Beyond the ineluctable : an examination of choice of law rules in property
This thesis comprises an examination of choice of law rules in property. The study is principally concerned with the Scottish rules of international private law, but these, in turn, rely heavily upon, and in many respects are indistinguishable from, the equivalent English rules. Indeed, they seem in places to be mutually dependent. An examination is conducted of choice of law methodology, including in particular, an analysis of the configuration of choice of law rules. Consideration is given to the role of the connecting factor, and to the definition thereof, in its spatial, temporal and dimensional contexts. Throughout the thesis, a contrast is drawn between the jurisdiction-selecting approach of Scottish and English international private law, and the rule-selecting techniques which are employed in the United States of America. Central to the thesis is an examination of the role and definition of the connecting factor in the particular context of choice of law rules in property. The study traces the development of the lex situs rule, and its application to dealings with immovable property, corporeal moveable property and incorporeal moveable property, as well as the special case of dealings with 'cultural property'. Arguments in favour of, and against, the lex situs rule, in these various contexts, are considered, and special attention is paid to instances of latent and patent avoidance of the lex situs rule. In order to integrate the methodology analysis with the detailed study of choice of law in property, two alternative Models of suggested choice of law rules in property are presented for consideration; Model 1 is intended to be a draft international instrument, whereas Model 2, the more moderate proposal, is intended only as a draft national measure. The Models seek to embody the author's desire to inject a greater degree of flexibility into choice of law rules in property, and to attempt to formulate even-handed solutions to the complex problems (of space, time and policy) which arise in this area of the conflict of laws.