CASE STUDY ESSAY SAMPLE CONFLICT LAW

           

 

 

 

 

 

 

 

Name

Class

Date

           

 

 

 

 

 

 

 

 

a).

            In the commencement of a proceeding against the Ratnas, Emgems will have to rely on the clause the transaction was carried out on the basis of English common law. It is crucial to note despite the agreement, Sri Lanka courts do not have jurisdiction. The England courts will have territorial jurisdiction which is based on voluntary presence of the defendant. Further, this is helped by the fact Ratnas has a London branch, which means it will have ownership of assets that are within that jurisdiction.

For example, in the HRM Maharanee of Baroda v. Wildenstein1, the plaintiff of the case was an Indian princess living in France. The issue as determined by the courts was she bought the paintings from Wildenstein on basis they were the original work to realize later on that in essence, they were fake. The princess wanted the proceedings to be heard in an England High court but this was not possible since the defendant was not present in England. She had no option but to wait till the day Wildenstein visited England in order to watch Ascot races so as to serve him with the establishment of jurisdiction process of courts in England. This was an effective strategy for beginning a court proceeding simply because the defendant did not have any relations with England and it was also found sufficient to confer the jurisdiction to England courts.

In the instance of corporate such as Ratnas and Emgems, they are viewed as being within territory if they are able to conduct their business there. A case used to establish this is the one

 

Maharanee Seethadevi Gaekwar of Baroda v Wildenstein (1972) 2 QB 283

 

regarding the National Commercial Bank v. Wimborne. 2 This means Emgems simply needs to prove the Ratnas established a branch and additionally have operated for a given number of years. Because the company is incorporated in Sri Lanka, then the Ratnas must be registered as a foreign country and this should be in accordance to the Corp Act and it should nominate an agent to be in charge of service provision.

(b)

(I) the party in the agreement arbitration against who the legal proceeding gets instituted in the form of counterclaim and claim can be applied in the same court that proceedings are brought so they can stay within the proceedings. The major principle is for prosecution to make a decision on whether the prosecution should be commence or whether to be continued if the commencement has already begun. According to Environment Agency v Stanford, 3, the jurisdiction to stay is exercised with caution and often, it is the prosecutor’s duty. It is just in cases where the abuse is shown clearly that the court has the right to intervene and order a stay. The courts however have the constitutional duty to promote justice while at the same time preventing injustice. As such, the courts do have the inherent power to stay as well as order an indictment if in the courts opinion, allowing the prosecution might lead to court abuse.

Abuse of court process is defined as unfairness of the prosecution that courts should not be permitted to go on. According to the Bennet V. Horseferry Road4 Magistrate court, staying of the prosecution can arise in circumstances that would be deemed impossible to

National Commercial Bank v. Wimborne (1979) 11 NSWLR 156

 

Environment Agency v Stanford [1998] C.O.D. 373, DC

Re v. Horseferry Rd Magistrates’ Court (Ex parte Bennett) 24 juin 1993, [1994] 1 A.C. 42

 

provide the accused with a fair trial or in circumstances that proceedings will amount to the manipulation or misuse of court process.

(ii) Whether to restrain the Sri Lankan action

In application of the English Law, courts have authority of restraining the defendant in its own jurisdiction from carrying on with a court proceeding in foreign land especially when the major interest is that of attaining justice. As such, it is the duty of the party seeking anti-trust suit, which is Emgems in this case to prove the proceeding going on in a foreign court in Sri Lanka is either vexations or oppressive. For example, in the case of Deutsche bank AG v. Highland Crusader offshore Partners5, the court restrains proceedings in foreign jurisdiction in the interest of delivering justice. Ani-suit injunction by the English courts is applied in a manner that is cautious and involves interference with proceedings that are ongoing in the foreign court. It is crucial to note the prosecution of parallel proceedings in varying jurisdictions is not something desirable but rather, seen as oppressive or vexatious.

Emgems can make the argument that proceedings in Sri Lanka are oppressive and vexatious on the basis of the concept of forum non convenience. This might involve showing England is the most ideal forum as such, the natural forum for jurisdiction to take place. As such, getting justice for both sides requires stopping the proceedings instituted in Sri Lanka by Ratnas. It is crucial to note even when the English court established England is the most natural forum and the claimant does not have legit personal and judicial advantage in Sri Lanka proceedings, the courts can still automatically issue a restrain in the proceedings taking place in Sri Lanka.

Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023

 

 

 

 

 

Bibliography

Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023

Environment Agency v Stanford [1998] C.O.D. 373, DC

Maharanee Seethadevi Gaekwar of Baroda v Wildenstein (1972) 2 QB 283

National Commercial Bank v. Wimborne (1979) 11 NSWLR 156

Re v. Horseferry Rd Magistrates’ Court (Ex parte Bennett) 24 juin 1993, [1994] 1 A.C. 42