Mary Elizabeth Keyes

Group Learning in Law

Working effectively in groups in higher education has important theoretical, practical and pragmatic justifications. Yet group work remains under-utilised in formal tertiary legal education. Individualism heavily dominates students’ educational experiences and law school curricula. Recent research suggests that a far greater role for cooperative learning is warranted, and greatly improves student learning outcomes. Skills in group work are also highly sought after by the employers of law graduates. In this article, we outline the objectives and processes of collaborative learning, emphasising the benefits in terms of student outcomes. We also discuss the implications of the general research into group work by reference to our own practices in facilitating this kind of learning in legal education. We argue that, despite some practical difficulties which are commonly associated with group work, this kind of learning environment offers significant advantages over individual work which cannot otherwise be realised. It also offers significant benefits to teachers in terms of satisfaction and efficiency. Therefore we encourage other legal educators to use and evaluate group work as part of their formal course and curriculum design.

Australia: Foreign Law in Australian International Litigation: Developing the Common Law

The Australian courts are often required to consider the application of foreign law, especially in international civil litigation. The application of foreign law generally arises if one party relies on the foreign law, in which case that party bears the onus of proving the content and general interpretation of the foreign law. Most of the cases involve interlocutory applications. Foreign law is regarded as a question of fact, although one of a hybrid kind. Because of its characterisation as a question of fact, foreign law must be proven. At common law, this was usually done by expert evidence; legislation now facilitates the proof of documents which establish the foreign law. Often, both parties tender expert evidence as to the relevant foreign law. Sometimes, the evidence of experts conflicts, and sometimes it does not adequately establish the content of the foreign law. In the absence of proof, the court may apply a presumption that foreign law is the same as forum law, which justifies applying forum law to the issue, but Australian courts are becoming more reluctant simply to apply this presumption. There have been some recent and progressive innovations which facilitate the proof of foreign law, including the possibility of appointing a referee to determine the applicable foreign law, and the use of direct court-to-court communication in a small number of areas, including the Hague Judges Network. The Australian law requires further development, which seems more likely to occur if there were greater international cooperation in this area.

Jurisdiction Agreements: Exclusive, Optional and Asymmetrical

The paradigm of the jurisdiction agreement designates a single, exclusive forum, allowing each party to determine, in advance of a dispute, the forum for litigation. The principles governing the enforcement of jurisdiction agreements are largely designed for this model. Some parties draft agreements that differ from this model, including agreements that purport to nominate multiple courts with “exclusive” jurisdiction, and unilateral optional agreements giving one party an option to select the forum after a dispute arises. These features raise the question of whether principles developed for the exclusive model regulate jurisdiction agreements that depart from it. This article explores the approach to exclusivity under the Hague Choice of Court Convention, the Brussels I Recast, and at common law. We demonstrate that non-uniquely “exclusive” and unilateral optional jurisdiction agreements are uncomfortably accommodated within and inconsistently treated by these regimes, comparing, particularly, the acceptance of unilateral optional agreements in England with their rejection in France.

International civil legal co-operation

1 This article proposes that Commonwealth countries should work together to achieve a greater level of co-operation in resolving international civil disputes. The purpose is to facilitate international trade and development, to improve access to justice, and to simplify, expedite and reduce the costs of international litigation. Existing arrangements between Commonwealth countries are limited, complex, outdated and inefficient. This article proposes the development of a Commonwealth Scheme for Co-operation in International Civil Matters, a proposal which was accepted by Commonwealth law ministers at their meeting in Sydney, Australia in July 2011. 1This article is based on a paper presented at the Meeting of Commonwealth Law Ministers and Senior Officials in Sydney, Australia, 11–14 July 2011, at which the recommendation proposed in this article, that ministers request the Commonwealth Secretariat to develop a scheme for co-operation in civil matters, was adopted; Meeting of Commonwealth Law Ministers and Senior Officials ‘Final Communiqué’ (Sydney, Australia 11–14 July 2011) paras 14–16 accessed 5 August 2011.

Statutes, Choice of Law, and the Role of Forum Choice

There is a long-standing debate in the Anglo-Australian conflict of laws concerning the interaction between statutes and the choice-of-law process. English and Australian commentators and courts tend to favour the view that this interaction depends on whether the legislation in question is a forum statute. If so, according to this view, the forum court should consider first whether the forum statute applies, prior to considering whether the law of the forum is the law of the cause. This article critically analyses that view. It argues that it undermines important objectives of choice of law and is inconsistent with the fundamentally internationalist nature of the conflict of laws. This article advocates the orthodox method of determining whether generally worded forum legislation applies, by reference to the normal choice-of-law process. This article draws attention to the relationship between mandatory rules and the priority which is often given to forum statutes. It also emphasises that the method of applying forum legislation independently of the normal choice-of-law rules is capable of manipulation by unilateral choice of forum. While courts and commentators have noted the relationship between the forum in which a dispute is heard and the effect that will be given to particular legislation, the influence of choice of forum has attracted relatively little attention in the literature on the interaction between statutes and choice of law. This article is in five sections. Section B describes the different types of statutory provisions that may be in issue in international disputes, in order to set the context of the analysis in section C. In section C, the two incompatible methods for determining the application of statutes in transnational litigation are described, and the justifications for each method are critically examined. Section D addresses the relationship between claimants’ choices of forum and the application of statutes, and shows that the principles of jurisdiction do not effectively control the application of forum statutes. Section E is a conclusion, which identifies the implications of the argument in this article for legislatures and courts. The focus of the analysis in this article is upon Australian law and practice. April 2008 Journal of Private International Law 1

Order, Illumination and Influence: Dicey, Morris & Collins on the Conflict of Laws, Fourteenth Edition (Book Review)

It is a pleasure to read for the purpose of review the fourteenth edition of this important and substantial work. The size of Dicey, Morris & Collins on the Conflict of Laws1 alone,2 to say nothing of its venerated status and the eminence of its editors, makes its review a somewhat daunting task. Happily, these two volumes are beautifully presented and expressed. The coverage of this work is extraordinarily comprehensive, in the range of issues addressed, in the depth and detail of analysis, and in the range of countries whose law is considered. Both as a reference and as a work in which to immerse oneself more profoundly, its reputation for excellence will be enhanced and entrenched by this new edition. Almost a century ago, Geldart noted that in this work, Dicey “not only reduced to order one of the most intricate and technical branches of our law, and illuminated it with an unrivalled wealth of comment and illustration, but he has exerted a potent influence on its development”.3 This dual function of imposing order on the existing law and influencing the development of the law has distinguished this work since. Both functions have been challenged by the growth in impact of legislation on the conflict of laws. The most remarkable feature of the new edition is how profound that influence has become. This review article is in eight sections. Section B considers the scope, purposes and audiences of Dicey, Morris & Collins. In section C, the significant changes to the content of this edition are outlined; and some aspects that have been October 2007 Journal of Private International Law 355

Corporation, Contract, Community: An Analysis of Governance in the Privatization of Public Enterprise and the Publicization of Private Corporate Law

To say that managers should be accountable to the market only begins the analysis. The problematic downside to this glib norm is that a volatile market can be a fickle master who may regularly override the superior judgment of his manager-servant. Thus, the central question from a public law perspective is how much accountability is too much. John C Coffee, Jr l The last two decades of corporate law scholarship in the United States have been marked by the ascendancy of law-and-economics research, the centrepiece of which is the contractarian theory of the corporation and the corporate law.2 Contractarians seek to explain the corporation as the focal point for a process of contracting between