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Vol 22 No 10 Oct/Nov 2017

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Judicial Remedies in the Conflict of Laws

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Olusoji EliasLecturer of Law, University of Buckingham

ISBN13: 9781901362213
ISBN: 1901362213
Published: February 2001
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £75.00



Despatched in 8 to 10 days.

The practical and theoretical policy underpinning the use of judicial remedies on private international law are now assuming great importance within the framework of increasing cross-border litigation. This book is designed to treat these remedies in an analytical and systematic fashion.

The forms of relief available, interlocutory and final, have developed into a category of their own, with distinctive principles and considerations. Arising out of a blend of international conventions, national legislation and the jurisprudence of the courts, the remedies have developed their own character quite distinct from the remedies available in national courts under domestic law.

Divided into ten chapters, the book provides an analysis of each remedy in theoretical and policy terms, and a practical discussion of the remedies in personam and in rem. Written primarily from the perspective of English law the text also makes use of plentiful comparative examples and will be useful to academics and practitioners alike.

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Subjects:
Conflict of Laws
Contents:
Part 1 Introduction.
Background: localization, characterization, substance and procedure
some cognate matters - limitation, evidence
classifications of relief
scope and perspective of a book on conflicts relief
comparative law dimensions
structure and composition of the book.

Part 2 Remedialist theory and policy - exploring single bright line logic.
Forum policy: the ultimate local form and the transnational context.
Forum policy: procedural justiciability in the conflict of laws - the remedial dimensions
convenience (as practicability) in remedial adjudication
rational or judicial justice
efficience - minimizing procedural conflicts
legal mandation, public policy, state interest. Applicable remedial law: where are we now?
Barings - a case study
the facts and the contentions
the issues - "proper law", "remedy"
the decision and its consequences and implications
a(n interim) conclusion - the problem. Enforcing non-"self-executing" remedies: enforcement, execution
the role of the lex fori
territory and res judicata. Objective localization: Barings resumed - remedies and the centre of gravity
conclusion.

Part 3 particular relief in personam. Compensatory damages and other money awards in personam: preliminary
compensatory damages
restitutionary (or disgorgement) damages
equitable damages
nominal and contemptuous damages
aggravated damages
exemplary or punitive damages
damages under European Union law
an addendum - A.G. v. Blake. Injunctions and interim relief: essence and variety of injunctive relief
interlocutory injunctions
antisuit injunctions
freezing orders (the Mareva jurisdiction)
staying forum actions and the declination of jurisdiction
further interim orders
final injunctions. Remedial performance of contracts: specific performance in domestic, conflicts and comparative law
availability of and scope for specific performance in conflicts cases
the relevant principles from jurisdiction
the procedural aspects - the action for specific performance
comparativist perspectives
a recapitulation
other performance relief - judicial enforcement of contractually stipulated remedies
conclusion. Remedial restitution: forum perspectives on localizing restitution
formal aspects of restitutionary recovery
personal restitutionary remedies
restitution of money had and received and of money paid
restitution by a quantum meruit or a quantum valebat - reasonable recompense
restitution by an account of profits
rescission of voidable contracts
proprietary restitutionary remedies
tracing orders - legal and equitable
subrogation
judicial imposition of a constructive trust or of a lien
conclusion.

Part 4 Relief in rem.
Remedial declarations and relief in rem: jurisdictional and other factors of general application
interpretations of European Union law
the construction of legal instruments
family law and status cases
negative declarations
a note about other relief in rem.

Part 5 Envoi.
Remedies and localism.