Book contents
- Frontmatter
- Contents
- Table of panels
- List of figures
- Preface
- Acknowledgments
- Terminology
- Table of Latin phrases
- List of abbreviations
- Table of cases
- Table of cases (European Court of Justice, numerical order)
- Table of legislative instruments
- PART I STARTING OFF
- PART II JURISDICTION
- PART III FOREIGN JUDGMENTS
- PART IV PROCEDURE
- PART V CHOICE OF LAW
- 22 Introduction to choice of law
- 23 Torts
- 24 Contracts: the principle of party autonomy
- 25 Contracts: legal policy and choice of law
- 26 Contracts: regulating business, protecting employees and helping consumers
- 27 Foreign currency
- 28 Property: tangible movables
- 29 Contractual rights and property interests – I
- 30 Contractual rights and property interests – II
- 31 Contractual rights and property interests – III
- PART VI EXTRATERRITORIALITY
- Bibliography
- Index
29 - Contractual rights and property interests – I
from PART V - CHOICE OF LAW
- Frontmatter
- Contents
- Table of panels
- List of figures
- Preface
- Acknowledgments
- Terminology
- Table of Latin phrases
- List of abbreviations
- Table of cases
- Table of cases (European Court of Justice, numerical order)
- Table of legislative instruments
- PART I STARTING OFF
- PART II JURISDICTION
- PART III FOREIGN JUDGMENTS
- PART IV PROCEDURE
- PART V CHOICE OF LAW
- 22 Introduction to choice of law
- 23 Torts
- 24 Contracts: the principle of party autonomy
- 25 Contracts: legal policy and choice of law
- 26 Contracts: regulating business, protecting employees and helping consumers
- 27 Foreign currency
- 28 Property: tangible movables
- 29 Contractual rights and property interests – I
- 30 Contractual rights and property interests – II
- 31 Contractual rights and property interests – III
- PART VI EXTRATERRITORIALITY
- Bibliography
- Index
Summary
Introduction
In this and the following chapters, we consider intangible property. This may be created by contract – for example, a debt, bond, certificate of deposit, or bank account – or it may be non-contractual in origin – for example, an intellectual property right. In this area, contractual rights and property interests are hard to distinguish; so we deal with both. Indeed, many of the cases we will consider are primarily concerned with drawing this distinction. This chapter and Chapter 30 will be limited to the law of England and the Commonwealth; Chapter 31 deals with US law.
While it is generally accepted that contractual rights are governed by the law applicable to the contract (determined in accordance with the rules discussed in Chapters 24–27), there is a tendency to apply the lex situs rule to property interests. Hence the importance of distinguishing the two. If the issue is held to concern a property interest, a second question arises: what is the situs of the property in question?
Situs
The principle applied is that of effectiveness: it is said that the applicable law must be the law of the country that can most effectively deal with the matter. For this reason, the general rule in the case of a debt is that the applicable law – the lex situs – is the law of the country in which the debtor resides. What if he resides in two countries, as may often be the case where the debtor is a multinational corporation?
- Type
- Chapter
- Information
- International Commercial LitigationText, Cases and Materials on Private International Law, pp. 720 - 755Publisher: Cambridge University PressPrint publication year: 2009