Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














International - From: 1985 To: 1989

This page lists 25 cases, and was prepared on 08 August 2015.


 
 Chaudhary -v- Chaudhary; 1985 - [1985] FLR 476; [1985] Fam 19

 
 Anderson -v- City of Bessemer City, North Carolina; 19-Mar-1985 - 470 US 564 (1985); 53 USLW 4314; [1985] USSC 57; 105 SCt 1504; 84 L Ed 2d 518

 
 Def Lepp Music -v- Stuart-Brown; 1986 - [1986] RPC 273
 
Williams and Humbert Ltd -v- W & H Trade Marks (Jersey) Ltd [1986] AC 368
1986
HL
Lord Mackay of Clashfern, Lord Templeman
Taxes Management, International
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the trade marks, but the dispossessed proprietors sought to argue that the Spanish decrees should not be recognised because they were penal or confiscatory. The defence was rejected on the ground that the claimants' case did not depend on the Spanish decrees, but arose under the general law. The House considered the rule that an English court could not be used to enforce the collection of foreign taxes. Lord Mackay looked at the authorities: "From the decision in the Buchanan case [1955] AC 516 counsel for the appellants sought to derive a general principle that even when an action is raised at the instance of a legal person distinct from the foreign government and even where the cause of action relied upon does not depend to any extent on the foreign law in question nevertheless if the action is brought at the instigation of the foreign government and the proceeds of the action would be applied by the foreign government for the purposes of a penal revenue or other public law of the foreign State relief cannot be given. It has to be observed that in the Buchanan case the action was being pursued by a person whose title as liquidator of the company depended on his having been appointed by a petition to the court in Scotland on behalf of the Inland Revenue, that the ground of action was that the transactions being attacked in the proceedings in Dublin were ultra vires and dishonest because there existed at the time that they were effected in Scotland a claim by the Inland Revenue which the transactions were designed to defeat, and that if no such claim existed the defendant would have been entitled to retain the subject matter of the claim. Most important there was an outstanding revenue claim in Scotland against the company which the whole proceeds of the action apart from the expenses of the action and the liquidation would be used to meet. No other interest was involved. That this was regarded as of critical importance appears from what was said in the decision on appeal by Maguire CJ, at p.533
Having regard to the questions before this House in Government of India v Taylor [1955] AC 491 I consider that it cannot be said that any approval was given by the House to the decision in the Buchanan case except to the extent that it held that there is a rule of law which precludes a state from suing in another state for taxes due under the law of the first state. No countenance was given in Government of India v Taylor , in Rossano’s case [1963] 2 QB 352 nor in Brokaw v Seatrain UK Ltd. [1971] 2 QB 476 to the suggestion that an action in this country could be properly described as the indirect enforcement of a penal or revenue law in another country when no claim under that law remained unsatisfied. The existence of such unsatisfied claim to the satisfaction of which the proceeds of the action will be applied appears to me to be an essential feature of the principle enunciated in the Buchanan case [1955] AC 516 for refusing to allow the action to succeed."

Lord Templeman: "This rule with regard to revenue laws may in the future be modified by international convention or by the laws of the European Economic Community in order to prevent fraudulent practices which damage all States and benefit no State. But at present the international law with regard to the non-enforcement of revenue and penal laws is absolute."
1 Cites

1 Citers


 
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) 1986 ICJ Rep 12
1986
ICJ

International
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law.
1 Citers



 
 Gur Corporation -v- Trust Bank of Africa; 1987 - [1987] 1 QB 599

 
 Maclaine Watson & Co Ltd -v- International Tin Council; ChD 1987 - [1987] 3 All ER 886
 
Maclaine Watson & Co Ltd -v- International Tin Council [1988] 3 All ER 257; [1988] 3 WLR 1033
1988
CA
Nourse LJ
International
The court asked the extent to which international law forms part of the law of this country. Nourse LJ said: "For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of the law of this country. In all events if it can be shown there is an established rule which, first, is derived from one or more of the recognised sources of international law and secondly, has already been carried into English law by statute, judicial decision or ancient custom."
1 Cites

1 Citers



 
 Border and Transborder Armed Actions (Nicaragua -v- Honduras) (1986-1992); ICJ 1988 - [1988] ICJ Rep 69
 
Naviera Maritima Peruana SA -v- Compania Internacional de Seguros de Peru [1988] I Lloyd's Rep 1116
1988
CA
Kerr LJ
Arbitration, International
Unless agreed otherwise, the law of the "seat" of the arbitration will govern its conduct. The court overruled a first instance decision that an arbitration was to be conducted in Lima as the agreed forum (and therefore seat), but with English law as the lex fori. LJ Kerr referred to the complexities and inconveniences which such an arrangement would cause, including the impossibility or at best difficulty of the English Court exercising jurisdiction over an arbitration proceeding in Peru.
1 Citers


 
Brown -v- Superior Court (1988) 751 P 2d 470
1988


International, Damages
(Supreme Court of California) The court considered the 'market share doctrine' for apportioning liability between tortfeasors: "In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by their mothers a generation ago, making identification of the manufacturer impossible in many cases. We realised that in order to provide relief for an injured DES daughter faced with this dilemma, we would have to allow recovery of damages against some defendants which may not have manufactured the drug that caused the damage.…Each defendant would be held liable for the proportion of the judgment represented by its market share, and its overall liability for injuries caused by DES would approximate the injuries caused by the DES it manufactured. A DES manufacturer found liable under this approach would not be held responsible for injuries caused by another producer of the drug. The opinion acknowledged that only an approximation of a manufacturer's liability could be achieved by this procedure, but underlying our holding was a recognition that such a result was preferable to denying recover altogether to plaintiffs injured by DES.
It is apparent that the imposition of joint liability on defendants in a market share action would be inconsistent with this rationale. Any defendant could be held responsible for the entire judgment even though its market share may have been comparatively insignificant. Liability would in the first instance be measured not by the likelihood of responsibility for the plaintiff's injuries but by the financial ability of a defendant to undertake payment of the entire judgment or a large portion of it."
1 Citers



 
 Attorney-General for the United Kingdom -v- Wellington Newspapers Ltd; 1988 - [1988] 1 NZLR 129
 
Attorney-General for the United Kingdom -v- Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
1988


Commonwealth, International
(High Court of Australia) The A-G sought to prevent publication in Australia of the book Spycatcher, saying that it had been written by a former member of the British intelligence service and that it was derived from confidential material. Held: The court should not enforce foreign public laws, in so much as it would not allow enforcement outside the territory of the foreign sovereign of claims based on or related to the exercise of foreign governmental power. Though it was difficult to identify the foreign laws or rights which fell within the general principle, the majority suggested that, rather than refer to "public laws", it would be more apt to refer to "public interests" or "governmental interests" that is to claims enforcing the interests of a foreign sovereign which arise from the exercise of certain powers peculiar to government. This claim for relief "arises out of, and is secured by, an exercise of a prerogative of the Crown, that exercise being the maintenance of the national security. Therefore the right or interest asserted in the proceedings is to be classified as a governmental interest. As such, the action falls within the rule of international law which renders the claim unenforceable".
1 Citers



 
 Shearson Lehman Brothers Inc -v- Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2); HL 1988 - [1988] 1 WLR 16
 
Maclaine Watson & Co Ltd -v- International Tin Council (No. 2) [1989] Ch 286; [I988] 3 WLR 1 190
1988
CA

International, Litigation Practice
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court's inherent jurisdiction. Milled J. refused the application under 0.48 but granted it under section 37. The defendant appealed. Held: The Appeal failed. The Judge's decision under the Rules was correct. The order was made against a "proper officer" of the ITC. Being a non- corporate entity there were no officers in the technical sense or the sense in which that word is used in the case of corporations. The court considered the inherent jurisdiction to compel disclosure of assets abroad.
1 Citers


 
Murray -v- United States [1988] USSC 147; 487 US 533; 108 SCt 2529
27 Jun 1988

Justice Scalia
International, Criminal Practice
USSC While surveilling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners' exit, saw that the warehouse contained a tractor-trailer rig bearing a long container.
Petitioners later turned over their vehicles to other drivers, who were in turn followed and ultimately arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents forced their way into the warehouse and observed in plain view numerous burlap-wrapped bales. The agents left without disturbing the bales and did not return until they had obtained a warrant to search the warehouse. In applying for the warrant, they did not mention the prior entry or include any recitations of their observations made during that entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana and other evidence of crime. The District Court denied petitioners' pretrial motion to suppress the evidence, rejecting their arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. Petitioners were subsequently convicted of conspiracy to possess and distribute illegal drugs. The Court of Appeals affirmed, assuming for purposes of its decision on the suppression question that the first entry into the warehouse was unlawful.
Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises, if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.
(a) The "independent source" doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States, [1920] USSC 22; 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. There is no merit to petitioners' contention that allowing the doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant.
(b) Although the federal agents' knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, 787 F.2d 736 (CA1, 1986), is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described.
1 Citers

[ USSC ]
 
J H Rayner (Mincing Lane) Ltd -v- Department of Trade and Industry [1989] Ch 72
1989


International

1 Citers



 
 Texas -v- Johnson; 1989 - (1989) 491 US 397
 
Hymowitz -v- Eli Lilly & Co (1989) 539 NE 2d 1069
1989

Wachtler CJ
International, Damages
(Court of Appeals of New York) The court considered the market share doctrine for apportioning responsibility between tortfeasors: "We hold that the liability of DES producers is several only, and should not be inflated when all the participants in the market are not before the court in a particular case. We understand that, as a practical matter, this will prevent some plaintiffs from recovering 100% of their damages. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant's liability beyond its fair share of responsibility."
1 Citers


 
Re State of Norway's Application (No 2) [1990] 1 AC 723
1989
HL
Lord Goff of Chieveley
Estoppel, International, Evidence
The government of Norway sought evidence here to support a claim for tax in Norway. Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim will not be enforced here, where the claimant is asserting a sovereign right or where the central interest of the claimant is governmental in nature, however, Lord Goff said: "It is of importance to observe that that rule is limited to cases of direct or indirect enforcement in this country of the revenue laws of a foreign state. It is plain that the present case is not concerned with the direct enforcement of the revenue laws of the State of Norway. Is it concerned with their indirect enforcement? I do not think so. It is stated in Dicey & Morris, at p. 103, that indirect enforcement occurs (1) where the foreign state (or its nominee) in form seeks a remedy which in substance is designed to give the foreign law extraterritorial effect, or (2) where a private party raises a defence based on the foreign law in order to vindicate or assert the right of the foreign state. I have been unable to discover any case of indirect enforcement which goes beyond these two propositions. Even so, since there is no authority directly in point to guide me, I have to consider whether a case such as the present should nevertheless be held to fall foul of the rule. For my part, I cannot see that it should. I cannot see any extraterritorial exercise of sovereign authority in seeking the assistance of the courts of this country in obtaining evidence which will be used for the enforcement of the revenue laws of Norway in Norway itself."
Lord Goff discussed the phrase 'civil or commercial matters', and said of itsuse in the 1856 Act: "Here we find the first mention in an Act of Parliament, at least in this context, of the expression "civil or commercial matter." It is plain that here the word "matter" is used as referring to the relevant proceedings; because in section 1 the "matter" is required (consistently with the long title and section 2 of the Act) to be pending before the foreign court or tribunal. This reinforces the natural inference that, in section 1 of the Act, the expression "civil matter" is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words "or commercial" so far as the law of this country is concerned: but it is not surprising to find these words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters."
Evidence (Proceedings in Other Jurisdictions) Act 1975 - Foreign Tribunals Evidence Act 1856
1 Cites

1 Citers



 
 United States of America -v- Inkley; CA 1989 - [1989] QB 255

 
 C -v- C (Minor:Abduction: Rights of Custody Abroad); CA 1989 - [1990] 2 AC 562; [1989] 2 All ER 465; [1989] 1 WLR 654; [1989] 1 FLR 403
 
Maclaine Watson & Co Ltd -v- International Tin Council [1989] 3 All ER 523
2 Jan 1989
HL
Templeman and Oliver LL
International, Company
The International Tin Council ("ITC") was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order. Held: As a legal person in the United Kingdom - rather than the states who were its members and the parties to the international treaty - the ITC was the contracting party in the contracts it had entered into with the appellant companies. There was no basis for holding the member states liable for its debts, and, even if in international law any such basis had existed, there would have been no basis for enforcing such a liability in a United Kingdom court. If under international law the (unincorporated) treaty made the ITC the agent of its members when contracting, this too was a liability which a United Kingdom court could not enforce, if it could not be found in the 1972 Order. A claim for the appointment of a receiver over ITC's assets, including any claims it might have under the treaty to be indemnified by its members in respect of its liabilities to the appellants, failed for similar reasons. An unincorporated treaty can create no rights or obligations in domestic law.
Lord Templeman stressed the inability of United Kingdom courts to enforce unincorporated "treaty rights and obligations conferred or imposed by agreement or by international law" though it suggests such courts might look at an unincorporated treaty "for the purpose of resolving any ambiguity in the meaning and effect of the Order of 1972".
Lord Oliver: "It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. . . . That is the first of the underlying principles. The second is that, "as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."
However he recognised exceptions: "These propositions do not, however, involve as a corollary that the court must never look at or construe a treaty. " and "it is well established that where a statute is enacted in order to give effect to the United Kingdom's obligations under a treaty, the terms of the treaty may have to be considered and, if necessary, construed in order to resolve any ambiguity or obscurity as to the meaning or scope of the statue. Clearly, also, where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract" and "Further cases in which the court may not only be empowered but required to adjudicate upon the meaning or scope of the terms of an international treaty arise where domestic legislation, although not incorporating the treaty, nevertheless requires, either expressly or by necessary implication, resort to be had to its terms for the purpose of construing the legislation . . . or the very rare case in which the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional need for internal legislation . . . " and "It must be borne in mind, furthermore, that the conclusion of an international treaty and its terms are as much matters of fact as any other fact. That a treaty may be referred to where it is necessary to do so as part of the factual background against which a particular issue arises may seem a statement of the obvious. But it is, I think, necessary to stress that the purpose for which such reference can legitimately be made is purely an evidential one. Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact. The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders, are not and they are not justiciable by municipal courts."
International Tin Council (Immunities and Privileges) Order 1972 - International Organisations Act 1968
1 Cites

1 Citers


 
Six Constructions Ltd -v- Paul Humbert R-32/88; [1989] EUECJ R-32/88
15 Feb 1989
ECJ

European, International, Employment
Europa Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that, as regards contracts of employment, the obligation to be taken into consideration is that which characterizes such contracts, in particular the obligation to carry out the agreed work . Where the obligation of the employee to carry out the agreed work was performed and had to be performed outside the territory of the Contracting States, Article 5(1) of the Convention is not applicable; in such a case jurisdiction is to be determined on the basis of the place of the defendant's domicile in accordance with Article 2 of the Convention.
[ Bailii ]

 
 North River Ins Co -v- American Home Assurance Co; 15-Mar-1989 - (1989) 210 Cal App 3d 108
 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.