Ten years on, Dicey returns to the global stage

Lest any readers are under the misapprehension that the conflict of laws is an arid academic legal discipline – the sole purpose of which is to assist the English court in deciding a case which has a foreign element – they are mistaken.

Let me take you back to the Iran-Iraq war. Iran began attacking Kuwaiti vessels. My client, Captain Tim Stafford, was charged with the task of bringing his fleet of Kuwaiti oil tankers through the Strait of Hormuz – and in the process had to dodge deadly Exocet missiles which were regularly fired at his tankers. The Kuwait Oil Tanker Company (Captain Stafford was fleet operations manager) was authorised to set up shell companies so that Kuwait crude carriers, flying US flags, could transport cargoes safely through the Gulf. Captain Stafford heroically and almost single-handedly kept the supply of oil flowing to the west during the Iran-Iraq war, notwithstanding the ongoing carnage around him.

Little did Captain Stafford know that his heroic exploits would break new legal ground in the English conflict of laws. A dispute arose regarding revenues of in excess of $120m generated by the oil cargoes under Captain Stafford’s stewardship.

Captain Stafford’s trial in the Commercial Court lasted for 70 days. This was followed by lengthy appeals to the Court of Appeal and the Supreme Court. The case Kuwait Oil Tanker SAK v Al Bader [2000 2 All ER] became an authority for a number of important legal principles. In particular, the Court of Appeal determined that it was first of all necessary for the court to determine the proper law of the relationship between the defendant and the claimant and then to consider what law governs those duties and whether those duties have the general characteristics of being fiduciary by English standards, and finally whether it would be unconscionable for the defendant to retain assets in the circumstances of the case.

It has been some 10 years since the last edition of this seminal work on the conflict of laws was published. One of the primary reasons for the new edition is to take into account the UK’s withdrawal from the EU and the necessary changes to English law that arise following the excision of EU law from English law. Significant new developments are vividly explained. In Dicey, case law takes priority and academic theories take second place. Those searching for more academic discussion may wish to consult Dicey’s rival Private International Law (Cheshire, North & Fawcett).

This edition is in three volumes, two hardback volumes and a softback supplement (containing the law on the revoked European Regulations and the Lugano Convention). The three volumes run to more than 2,500 pages in total.

The textbook has had three principal general editors during its lifetime. The first was A V Dicey, Vinerian Professor of English Law at the University of Oxford. Professor Dicey was followed by John H C Morris of Magdalen College Oxford who famously said that law books are like babies: they are the greatest fun to conceive, but very laborious to deliver. According to Lord Denning, John Morris’s ‘contribution to the conflict of laws excelled even that of his great predecessor A V Dicey’. Lord Collins of Mapesbury is the current general editor. Professor Jonathan Harris KC is now the joint editor, since 2015 with Collins. The first edition by Dicey was published in 1896. This is the 16th edition.

Arthur Nussbaum in his Principles of Private International Law (1943) said that the student of private international law ‘regards himself, as it were, a member of an international community of learning. He will have to study foreign legal ideas and thereby obtain insight into the variety and interplay of heterogenous legal concepts and ideas all over the world’.

The conflict of laws is that part of the private law of a country that deals with cases having a foreign element. By a ‘foreign element’ is meant simply a contact with some system of law other than English law. Such a contact may exist, for example, because a contract was made or is performed in a foreign country, or because a tort was committed there or because property was situated there, or because the parties are not English. In the conflict of laws, a foreign element and a foreign country mean a non-English element and a country other than England. For example in the leading case of Regazzoni v KC Sethia (1944) Ltd [1958] AC 301, the House of Lords recognised the principle that English courts will not enforce contracts where the parties contemplate the breach of the law of a foreign and friendly country where the breach relates to illegalities committed or to be committed in the foreign country.

From the point of view of the conflict of laws, Scotland and Northern Ireland are for most but not all purposes as much foreign countries as France or Germany. A notion that would no doubt excite members of the SNP.

Unusually for an academic textbook, Dicey sets out the law in a series of rules. This concept originated when A V Dicey had little case law or statute law to rely on. The text is renowned worldwide and is the pre-eminent authority on private international law. It explains the rules and principles of practice that determine how the law of England and Wales relates to other legal systems. The book sets out an articulation of the law derived from the authorities in lapidary rules which are then accompanied by a presentation of the authorities and amplifying explanatory comments and illustrations.

It should be recalled that until the latter part of the 18th century an English common law court would not decide a case under any law other than under the common law of England or by determining that it had no jurisdiction.

This new edition of Dicey in Vol I deals with inter alia, general principles and in particular the effects of the UK’s withdrawal from the EU. It also deals with the conflict of laws generally, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. In the section dealing with arbitration and investment disputes, a significant part deals with the rapid development of international investment arbitration following the enormous growth in the conclusion of bilateral investment treaties and the exponential use of the facilities provided by the International Centre for Settlement of Investment Disputes (ICSID). ICSID arbitrations are discussed in some detail as is the arbitral procedure generally.

Volume II deals with specific areas of law such as family law, property law, succession and trusts, and insolvency in the law of obligations. The paperback supplement explains in some detail the effects of the withdrawal by the UK from the EU.

Dicey is indispensable to practitioners engaged in advising on matters appertaining to the conflict of laws. It provides an authoritative tone notwithstanding that English conflicts of law has no US style ‘Restatement’ or statute law in the continental style. Thanks to Dicey neither a Restatement nor a statute is necessary.

Stephen D Sutton is principal of Suttons Solicitors and International Lawyers, London W1