argued, account of the law that is properly critical of its illogical and absurd aspects ... a fascinating period of evolution is in prospect ... the current text provides ample inspiration, and intellectual sustenance, for those who aspire to play an active part in that process.' Ian Fletcher, The Law Quarterly Review, Vol 115, July 1999

"A book of remarkable wealth", Horatia Muir Watt, Revue Critique - January-March 1999