Stress

This unit examines stress. Stress manifests itself in pitch, duration, and loudness. In a word, the stressed units, that is, syllables or moras, tend to have higher pitch, longer duration, and increased amplitude, though their importance as markers of stress varies from language to language. As this unit shows, stress is predictable. Languages can differ in how and where stress is assigned, but they exhibit shared characteristics. This unit, which comprises three chapters, is devoted to this phenomenon. Chapter 17 presents stress data from Pintupi, Wargamay, and Choctaw. These three languages are selected to highlight the typical patterns of stress and their crosslinguistic variations. This chapter also introduces the Metrical Theory (MT) of stress and shows how it handles stress in the three languages. Two key claims of MT are that syllables are organized into larger constituents known as feet and that feet are responsible for the rhythmic property of stress. This metrical account of stress is juxtaposed with the view of stress based on Optimality Theory (OT) in Chapter 18. We show that though OT abandons the rule approach to foot construction, it draws significant insights from MT. These two chapters present a comparison of MT and OT and highlight their strengths and drawbacks. Chapter 19 analyzes the interactions between stress and epenthesis in Yimas, whose normal stress assignment seems to be both impacted and not impacted by epenthesis. This chapter highlights the problem posed by this pattern interaction problem for Derivational Theory and some of the advantages for OT. Through these three chapters, this unit develops your understanding of the phonetic properties and phonological patterns of stress and showcases how patterns of stress are identified and analyzed.

Introduction

‘Jurisdiction’ is a word capable of several meanings but is here used to denote the power of the English courts to hear and decide cases brought before them. The rules on jurisdiction include both whether there is power and how that power should be exercised. For the purpose of determining the jurisdiction of the English courts, actions are of two kinds:

1. actions in personam: these are actions brought to compel a defendant to do or to refrain from doing something or to pay damages. Jurisdiction over such actions depends primarily, though not exclusively, on some connection between the parties (usually the defendant), the subject matter of the dispute and England; or the parties may have chosen to submit to the determination by the English court. This chapter is mainly concerned with actions in personam;

2. actions in rem: these are actions against land, ships and aircraft when jurisdiction depends upon the presence of the land, ship or aircraft in England.

It should be added that, in some cases, such as divorce or nullity of marriage, sometimes called ‘actions quasi in rem’ since they involve determination of personal status, jurisdiction is entirely statutory. These are not dealt with in this work.

Introduction

As we have seen, choice of law rules are rules of English law which identify the substantive law to determine a dispute between litigants. Choice of law rules have the general form of a legal category and a connecting factor. This chapter will be concerned with the legal category of contract. Which system of legal rules is to apply to resolve the issue which has arisen? For example, the litigants may be disputing whether one has properly performed the contract, or whether that party has a sufficient excuse for non-performance. The litigants may contest whether there is a contract at all, or what the terms of the contract might be. A party to the contract may argue that it was not properly entered into in writing, or that the party lacks capacity to conclude such a contract. The term of the contract relied upon might be a term which is ineffective as being unfair to a consumer or employee. All these issues are clearly contractual for choice of law purposes, although there may be some characterisation difficulties with rules which might be categorised as evidentiary (such as presumptions when a contract is signed) or non-contractual (such as rules requiring contracting in good faith). The contractual choice of law rule is generally multilateral and jurisdiction selecting. Therefore, the applicable law identified is a system of domestic law rules of contract which could be of any national legal system and does not directly take account of the policy interests underlying the particular rules to be applied.

Introduction

The availability of enforcement of any judgment awarded against a defendant is an important part of the decision whether and where to sue that defendant. A judgment which cannot be enforced against assets of the defendant is probably not worth the cost of obtaining it. Judgments may not only be enforceable in the state whose courts granted it. The enforcement mechanisms of other state's courts can be available to enforce not only that state's judgments but also foreign judgments. The English courts are particularly receptive to permitting an action to be brought on a foreign judgment as if it were a debt for which summary judgment is available. That is now the only avenue; a judgment creditor is no longer able to bring a fresh action in England on a claim which has been decided by another court. If a judgment debtor has paid the foreign judgment then the debt is discharged. Importantly, the decision of the foreign court is not re-opened, even if the English court would have come to a different decision.

Recognition of a foreign judgment can also be useful. Some judgments are incapable of enforcement, for example, because they are declaratory. A foreign judgment may have already been satisfied by the judgment debtor paying the sums due under the judgment. The judgment is then recognised as existence of a debt that has been discharged. The parties are bound by the decisions made by the foreign court if the judgment is recognisable. This means that the foreign judgment must satisfy the requirements under the relevant regime. It must also be between the same parties and on the merits. A foreign judgment can have three effects. First, the foreign judgment is treated as res judicata so that there is an end to litigation on the dispute. The English court applies res judicata to foreign judgments in the same way as the doctrine applies to English judgments. This is quite wide-ranging.

Introduction: personal connecting factor for choice of law and jurisdiction

When the English court is faced with an issue with an international element, it may use a choice of law rule to identify the system of law whose rules will determine the particular issue. Choice of law rules usually have the form of an issue plus a connecting factor. Choice of law rules dealing with personal issues often share a connecting factor. Originally this personal connecting factor was a person's domicile, but in modern times domicile has been replaced in some choice of law rules with residence. In some cases the personal connecting factor is either the domicile or the residence of a person. One can argue that domicile and residence are the same concept but with slightly different rules of attribution. Domicile means ‘home’ and for choice of law purposes it is a person's permanent home. Residence clearly has the same meaning, particularly when qualified by ‘habitual’, which is usual for choice of law rules. The intention behind the move towards residence might have been to simplify the identification of the connecting factor. However, identifying either a domicile or a habitual residence can be difficult in any but the most simple cases. Where is a homeless person resident? Where is ‘home’ for a student who lives at University during the academic year and spends half the rest of the year with each parent who are now divorced? Nevertheless, the identification of the personal connecting factor is critical. It is the law of the domicile which determines, in principle, whether a man or woman has legal capacity to marry, and how the estate of a deceased person is to be distributed.

Late development

Compared with other branches of English law, a systematic body of rules on the conflict of laws only came into being at a comparatively late stage. The earliest cases appear to have concerned the enforcement of foreign judgments. An eighteenth-century case, which is still of binding authority, concerned the validity of a foreign marriage. Lord Mansfield who was pre-eminent in the development of the body of commercial law in the latter half of the eighteenth century, gave judgments concerning foreign contracts, torts, and the duty to give effect to, and sometimes deny effect to, foreign laws.

It can be said with some confidence that the subject began to burgeon in the latter part of the nineteenth century, which at the same time saw the development (after 1857) of family law and the coming into existence of a coherent body of commercial law, since that period witnessed a rapid expansion of international trade and financial transactions. In those years, the courts evolved more sophisticated rules as regards domicile, the validity of marriages and recognition of foreign legitimations, formulated a doctrine of the proper law of a contract, laid down the rules concerning liability for torts committed abroad and adopted clear rules on the recognition and enforcement of foreign judgments. In order to formulate these principles the English courts had to rely more on the writings of jurists than was usual with them; Huber and the American, Story J, are notable examples. These were indeed foreign jurists, as A. V. Dicey did not publish his Conflict of Laws until 1896, the first English writer to set down the rules in a systematic fashion and to formulate a theoretical basis for them, extracting a coherent set of principles.

The subject matter

The English conflict of laws is a body of rules whose purpose is to assist an English court in deciding a case which contains a foreign element. It consists of three main topics, which concern respectively: (i) the jurisdiction of an English court, in the sense of its competence to hear and determine a case; (ii) the selection of appropriate rules of a system of law, English or foreign, which it should apply in deciding a case over which it has jurisdiction (the rules governing this selection are known as ‘choice of law’ rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations.

If the case contains no foreign element, the conflict of laws is irrelevant. If an Englishman and woman who are both British citizens, domiciled and resident in England, go through a ceremony of marriage in England and later, when they are both still domiciled and resident here, the wife petitions the English court for a divorce, no foreign element is involved. No problem of jurisdiction arises and any questions about the validity of the marriage or the grounds on which a divorce can be granted, as well as any procedural or evidential matters, are all governed by English law alone. The same is true if two Englishmen in England contract here for the sale and purchase of goods to be delivered from Oxford to Cambridge with payment in sterling in London, and the seller later sues the buyer and serves him with a claim form in England.

Jurisdiction under national law (including staying of proceedings)

Introduction

The traditional English rules of jurisdiction were originally based directly on notions of territorial sovereignty. Once a person was within the territorial jurisdiction of the English court that person had impliedly accepted that he or she was subject to the adjudication of the English courts in the same way as he or she would be subject to criminal jurisdiction of the state. The person could be served here with notice of the proceedings and that was sufficient to give the English courts jurisdiction. This form of jurisdiction remains and the rules by which defendants can be personally served within the territory of the English courts are now contained in rule 6.3 of the Civil Procedure Rules. Obviously, there were difficulties when a defendant left the territorial jurisdiction, having run up debts or committed torts here. Over the course of the nineteenth century, therefore, the Rules of the Supreme Court extended the ways in which the English court would hear a case even when the defendant was not present within the territorial jurisdiction to be served with the writ. These originally were known as ‘Order 11’ rules, but more recently have been updated and are found in rules 6.36 and 6.37 and Practice Direction 6B (which is annexed to rule 6 of the Civil Procedure Rules). These ‘service out’ rules were always subject to the discretion of the English court. The court realises that in some way they are exorbitant, risking dragging a defendant to England to defend an action which might not be as strong as the claimant alleges and which might not have a sufficient connection with England to justify the English court hearing the case. Nevertheless, the House of Lords has restated its view that ‘the jurisdiction of the English courts can be extended over persons abroad to cover new causes of actions and situations’.

John Collier has been a supervisor, mentor, colleague and most importantly friend of mine for over twenty-five years. When he asked if I would like to do a new edition of his ‘magic book’, I did not hesitate. Although the last edition had been rather overtaken by the outpouring of new cases from the English courts and the CJEU, and the flood of new legislation from the European Union, it remained a book on my shelf to which I often turned for guidance. I hope to have maintained his clarity and brevity of expression as far as possible. I fear I may have failed his high standards in some places. Gender-neutral language has been used as far as possible, though I regret that occasionally that practice makes for less than fluent sentences.

Regrettably, some of the chapters of the old work have had to be jettisoned. Important conflict of laws issues in succession, marriage and family law have been eclipsed in many courses in conflict of laws by the burgeoning and complex questions arising in jurisdiction, in choice of law in contractual and non-contractual obligations, and in property. Not only has there been a great deal of new EU legislation but the cases themselves have become more complicated and need more exposition to make them understandable. Judgments are longer. All of these factors have combined to militate against a shorter book. The interface between public international law and private international law and theoretical considerations in conflict of laws deserve whole books to themselves, which have already been written by people much better versed in the subject than I am. They too had to be excised. The chapter on domicile and habitual residence remains; partly as those concepts remain important in EU legislation and partly due to their inherent interest.

Introduction

Issues concerning property are often fascinating, if difficult, and even more so in conflict of laws than in domestic law. Whether one has a right to occupy a house and keep other people out of it, or whether the bicycle you have just bought is likely to be taken back as it has been stolen, or how one might use shares in a company as security for a loan all raise questions of property. This chapter will not cover questions of succession (transfer of assets on death of the owner) or marriage (some legal systems have a community property regime) or insolvency (what is to happen to a bankrupt's property).

Characterisation

As this chapter is concerned with choice of law the first matter to resolve is the characterisation of the issue. To take the simplest example of the sale of a bicycle by A to B, this transaction has both contractual elements and proprietary ones. The choice of law rules are different for the contractual and proprietary issues. Also the choice of law rules are different for movable and immovable property, for voluntary and involuntary transfers of property, and for intangible and tangible property.

Introduction

As we have seen, choice of law rules are rules of English law which identify the substantive law to determine a dispute between litigants. Choice of law rules have the general form of a legal category and a connecting factor. This chapter will be concerned with a broad legal category of non-contractual obligations. This category includes what in English domestic law we consider tortious liability; the duty to make restitution in cases of unjust enrichment; liability for precontractual negotiations; infringement of intellectual property rights; liability for unfair competition and defamation. It probably also includes equitable obligations. Which system of legal rules is to apply to resolve an issue which has arisen? For example, the litigants may be disputing whether X is liable in negligence or whether no duty arose or the line of causation was broken. What about the effect of contributory negligence? What if the various laws which could apply differ in the way in which accidents are dealt with? Some systems have a no-fault scheme and some cap the level of damages. How are joint tortfeasors to be dealt with? What is the effect of insurance? These questions are frequent in motor accident claims, which also are the most common source of cases in conflict of laws. Other tort issues could include the question of whether an employer is vicariously liable for the employee's action. What is the effect of a failure of precontractual negotiations? What happens to the claim if the victim dies? Or the tortfeasor? What if the tortfeasor acts in one country and the victim is damaged in another? What if there is a contract which excludes or caps the liability of the tortfeasor?

Introduction

We have seen that the choice of law process is intended to identify the most appropriate and just law whose rules will determine the outcome of a particular case. More than any other set of rules, choice of law rules have to cover widely differing circumstances and as a result are often elucidated in a less specific, more flexible way than domestic law rules. This can make their application uncertain or unpredictable. Even where the choice of law rule is clearly applicable, the courts appear willing to use a number of avoidance techniques to achieve a different result. The most obvious exception to a choice of law rule is that of public policy. Where the application of a foreign law leads to a result which is contrary to English public policy, the foreign law will not be applied. It is not always clear what law is applied instead; sometimes the claim relying on foreign law fails, sometimes the defence based on foreign law fails and sometimes English law is applied to determine the case. Resort to public policy should be relatively rare as it frustrates the purposes of choice of law. In particular the courts need to be careful to recognise the international character of the case and be wary of relying on merely domestic public policy concerns. Few cases should need the blunt instrument of public policy to achieve justice. The other, more fine-textured, methods of avoiding or steering the choice of law process include a characterisation of a matter as one of procedure rather than substance, or adopting a renvoi to English law, or applying a mandatory rule of another law than that which would otherwise be applicable. These are part of the choice of law process rather than true exceptions.