The Transfer of Property in the Conflict of

This book provides a detailed and up-to-date exposition of English andScottish rules of choice of law in inter vivos transfers of property. It tracesthe development of the lex situs rule, and its application to inter vivosdealings with immovable property, tangible movable property (including thespecial case of cultural property), and intangible movable property (includingindirectly held securities).The author offers two alternative models of suggested choice of law rules inproperty, introducing a greater degree of flexibility into choice of law rulesin property, and formulates even-handed solutions to the complex problems ofspace, time and policy which arise in this area of the conflict of laws.

Table of Cases

xv

Table of Legislation and Conventions

xxvii

Introduction Choice of Law Methodology

1

(8)

The Distinction Between Movable and Immovable Property

9

(23)

The importance of characterization

1

(19)

Defining the situs

20

(23)

Defining the `law' of the situs: renvoi

43

The Transfer of Immovable Property

32

(44)

The land taboo

1

(14)

Jurisdiction and choice of law: fusion of the rules?

15

(15)

Cracks in the monolith: in personam jurisdiction

30

(21)

Cracks in the monolith: particular instances

51

(25)

Property and divorce

51

(17)

Property in relation to persons lacking capacity

68

(8)

Property in relation to succession

76

(1)

The Transfer of Tangible Movable Property

76

(32)

Applicable law: general principle

2

(9)

Previously contending laws

3

(4)

The situs theory

7

(4)

Applicable law: an examination of particular issues

11

(12)

Alienability

13

(4)

Capacity to transact

17

(2)

Formal validity

19

(3)

Competing claimants

22

(1)

Recognized exceptions to the situs rule

23

(85)

Winkworth v Christie, Manson & Woods Ltd: vice over virtue?

24

(36)

Glencore International v Metro Trading: more oil on troubled waters?

60

(18)

Conclusion

78

(30)

The Contract / Conveyance Borderland

108

(13)

Immovable property

1

(4)

Movable property

5

(116)

The Treatment of Cultural Property

121

(23)

The nature of the problem

1

(22)

Lord Elgin's exploits: enlightenment or embezzlement?

3

(8)

The Lakota Ghost Dance Shirt

11

(2)

The Nazi cases: confiscation or constraint?

13

(9)

The commercial link

22

(1)

The solutions

23

(17)

The international arena: the 1970 UNESCO Convention

24

(3)

The international arena: Dealing in Cultural Objects (Offences) Act 2003

27

(2)

The international arena: the 1995 UNIDROIT Convention

29

(2)

The international arena: the 1993 EU Directive

31

(4)

The Nazi cases: the Spoliation Advisory Panel

35

(5)

The problem with the solutions

40

(104)

The Spoliation Advisory Panel

40

(2)

The international conventions

42

(2)

The practical solutions

44

(4)

The situs rule: the tensions

48

(96)

The Assignment of Intangible Movable Property

144

(28)

Choice of law and the assignment of intangible movable property: assignability

6

(5)

Applicable law

11

(56)

The distinction between contractual and noncontractual assignments

12

(22)

Particular issues

34

(7)

The distinction between original-parties disputes and remote-parties disputes

41

(22)

The distinction between voluntary and involuntary assignments

63

(4)

Conclusion

67

(105)

The Treatment of Securities Held with an Intermediary

172

(22)

Introduction

1

(6)

The traditional holding system

1

(1)

The modern holding system

2

(5)

The cross-border dimension

7

(34)

The traditional choice of law rule

8

(5)

EU legislative measures

13

(12)

The global market: the Hague Securities Convention

25

(16)

The way forward

41

(16)

Harmonization of choice of law rules

41

(9)

Harmonization of substantive law rules

50

(7)

Conclusion

57

(137)

The Situs Rule: For and Against

194

(35)

Supporting the monolith: arguments in favour of the situs rule

1

(15)

Accuracy of title records/registers

2

(1)

Protection of creditors and third-party purchasers

3

(2)

Commercial transparency

5

(1)

Territoriality

6

(2)

Ease of application

8

(3)

Certainty, uniformity of result, and party expectations

11

(3)

Legitimate interests of the situs

14

(2)

Bringing down the bastion: arguments against the situs rule

16

(61)

Accuracy of title records/registers

21

(1)

Territoriality

22

(1)

Certainty and uniformity of result

23

(8)

Party expectations

31

(5)

Reviewing the recognized exceptions to the situs rule

36

(16)

Prescription and limitation

52

(15)

Intangible movable property

67

(4)

Human rights: promoting the peaceful enjoyment of possessions?

71

(6)

Conclusion

77

(152)

Framing an Alternative Choice of Law Rule

229

(68)

The situs rule: escape devices

1

(2)

The objectives of a new choice of law rule

3

(8)

The structure of a new choice of law rule

11

(35)

A simple rule comprising a single-contact connecting factor

12

(2)

A rule comprising a single-contact connecting factor, coupled with exceptions

14

(6)

A proper law approach

20

(26)

Beyond the ineluctable: framing a new choice of law rule for property

46

(251)

Model 1: Draft Convention on the Law Applicable to the Transfer of Property

249

(29)

Model 2: The Transfer of Property (Applicable Law) Bill

278

(19)

Appendices Appendix A

297

(20)

Appendix B, I--IV

299

(4)

Appendix C

303

(1)

Appendix D, I--II

304

(3)

Appendix E

307

(1)

Appendix F, I--II

308

(2)

Appendix G

310

(1)

Appendix H

311

(1)

Appendix I

312

(1)

Appendix J, I--III

313

(3)

Appendix K

316

(1)

Bibliography and Abbreviations

317

(26)

Index

343

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The Transfer of Property in the Conflict of Laws Choice of Law Rules concerning Inter Vivos Transfers of Property

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Table of Contents

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