Sydney Law Review
Foreign Act of State and Public Policy Exceptions: Peer International Corpn v Termidor Music Publishers Ltd
The question of whether forum public policy can be used in choice of law matters extends across many areas of private international law. The particular context in which public policy is discussed in this paper is with regard to its role in the foreign act of state doctrine, specifically that concerning foreign governmental expropriating decrees. The foreign act of state doctrine gives effect to the sovereignty of each jurisdiction by ensuring that any court will not question any foreign governmental decree that purports to affect property situated within its own territory. Conversely, any foreign decree that purports to have an extraterritorial effect, will not be recognised. Traditionally, public policy can be and has been used to exclude a foreign decree from recognition, despite it having effect within its own territory. But although it has been accepted as an escape device, it is generally only applied in cases with exceptional factual circumstances. The other function of public policy is that it can theoretically be used in a positive sense to allow the recognition of a foreign decree which has an extraterritorial effect. The application of public policy in this context is more uncertain. The recent English case of Peer International Cornv v Termidor Music Publishers Ltd  is an example of where the application of public policy as a sword was rejected by the court. This paper discusses the implications of the future role of public policy in the context of the foreign act of state doctrine and queries whether one can conclude that Peer is the final authority on this matter.
The claimants in this case, Peer International Corpn, Southern Music Publishing Inc and Peer Music Ltd (UK) were a part of an American owned group of independent music publishing companies. The defendants were Termidor Music Publishers Ltd and Termidor Musikverlag GmbH & Co KG. Before the Revolution in Cuba in 1960, Peer had acquired thousands of musical works from Cuban authors. The alleged ownership in copyright of these musical works by Peer was based on agreements that were signed in Cuba between the period of 1930–1950. These agreements were supplemented by confirmatory agreements that were later signed in 1989.
The defendants argued that they continued to own the exclusive licenses of the Cuban works within the United Kingdom. Termidor claimed their rights as licensees through the Editora Musical de Cuba (EMC), a Cuban entity which claimed to own the English copyright in the works under Cuban Law 860, and which was also a defendant in this case. Cuban Law 860 came into effect in August 1960 and sought to protect the rights of Cuban authors and composers and to approve agreements made between them and publishers. Under the provisions of Law 860, where any agreements were not presented for approval, or where the approval was not granted, the rights of the publishers were forfeited and the authors and composers were free to sign other agreements.
The defendants argued that during the 1930s and 1940s, the musicians made very little money through their musical works. It was alleged that Peer had sought to exploit these musicians by contracting with them for the copyright in the Cuban music for very little consideration. After the revolution in 1959, the government sought to prevent further exploitation of these works by creating organisations to administer and control music copyright and publishing. In the 1950s, Musicabana was established as the effective representative of the Cuban musicians and composers and it later evolved into EGREM in the 1960s. In 1993, the publishing department of EGREM separated and became the independent company of EMC, which took complete control of EGREM’s publishing rights. EMC argued that, in large part due to the activities of Peer, Law 860 was implemented to re-exert Cuban control over intellectual property rights owned by Cuban nationals and to prevent further exploitation by foreign companies.
Cuban Law 860 gave the governing board the power to approve any agreements that were signed between authors and publishers. Without such approval, the agreements would be null for all legal purposes. The law further provided that any contracts that had been signed between authors and publishers prior to the commencement of Cuban Law 860 must be presented to the board for approval. Any agreements that had not been presented or did not warrant approval would be considered to result in the forfeiture of all the rights of the publishers and thus the authors would be free to sign other contracts. The defendants argued that Peer had failed to seek approval from the board for its agreements between the Cuban composers, as required by Law 860, and as a result, no copyright in the Cuban works vested in them.
The proceedings in this case were essentially a dispute about the ownership of the United Kingdom copyright in the Cuban works. Peer’s claim to the works depended upon the agreements made between Peer and the Cuban composers between the 1930s and the 1950s. The defendants argued that they had ownership in the works pursuant to Cuban Law 860.
Three preliminary issues were involved at trial. First, whether the assignments of copyright relied upon by the claimants were initially valid under the relevant applicable law (without prejudicing what such law was); second, the effect of Cuban Law 860 on the assignments (assuming initial validity), and whether that provision was to be given effect in English law; and third, whether the ‘confirmation of rights’ documents obtained by the claimants were valid assignments or exclusive licences of the 1911 reversionary copyright under the relevant applicable law (without prejudicing what such law was).
In his judgment delivered on 11 December 2002, Neuberger J made three findings. First, that the initial agreements were effective to transfer the title to the English copyright in the Cuban works; second, that Cuban Law 860 was ineffective to deprive Peer of any copyright vested in them; and third, that although the confirmations were not effective to transfer title to the reversionary copyright vested in the heirs to the composers, they did have that effect when read together with the addenda. Consequently, Neuberger J found in favour of the claimants.
The defendant appealed on the ground that the judge had erred in holding that Cuban Law 860 did not affect the copyright in the United Kingdom. Neuberger’s decision was allowed to be appealed on the basis that the second issue raised a point of general importance that only had first instance authority.
The judgment of Neuberger J was upheld by the Court of Appeal on 1 July 2003. On the second point of appeal, the Court held that Cuban Law 860 governed the exploitation of intellectual property rights, divested the claimants of their copyright in Cuban musical compositions without compensation, and was confiscatory in nature. The Court also found that since the law purported to have an extra-territorial effect on intellectual property that was situated within the United Kingdom it could not be given effect. Moreover, no public policy exceptions were found, in this case, to affect the application of the lex situs rule that an English court would not give effect to the legislation of a foreign state if it affected property rights in the United Kingdom. Accordingly, Cuban Law 860 was held to be ineffective in divesting the claimants of the disputed copyright. Aldous LJ delivered the primary judgment, with which Latham LJ agreed. Mance LJ also concurred with the judgment, but delivered additional comments.
5. Reasons for the English Court of Appeal’s Decision
The defendants’ claim to ownership in the Cuban works was based on the transitional provisions in Chapter VIII, Decree 10 under Cuban Law 860. Decree 10 provided that:
10. Contracts signed between authors and composers of music or musical dramas and publishers, prior to this Act’s coming into force, should be presented within 60 days to the Cuban Musical Right Institute for the approval required. Those agreements that have not been presented or that do not warrant approval will be considered as having forfeited all rights of the publishers, and the authors and composers will be free to sign other contracts to cover the works previously covered by such (former) contracts.
The defendants argued that Peer had not sought approval under this decree and that under the Cuban Law, Peer had been divested of all ownership in the works. Aldous LJ found that this decree was confiscatory in nature and since it purported to have an extra-territorial effect on copyright situated in the United Kingdom, Cuban Law 860 would not be given effect. This was based on rule 120 of Dicey & Morris which states:
A governmental act affecting any private proprietary right in any moveable or immovable thing will be recognised as valid and effective in England if the act was valid and effective by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise.
There was some discussion as to whether or not Decree 10 was an expropriation law. The defendants argued that the law was not confiscatory, but rather existed to regulate contractual relationships between Cuban music composers and publishing companies in order to ensure the protection of the musicians. Aldous LJ rejected this submission and found that Law 860 was not an instrument ‘solely for the purposes of contractual regulation’: it was a law that was enacted to ‘control the exploitation of intellectual property rights’, with the particular effect of ‘divesting Peer of their copyright in certain Cuban works’. Aldous J therefore concluded that Law 860 had and intended to have extraterritorial effect within the United Kingdom.
The defendants also submitted that by reason of public policy, an exception should be made to rule 120. It was argued that rule 120 should be split into two facets. First, a court of the forum would recognise as valid and effective governmental acts relating to property situated in its territory. Second, a court of the forum would not recognise a foreign governmental act that purported to affect property extra-territorially. However, the defendants submitted that these limbs of rule 120 should be subjected to qualifications, such as the consideration of comity and public policy.
The defendants used Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) as an illustration of how these qualifications were applied to the first facet of rule 120. In that case, the House of Lords argued that an English court could have regard to international law in determining whether or not a foreign expropriating decree should be recognised. On the facts of that case, the English court had to determine whether or not effect should be given to a governmental expropriation law of Iraq that divested Kuwait of a number of aircrafts and which was enacted after Iraq had invaded Kuwait and stolen the property. The court, in Kuwait, held that giving effect to the foreign law would be wholly alien to fundamental requirements of justice as administered by an English court and would be contrary to public policy.
It was submitted that since the courts had refused to give effect to the foreign decree by using considerations of public policy in the Kuwait case, it was also possible for qualifications to be applied to the second facet of rule 120. That is, under considerations of comity and public policy, it was argued that a court of the forum should recognise a foreign law that had extra-territorial effect. As noted above, the defendants argued that Law 860 was an enactment that redressed contractual imbalances. It was argued that the assignments between Peer and the Cuban musicians during 1930–1950 were inequitable and oppressive for three reasons. First, the agreements contained no obligation on Peer to exploit the copyright despite the complete transfer of rights; second, no power was given to the composers to assign their rights or recover their copyright despite that fact that minimal consideration was paid; and third, the assignments were not limited in term. The defendants argued that such agreements would have been found void under the grounds of English public policy and cited the case of Instone v A Schroder Music Publishing Co Ltd as authority. Since Law 860 was implemented specifically to address such situations of contractual imbalance and since its policy was in line with English public policy, the defendants argued that the court should recognise the effectiveness of Law 860, despite it having an extraterritorial effect.
As noted above, Aldous LJ found that Law 860 was not purely an instrument of contractual regulation, but rather, was a law that was confiscatory in nature. While he accepted that Kuwait was an exception to the first facet of the rule, and acknowledged that Dicey & Morris had made it clear that these exceptions existed, he held that it could not be deduced from this that exceptions also existed for the second facet of rule 120.
The defendant relied primarily on the judgment of Atkinson J in Lorentzen v Lydden & Co Ltd. In that case, the defendants were a firm carrying on business in London which had agreed to charter a Norwegian vessel for the carriage of pulp. The Norwegian Government in Norway enacted a decree that requisitioned all ships registered in Norway. The curator sued the defendants for damages, arguing that they had repudiated the contract. However, the defendants argued that the site of the debt was England and under English law, the Norwegian decree was ineffective and did not pass ownership of the debt. Atkinson J held that the decree was not confiscatory in nature. He found that England and Norway were engaged together in a ‘desperate war for their existence’ and that ‘in accordance with the comity of nations’ and ‘the interests of public policy’, the decree should be given effect.
Aldous LJ disagreed with the statements of Atkinson J, stating that the judgment was contrary to public policy and to the numerous cases (of which will be discussed below) that had been decided on this matter. He also found that there was ‘no internationally accepted view on public policy as to assignments of copyright’. He agreed with the submissions of the claimants that any exception based upon public policy was:
wrong in principle because
(1) it would subordinate English property law to that of a foreign state;
(2) the rule would be founded and would operate by reference to public policy which could change from time to time and could be uncertain;
(3) it would require the English courts to assess the merits of foreign legislations;
(4) it would lead to intractable problems when the property was situated in a third state;
(5) it would require the court to balance one public policy against the public policy that states do not interfere with property situated abroad, and
(6) it would lead to great uncertainty.
Mance LJ agreed with this judgment and further emphasised that allowing public policy to be used in a positive sense as an exception to the lex situs rule would create instability and uncertainty.
|A.||Intellectual Property and Choice of Law|
One important issue that was not given sufficient attention in the judgments was the fact that the subject matter of concern in this case involved intellectual property rights. In the vast majority of situations, intellectual property rights are a creation by statute and are essentially the right of an owner to take action against others to prevent them from engaging in conduct without the permission of the owner. Patents, trade marks and copyright have all been classified as movable property. However, they differ from other movables in the sense that they have many of the characteristics of immovable property, the most important one being that the rights which are conferred by an intellectual property right must be territorially confined. From this argument, the situs of a copyright, trade mark or patent must be in the country whose statute governs its existence. Thus, an Australian patent governed by Australian statute must be situated in Australia. Similarly, the situs of a Community trade mark, which is granted under European law, must also be the European Community. Under private international law, it is not normally necessary to determine where a Community trade mark is situated because the relevant European legislation will contain express choice of law provisions.
Given that the situs of an intellectual property right is situated in the country under whose law it has come into being, it is in many respects immovable property, and thus, raises jurisdictional matters. It is long established that under the Moçambique rule of the common law, superior courts do not have the power to entertain proceedings where the subject matter concerns title to foreign land, the right to possession of foreign land, and trespass to foreign land. Thus, for example, in Hesperides Hotels v Muftizade, the plaintiffs were precluded from bringing proceedings in an English court for an action in trespass concerning foreign land. Note, however, that the plaintiffs were successful on their claim in relation to trespass to the goods of the hotel, as these were classified as movable property which is not limited by the Moçambique rule.
The Moçambique rule governs all immovable property, subject to a number of exceptions, which include the situation where the court has personal jurisdiction in equity or contract, or cases involving admiralty actions and succession. It may also be necessary to note that in NSW, the Moçambique rule has been abolished. Section 3 of the Jurisdiction of Courts (Foreign Land) Act  specifically provides that an action in NSW is not precluded merely because it involves foreign land or foreign immovable property. However, courts still reserve the power to apply the rule and will do so if the court thinks that NSW is not an appropriate forum in which to entertain the proceedings. A similar provision has been implemented in the ACT as well, though its application remains unclear, as the content of the provisions seem to reaffirm the Moçambique rule. However, outside NSW and the ACT, the rule continues to survive.
So far as intellectual property rights are concerned, as mentioned above, these rights share many of the characteristics of immovable property because they must be confined within the jurisdiction in which those rights arise. It follows that jurisdictional restrictions that apply to immovable property also apply to intellectual property rights. A leading case on this matter is Potter v The Broken Hill Proprietary Co. Paradoxically, this was not a case which concerned foreign land, as it involved an infringement of a patent which was situated within Australia. However, at the time, patent registration was still a state matter and had not been superseded by the Commonwealth Patents Act 1903. It was held that the validity of a patent that was granted in NSW was not justiciable in the courts of Victoria. The very existence of and title to the patent was dependent upon State legislation that was territorially limited and this distinguished it from other movable property. If this is true, then the Moçambique rule precludes jurisdiction over questions of title to, and validity of foreign patents as it does so for other immovables.
The principle in this case was extended by English law to matters involving international copyright in the case of Tyburn Productions Ltd v Conan Doyle. The court in this case approved and applied Potter v BHP. This case concerned whether an English court had the power to entertain proceedings, the subject matter of which was copyright situated in the United States. The English court found that it was a local action of the United States which was not justiciable in English courts. The English have also applied this principle to statute based trademarks.
In relation to Peer, the court seems to have overlooked the principle applied in Tyburn. Perhaps this was done because the subject matter of the case concerned a UK copyright arising from a UK statute that was being litigated in an English court. Had the copyright been situated in Cuba or in another foreign jurisdiction, the English would have had no jurisdiction to entertain the matter as they would have been precluded from doing so under the Moçambique rule, unless one of its exceptions applied.
|B.||Public Policy and its Implications|
The defendants’ submissions were in large part based on the argument that public policy should be used as an exception under facet two of Dicey and Morris’ rule 120, to give an extraterritorial effect to Cuban Law 860. As correctly raised by the defendant, public policy has been used in some instances as an exception to facet one of rule 120 in order to exclude a foreign expropriating law on the grounds that it would offend forum public policy. However, the circumstances in which an application of public policy be invoked can be far from certain. The court can only define the exact exclusion rule as each situation arises. Conversely, because of its uncertainty and ‘open-textured nature’ there is considerable scope for its application. From the cases which have been decided on the matter, the instances in which public policy grounds are invoked to exclude foreign laws can loosely be identified as those laws ‘which offend defined social, moral or political interests of the forum’.
As each political system reserves the power to apply this doctrine when they see fit, cases in the past have sometimes applied forum public policy in an extreme manner. For example, at one stage it was believed that ‘any foreign legal solution which was unknown to the forum must for that reason be contrary to public policy’. However, today courts generally take the view that solutions in other jurisdictions are not wrong simply because they are inconsistent with those that are applied in the forum.
Despite the uncertainty of its application, it is safe to say that the power to invoke forum public policy ‘should be exercised rarely and with abundant caution’. It is always important that, so far as it is possible, any act of a foreign state which governs property within its own territory should not be questioned by another forum. Indeed, Peter Nygh and Martin Davies have argued that: ‘the basic question [is] whether the law [of the forum] has an interest in applying its policy to a particular situation in order to defeat the transaction even though it may be valid according to the [foreign] law that ... applied [to the transaction].’
Nygh et al have identified three situations in which public policy arguments may be invoked by a court of the forum to exclude a foreign law: first, the protection of the domestic interests of Australia; second, the protection of the external interests of Australia; and third, the protection of moral interests of universal application.
A clear example of the third category is the case of Oppenheimer v Cattermole (Inspector of Taxes), where a German law existed to deprive German Jews of their nationality and expropriated their property. On the question of whether the seizure by the German government of this property situated within its territory should be recognized in England, the court held that a foreign law which purported to take away property on the grounds of race was a gross violation of human rights and such a seizure was not to be recognized. The other case, which was also raised by the defendant, was the case of Kuwait, where it was held that the use of armed forces by Iraq to invade a country and its expropriation of Kuwaiti property was a violation of fundamental prohibitions of public international law and should therefore not be recognised.
The defendants in Peer sought to rely on Kuwait to support their argument that public policy should be extended so that it could be used in a positive sense to allow the recognition of Cuban Law 860 extraterritorially. In particular, the defendants turned to the judgment of Atkinson J in Lorentzen where a decree which did not satisfy the lex situs or foreign act of state doctrine because it was outside the territory, was given recognition by the court on the grounds that it was a situation of national emergency. This case received criticism in subsequent cases and was held by Aldous LJ in Peer to have been ‘wrongly decided’.
In his decision, Aldous LJ referred to a number of other cases to support his finding. A judgment on which Aldous LJ heavily relied is the case of Bank voor Handel en Scheepvaart NV v Slatford. In that case, a Dutch bank deposited a quantity of gold in London before the start of the 1939–1945 war. In May 1940 the Netherlands were invaded by the Germans and the Royal Netherlands Government established itself in the UK. With the approval of the UK Government, the Royal Netherlands Government exercised their powers from London and issued a decree which had the effect of transferring property, such as the gold bars, to the Netherlands Government. The purpose of the decree was to protect the people in the Netherlands who were then under German authority. On the question of whether the Netherlands’ decree was effective in transferring the gold bars to the Dutch state, it was held that it was only effective for property that was situated within the taking state (the Netherlands) and did not apply to property that was situated in England. The court rejected any public policy arguments and the judgment of Atkinson J in Lorentzen. Devlin J held that if the judgment of Atkinson J was to be upheld, there would be three significant implications. First, lead to the formulation of a new head of public policy which was not a matter to be taken lightly. Second, it would effectively use public policy in a manner that was not in accordance with precedent. That is, on the one hand, public policy would be used to restrict acts thought to be harmful to the community; and on the other, public policy would be used in a novel way and in a true sense to validate acts which would otherwise be invalid. Third, it would require the court to consider the political merits of the decree itself.
To the extent that Aldous LJ’s judgment is in support of the principle in Bank voor, one could conclude that it stands for a ‘black-letter rule’ that public policy can never be used in a positive sense to allow the recognition of a foreign decree which purported to have extraterritorial effect. Both cases seem to clearly indicate that the judgment of Atkinson J in Lorentzen was wrongly decided. However, what seems to be ignored is that the factual circumstances between the Peer case and those that existed during the time of Lorentzen and Bank voor are qualitatively very different. This point was briefly mentioned in the judgment of Mance LJ. It seems that the stark difference in the factual circumstances of these cases could be a reason why public policy was or was not invoked. The Lorentzen case took place in a time of war in which the countries in question were found by Atkinson J to be in a ‘desperate war for their existence’. In such a situation, in the opinion of Atkinson J, public policy should be able to be used in a positive manner to recognize the extraterritorial effect of the decree. Arguably, since Bank voor also took place in a similar wartime context, the same reasoning should have applied, yet Devlin J refused to allow public policy to be used in such a manner. However, it is important to note that the Bank voor case had the benefit of hindsight. Devlin J’s judgment was based on post-war reasoning and it is not unlikely that in times of peace, it would be much easier to reject public policy considerations in favour of applying the foreign act of state doctrine.
On a qualitative level, the factual circumstances in the case of Peer are even more different than those between Lorentzen and Bank voor. Here, we are simply looking at a Cuban law purporting to have an extraterritorial effect on copyright property situated in the UK. This is far removed from those situations in times of war, such as those in Lorentzen and to some extent Bank voor, where arguably a sense of urgency may justify an application of the public policy argument. Thus, in so far as a rule of thumb is concerned, perhaps it is premature to state with certainty that as a result of Peer, public policy should never be used in a positive sense or as a sword to allow the recognition of a foreign decree purporting to govern property outside of its territory. In the other respect however, traditionally, public policy has only been used as an exclusionary method in all areas of private international law and perhaps Peer is further support for that principle.
From these cases, we can see that the application of the use of public policy as an exception to the foreign act of state doctrine lacks certainty and predictability. However, it is generally agreed that the doctrine should be limited to exceptional circumstances such as those that existed in cases such as Lorentzen or Kuwait. The issue surrounding the question of whether the doctrine can be used in a positive sense to allow an extraterritorial effect of a foreign decree seems to have been settled in Peer, but as argued above, perhaps the circumstances of the case were not exceptional enough to invoke the doctrine and it is questionable whether this is the final authority on the issue.
The law on the question of whether public policy exceptions can be applied to exclude foreign decrees is less uncertain. Courts have accepted that the doctrine can be used as an exception, but again, seemingly only in cases of exceptionality. Dicey and Morris have argued that ‘In the conflict of laws it is ... necessary that the doctrine should be kept within proper limits, otherwise the whole basis of the system is liable to be frustrated’. The message that public policy should applied with caution is illustrated by Cardozo J:
We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. ... The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their door unless it would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.
A number of other American authorities have continued to apply this strict application such as Banco Nacional de Cuba v Sabbatino where it was held that the validity and effectiveness of what the Cubans did could not be called into question in a court of NSW because of the foreign act of state doctrine even if the Cubans violated forum public policy. This is an example of an extreme application of the foreign act of state doctrine. This narrow approach has continued to be applied as illustrated by the recent case of Worldwide Minerals Ltd v Republic of Kazakhstan which upheld the principle in Banco Nacional.
Much of Australia’s authority on this issue is based on English law as the matter has not really ‘arisen within a court of Australia’. English law has taken a narrow approach, for which it has often been criticised. Specifically, it has been suggested that such an approach has been caused by a willingness of the English to sacrifice their own politics in order to favour international comity. It is possible that the decision to refuse recognition of Iraq’s decree in Kuwait indicates a change in the attitude of English law. However, given the state of relations between the United Kingdom and Iraqi governments, international comity, in all likelihood, could hardly have been a major concern for the English judges.
To conclude, it has been suggested that the doctrine of public policy used as an exception to the foreign act of state doctrine may indicate that the conventional choice of law rules in Anglo-Australian conflict of laws may need to be reconsidered. Indeed, Carter argues that the need for an exception highlights the shortcomings of the existing rules. He has also argued that the current choice of law rules, beyond those which only relate to foreign act of state, are ‘too rigid and broad in scope’. Alternatively, it has also been suggested that the nature of the conflict of laws process should be altered from the present approach based on the selection of the jurisdiction which supplies the governing law, to a process where the appropriate governing rules themselves are selected. Reform aside, the application of public policy as an exception to the foreign act of state doctrine has and should continue to apply, at least on an exclusionary basis, though very cautiously. So far as using it positively is concerned, the principle in Peer indicates that an exception can not be made to this rule, although it should be kept in mind that perhaps this was decided in the particular circumstances of that case.
[*] (2004) 2 WLR 849.
* LLB, final year student, Faculty of Law, University of Sydney. The author would like to thank Ross Anderson for his valuable insights. Any errors remain the author’s.
 The ambit of public policy in private international law is very broad. For example, public policy has played a role in the context of Renvoi, the recognition of foreign marriage dissolutions and annulments, and the recognition of foreign judgments.
 Princess Paley Olga v Weisz  1 KB 718.
 See, for example, Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5)  UKHL 19;  2 AC 883 (hereafter Kuwait); Oppenheimer v Cattermole (Inspector of Taxes)  AC 249 (hereafter Oppenheimer).
 See, for example, Lorentzen v Lydden & Co Ltd  2 KB 202.
 (2004) 2 WLR 849 (hereafter Peer).
 Id at 854–855.
 Id at 855.
 Id at 856.
 Kuwait, above n3.
 Peer, above n5 at 856.
 (1974) 1 WLR 1308.
 Peer, above n5 at 857.
 (1942) 2 KB 202 (hereafter Lorentzen).
 Peer, above n5 at 858.
 Id at 865.
 Martin Davies, Sam Ricketson & Geoffrey Lindell, Conflict of Laws: Commentary and Materials (1997) at 596.
 Lawrence Collins (ed), Dicey & Morris on The Conflict of Laws (13th ed, 2000) at 935.
 Id at n23 at 934.
 Ibid citing Re Usine de Melle’s Patent  HCA 32; (1954) 91 CLR 42 at 48.
 Id at 935.
 Tilbury et al, below n39 at 916 citing British South Africa Co v Companhia de Moçambique  UKLawRpAC 53;  AC 602.
  AC 508.
 Nygh et al, below n46 at 141, 146 citing Tritech Technology v Gordon  HCA 12; (2000) 48 IPR 52.
 Tilbury et al, below n39 at 917 citing The Tolten  P 135.
 Re Duke of Wellington (1947) Ch 506; affd (1948) Ch 118.
 1989 (NSW) ss3,4,5.
 Id at s4.
 Civil Law (Wrongs) Act 2002 (ACT) s220.
 Re Doyle; Exp Brien v Doyle (!993)  FCA 77; 41 FCR 40.
  HCA 88; (1906) 3 CLR 479 (hereafter Potter v BHP).
 Michael Tilbury, Gary Davis & Brian Opeskin, Conflict of Laws in Australia (2002) at 917.
 Id at 918.
  Ch 75 (hereafter Tyburn).
 See, for example, LA Gear Inc v Gerald Whelan & Sons Ltd  FSR 670 at 674.
 Kuwait, above n4.
 Peter Nygh & Martin Davies, Conflict of Laws in Australia ( 7th ed, 2002) at 345.
 Tilbury et al, above n39 at 375.
 Nygh et al, above n46 at 345.
 See, for example, Re Macartney  1 Ch 522.
 Loucks v Standard Oil Co of New York (1918) 120 NE 198 at 201.
 Tilbury et al, above n39 at 375.
 Nygh et al, above n46 at 346.
 Oppenheimer, above n3.
 Bank voor Handel en Scheepvaart NV v Slatford  1 QB 248 (hereafter Bank voor).
 Peer, above n5 at 858.
 Bank voor, above n56.
 Peer, above n5 at 866.
 Id at 869.
 Collins, above n23 at 81.
 Loucks v Standard Oil Co (1918) 120 NE 198 at 201–202.
  USSC 48; (1964) 376 US 398 (hereafter Banco Nacional).
  USCADC 167; (2002) 296 F 3d 1154.
 Tilbury et al, above n39 at 394.
 Id at 395.
 PB Carter, ‘The Role of Public Policy in English Private International Law’ (1993) 42 ICLQ 1 at 1.
 Id at 10.
 Tilbury et al, above n39 at 395.