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Title: Aspects of the Scots international private law of property : towards a coherent general theory of choice of law
Author: Patrick, H. A.
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1994
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Abstract:
Selected issues in the Scots international private law of sale, securities and insolvency are considered, with a view to establishing a tentative general theory of choice of law relative thereto, which could in turn be applied to further issues in the Scots international private law of property and that of other legal systems. The traditional analytical distinction between real and personal rights is applied in a specialised concrete manner in order to ascertain by each consecutive lex situs the real rights which have been created and extinguished in a given item of property. In a situation in which it becomes necessary to rank several rights in and to such an item of property, all extant rights therein and thereto are compared and evaluated relative to each other in accordance with the lex situs at that time, having been 'translated' for such purposes. This simple structure derives from the requirements of third party certainty in property law. The basic choice of law structure is qualified in situations in which it is appropriate to do so, without detracting significantly from requirements of third party certainty. Thus, for example, property issues arising between the parties to transactions are characterised in personal terms and subsidiary choice of law rules are suggested regarding 'mobile' property and in situations such as import transactions and in which several rights derive from the same legal system, concerning all of which the straightforward lex situs rule appears inappropriate. Such subsidiary rules preserve third party certainty by operating after initial permissive reference to the lex situs. Similar rules provide for coherent analysis of funds in an international context, and, in particular, funds arising on insolvency.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.660430  DOI: Not available
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