Authorised by Academic Registrar, April 1996
Objectives Students who successfully complete this subject should (1) be in a position to identify when a particular fact situation involving a foreign element raises conflictual issues, and what those issues are; (2) be able to advise on how those issues would be approached by an Australian court; (3) have some awareness of the theoretical and policy justifications for the conflictual rules that would be applied in such a situation; (4) have an appreciation of the rules that govern the recognition and enforcement of foreign judgments in Australia; (5) have an appreciation of the private international law aspects of jurisdictional questions; (6) be able to examine critically the current state of the law relating to conflicts and (7) have some awareness of how conflicts are resolved in other jurisdictions, both under the common law and under civil law.
Synopsis Conflict of laws deal with the legal problems that arise in cases involving a foreign element. In such cases, three particular questions may arise: (i) whether a Victorian court has jurisdiction to consider the matter, (ii) which law should govern the substantive issues, and (iii) what effect do foreign judgments and orders have in Victoria. This subject begins with a consideration of the history of conflict of laws and the theories underlying it. Jurisdictional issues will then be examined briefly, followed by a discussion of choice-of-law principles and the limitations that exist on the application of foreign law. The specific rules applying in selected areas, such as torts, contract, property and succession, will then be considered. Other topics to be discussed include conflict issues arising in a federal jurisdiction and the recognition and enforcement of foreign judgments.
Assessment Written assignment: 30% and final examination: 70% or final examination: 100%