LAW 2573 - Private International Law

North Terrace Campus - Semester 2 - 2020

This course will review the legal rules applicable to when the South Australian courts have and will accept jurisdiction to resolve a dispute. It will also deal with the law applicable to international transactions, including the law of contract, the law of torts, and equitable duties. It will also examine the recognition of foreign law in Australia as well as the recognition of Australian law overseas, in particular of law which purports to apply extraterritoriality. The jurisdiction of Australian courts over defendants resident in other countries and the mutual recognition of jurisdiction over Australian defendants by foreign courts will be studied.

  • General Course Information
    Course Details
    Course Code LAW 2573
    Course Private International Law
    Coordinating Unit Adelaide Law School
    Term Semester 2
    Level Undergraduate Law (LLB)
    Location/s North Terrace Campus
    Units 3
    Contact Up to 3 hours per week
    Available for Study Abroad and Exchange
    Prerequisites LAW1503 or LAW 1510; LAW 1507, LAW 1508
    Incompatible LAW 3512
    Restrictions Available to LLB and B.Criminology with B.Laws and BArts Advanced with B.Laws students only
    Course Description This course will review the legal rules applicable to when the South Australian courts have and will accept jurisdiction to resolve a dispute. It will also deal with the law applicable to international transactions, including the law of contract, the law of torts, and equitable duties. It will also examine the recognition of foreign law in Australia as well as the recognition of Australian law overseas, in particular of law which purports to apply extraterritoriality. The jurisdiction of Australian courts over defendants resident in other countries and the mutual recognition of jurisdiction over Australian defendants by foreign courts will be studied.
    Course Staff

    Course Coordinator: Dr Jessica Viven-Wilksch

    Dr Jessica Viven-Wilksch
    Adelaide Law School
    Email: jessica.viven-wilksch@adelaide.edu.au
    Location: Room 2.09, Ligertwood Building
    Telephone: (08) 8313 4676 (work)
    Course Website: www.myuni.adelaide.edu.au
    Consultations: Appointments can be made by booking an appointment slot on the MyUni calendar.
    Course Timetable

    The full timetable of all activities for this course can be accessed from Course Planner.

    There will be a three hour block each week. Each week will be structured in two main parts: on the one hand content delivery, and on the other a practical problem solving exercise and/or a discussion around a particular theme or reading. 

    The content delivery will be staggered so that the lecture theme in one week is the theme for the subsequent week's problem and discussion. This ensures that students have had the advantage of attending the lecture and absorbing the relevant material for that week's theme prior to engaging with it on a deeper level in the seminars.
  • Learning Outcomes
    Course Learning Outcomes
    On successful completion of this course students will be able to:
    1.  Analyse the foundational principles of private international law, undertake (self-directed) legal research, and evaluate legal information.
    2. Apply private international law rules to complex problems and issues, critique the operation of private international rules from a theoretical perspective.
    3. Structure and sustain concise and cohesive written arguments for a legal and professional audience.
    4. Conduct legal research and analysis both independently and cooperatively in an academic environment.
    5. Analyse the impact of private international law from comparative and international perspectives, and in the context of social and cultural diversity.
    6. Reflect on their abilities to effectively undertake accepted forms of legal reasoning and analysis to articulate in persuasive fashion reasoned solutions to issues arising from such scenarios.
    University Graduate Attributes

    This course will provide students with an opportunity to develop the Graduate Attribute(s) specified below:

    University Graduate Attribute Course Learning Outcome(s)
    Deep discipline knowledge
    • informed and infused by cutting edge research, scaffolded throughout their program of studies
    • acquired from personal interaction with research active educators, from year 1
    • accredited or validated against national or international standards (for relevant programs)
    1;2;4;5
    Critical thinking and problem solving
    • steeped in research methods and rigor
    • based on empirical evidence and the scientific approach to knowledge development
    • demonstrated through appropriate and relevant assessment
    1;2;4;5
    Teamwork and communication skills
    • developed from, with, and via the SGDE
    • honed through assessment and practice throughout the program of studies
    • encouraged and valued in all aspects of learning
    2;3;4;5
    Career and leadership readiness
    • technology savvy
    • professional and, where relevant, fully accredited
    • forward thinking and well informed
    • tested and validated by work based experiences
    1;2;3;4;5
    Intercultural and ethical competency
    • adept at operating in other cultures
    • comfortable with different nationalities and social contexts
    • Able to determine and contribute to desirable social outcomes
    • demonstrated by study abroad or with an understanding of indigenous knowledges
    1;3;4;5
    Self-awareness and emotional intelligence
    • a capacity for self-reflection and a willingness to engage in self-appraisal
    • open to objective and constructive feedback from supervisors and peers
    • able to negotiate difficult social situations, defuse conflict and engage positively in purposeful debate
    3;4;6
  • Learning Resources
    Required Resources
    There is a prescribed textbook  that will be supplemented by additional readings ( including chapters, articles, cases and statutes) during the semester. In compliance with the University Copyright’s policy, links to these readings will be made available on MyUni during the semester.

    The Prescribed Textbook for this course will be Reid Mortensen, Richard Garnett, and Mary Keyes Private International Law in Australia, (4th edition, 2019).
    Recommended Resources
    To deepen their understanding, students are encouraged to also access these resources. 

    BOOKS:
    • Martin Davies, Andrew Bell and Paul Le Gay Brereton, Nygh’s Conflict of Laws in Australia, (9th ed, 2013)
    •  Michael J Whincop and Mary Keyes, Policy and Pragmatism in the Conflict of Laws (2001, Ashgate)
    • Edward I Sykes and Michael C Pryles, Australian Private International Law (3rd ed, 1991, Law Book Co)
    • Lawrence Collins (gen ed), Dicey, Morris: the Conflict of Laws (15ed, 2017, Sweet & Maxwell). 
    • Peter North and James Fawcett, Cheshire and North’s Private International Law(15ed, 2017, Butterworths)
    JOURNALS:
    REPORTS: 
    • Australian Law Reform Commission, Choice of Law Report No 58 (1992)
    • Australian Law Reform Commission, Legal Risk in International Transactions, Report No 80 (1996)
    • Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2002)
    WEBSITES:
    Online Learning
    MyUni is the entry point to online learning at The University of Adelaide: http://www.myuni.adelaide.edu.au./

    This course will use MyUni for announcements, pre recorded videos, display of PowerPoint slides, lecture outlines and any other material required to be read for the lectures and seminars.

    This course will also require you to use MyUni for some assessment, including nline quizzes and assignments. Audio recordings of lectures where available will be posted. Students are expected to check MyUni regularly and often to keep up to date with these materials and additional learning resources that will be made available throughout the course. 
  • Learning & Teaching Activities
    Learning & Teaching Modes

    This course is taught in one weekly three hour block. During Week one, there will be an introduction to the course and some disucssion points. From week 2, the course will start with a seminar, followed by some content delivery. Each week will finish with a discussion on a current development or theory point.

    Lectures (90 min per week)

    Lecture will generally take the form of an outline of the topic and its key issues. Students are expected to keep up with the corresponding reading as indicated on MyUni. Outlines, slides and additional material will be provided on Canvas. Lectures will be recorded. 

    Seminars (60 min week)

    Seminars will concentrate on in-depth consideration of questions, including problem-solving, provided in advance of the seminar. Students are expected to read the cases and other materials and prepare answers to questions prior the class. 

    Seminars are not recorded.Seminars are an important component of your learning in this course and therefore it is in your interest to make every effort to attend them and participate. The communication skills developed in seminars by regularly and actively participating in discussions are considered to be important by the School, and are highly regarded by employers and professional bodies.

    Discussion point (30 min per week)

    This course's methods of thinking and solving problem questions are quite particular to the subject. Therefore, each week will finish with a discussion examples of problem solving and particular quotes to help students gain a deeper insight in the subject. Students will be encouraged to bring forward their own disucssion point throughout the semester to tailor the course to the interests of the cohort.

    Online activities

    Each student will be required to access pre recorded videos, powerpoint slides readings and links before the weekly class. Students will have to complete quizzes online during the course before attendng seminars. Students will also have to submit their assignment online through TurnItIn.
    Workload

    The information below is provided as a guide to assist students in engaging appropriately with the course requirements.

    The course requires a combined weekly commitment of 3 hours attending lectures and seminars or a total of 36 hours of formal class time across the semester. In addition to the time spent attending the lectures, there is a requirement that students prepare for the lectures and seminars. The University expects full-time students (i.e. those taking 12 units per semester) to devote a total of 48 hours per week to their studies. This means that you are expected to commit approximately 9 hours of private study each week per 3-unit course in addition to your regular classes.
    Learning Activities Summary
    Private International Law, also known as Conflict of Laws, regulates relations and disputes that involve more than one jurisdiction. We will see many examples but these are some possible situations:an Australian company making a contract with a french company, a Englishman booking a holiday in China, a German woman marrying her Canadian partner in the USA...

    In today’s global world where travel, business relations and private transactions are borderless, understanding the rules and mechanisms that regulate these relations is extremely relevant to the making of future lawyers.

    The topic can be of significant relevance to the practice of law, for which the course aims to prepare its students. Because Australia exists as a collection of separate legal jurisdictions and especially as Australia seeks to increase its international trade connections, understanding the impact of connections that may exist between South Australia and other legal systems is paramount.

    This course will expose students to problem-solving techniques relevant to this sub-discipline. These will include:
    - Determining the jurisdiction and the court able to hear a particular dispute
    - Determining the law applicable to legal situations
    - Determining the enforcement and recognition of judgements and decisions.

    The course will also provide an insight into international arbitration and the recognition by domestic courts of international arbitral awards.
    Case studies will be used throughout the course to show how these rules apply in selected areas of law, including contract law, tort law, family law, company law.

    Finally, throughout the course and because this area of law is also characterised by theoretical enquiry and scholarship, the course will challenge students to think about the development of this discipline and the rationale for the position taken by certain states. This means that there will be an opportunity to provide critical and theoretical analysis and reflect on the state of this discipline.
    Week 1  Introduction
    Week 2 Jurisdiction : Rationale and Personal Jurisdiction
    Week 3 Jurisdiction Immunities and Restraint
    Week 4 Law Applicable: Generalities and Exceptions
    Week 5 Law Applicable: Proof, Connections and Limits
    Week 6 Enforcement and Recognition of Foreign Judgments
    Week 7 International Arbitration
    Week 8 PIL and Contract
    Week 9 PIL and Tort
    Week 10 PIL and Family relations
    Week 11 PIL and Company Law
    Week 12 Conclusion and Revision
  • Assessment

    The University's policy on Assessment for Coursework Programs is based on the following four principles:

    1. Assessment must encourage and reinforce learning.
    2. Assessment must enable robust and fair judgements about student performance.
    3. Assessment practices must be fair and equitable to students and give them the opportunity to demonstrate what they have learned.
    4. Assessment must maintain academic standards.

    Assessment Summary
    Assessment item % of final mark     Dates Length Individual or Group Activity? Redeemable in exam? Learning Outcomes
    Quizzes 10% (5 x 2%)  Week 3: Wednesday 12 August 2020

    Week 5: Wednesday 26 August 2020

    Week 7: Wednesday 9 September 2020

    Week 10: Wednesday 14 October 2020

    Week 12: Wednesday 28 October 2020

    10 questions individual no 1; 2
    Mid term Assignment  30% Tuesday 22 September 5pm 2500 words individual no 2;3;4;5;6
    Final exam 60% Exam Period 2 hours individual no 1;2;3;4;5
    Assessment Detail

    10% ONLINE QUIZ

    This exercise will require students to answer 10 short questions in five separate quizzes on content covered in class during the previous weeks. These will count for 10% of the total grade for this course.

    The quizzes will open on Friday morning and close on Wednesday. Reminders and schedules will be provided on MyUni.

    Students will  only be permitted to attempt each quiz once.

    30% MID TERM ASSIGNMENT

    This piece of assessment will provide students the opportunity to demonstrate their ability to articulate different notions of the course. 
    The assessment will include a problem based question and a reseach component. Students will get feedback regarding their level of understanding of the course material and their research, written communication and problem solving and critical thinking skills. These skills will be further assessed in the final exam. 
    Students will work independently to complete a assignment, which will be due on Tuesday 22 September 2020 at 1pm. The assignment will be submitted online (instructions will be provided on MyUni) with a 2500 word paper. The assignment must be written in prose style (using complete sentences), adhere to grammatical rules and use correct spelling. The pages must be numbered. The essay should include a table of contents and a bibliography.


    Assessment Criteria
    • level of insight and innovative thought
    • depth of analysis and level of critical examination of the issues raised
    • clarity of expression
    • logical planning and sequence
    • evidence of comprehensive research and consideration of the relevant literature
    • demonstrated understanding of the comparative law method
    • demonstrated understanding of relevant legal materials
    • correct application of relevant material
    • overall presentation, including correct grammar, spelling and punctuation
    • use of resources in formulating the paper including proper acknowledgment and correct referencing
    Students will be advised of the results of this exercise  in Week 10. The results will be displayed on the course website. Students are encouraged to check their marks and notify the lecturer-in-charge of any discrepancies.

    All written work in the Law school is required to comply with the approved Law School style guide, The Australian Guide to Legal Citation.http://www.law.adelaide.edu.au/library/resources/style/. Hard copies of The Australian Guide to Legal Citation are on Reserve in the Law Library and can also be purchased from UniBooks. Please make sure you have looked at this before you submit any written work. 

    Extensions: Requests for extensions must be made electronically according to law school policy. Extensions will be granted only for unexpected illness, hardship or on compassionate grounds in accordance with University Policy. Work commitments, travel, holidays or sporting engagements are not unexpected circumstances.

    60% FINAL EXAMINATION:

    The final exam will be two hours in duration (plus 10 minutes reading time). The format of the exam will be a problem question based on notions seen in class throughout the semester. Further information regarding the Exam will be delivered to students closer to the date.

    The examination will be of open-book type: with the exception of any books, reports or other materials borrowed from the Library, students will be permitted to take into the examination venue any notes or texts of their choosing.

    Submission
    Students must retain a copy of all assignments submitted.

    The mid term assignment in this course is to be submitted electronically through Turnitin. Details for electronic submission through Turnitin will be provided with the assignment instructions. Turnitin is unable to process files in the .pages format, and Turnitin word counts are known to be inaccurate, which makes .pdf submissions undesirable (as it is harder to determine the number of words). For this reason, submissions to Turnitin are to be in Microsoft Word format (NOT in pdf).

    All written work in the Law school is required to comply with the approved Law School style guide, The Australian Guide to Legal Citation.

    Extensions: Requests for extensions must be made electronically according to law school policy. Extensions will be granted only for unexpected illness, hardship or on compassionate grounds in accordance with University Policy. Work commitments, travel, holidays or sporting engagements are not unexpected circumstances.

    Late Submission Penalties: When an assessment is submitted after the due date, without an extension, 5% of the total mark possible will be  deducted for every 24 hours or part thereof that it is late, including each day on a weekend and public holidays. For example, an essay that is submitted after the due date and time but within the first 24 hour period, and that has been graded at 63%, will have 5% deducted, for a final grade of 58%. An essay that is more than 24 hours late will lose 10%, etc. 

    Word Length Penalties: 5% of the total mark possible for a written assessment will be deducted for every 100 words (or part thereof) by which it exceeds a stipulated word limit. For example, a 3,000 word essay graded at 63% will have 5% deducted if it is between 3,001 and 3,100 words long for a final mark of 58%. If the essay is between 3,101 and 3,200 words long, 10% will be deducted for a
    final mark of 53%, etc. Word limits include all words in the text, in headings, in quotations, but exclude citations in footnotes. Any separate cover page, table of contents, bibliography or list of sources is excluded from the word limit. If the word limit is misstated, this may be regarded as academic dishonesty.
    Course Grading

    Grades for your performance in this course will be awarded in accordance with the following scheme:

    M10 (Coursework Mark Scheme)
    Grade Mark Description
    FNS   Fail No Submission
    F 1-49 Fail
    P 50-64 Pass
    C 65-74 Credit
    D 75-84 Distinction
    HD 85-100 High Distinction
    CN   Continuing
    NFE   No Formal Examination
    RP   Result Pending

    Further details of the grades/results can be obtained from Examinations.

    Grade Descriptors are available which provide a general guide to the standard of work that is expected at each grade level. More information at Assessment for Coursework Programs.

    Finality of Assessment Grades

    Students are advised that Course Coordinators will not enter into negotiations of any kind with any student regarding changes to their grades. It is irrelevant, in any given circumstance, that only a minimal number of additional marks are required to inflate a student’s grade for any individual assessment item or course as a whole. Pursuant to the University’s Assessment for Coursework Programs Policyand the Adelaide Law School Assessment Policies and Procedures, grades may only be varied through the appropriate channels for academic review (such as an official re-mark).

    Moderation
    In accordance with the University’s Assessment for Coursework Programs Policy, course coordinators ‘ensure that appropriate marking guidelines and cross-marking moderation processes across markers are in place’ in each course. Procedures adopted by Adelaide Law School to ensure consistency of marking in courses with multiple markers include:
    • assurance of the qualifications of markers, and their knowledge of the content covered in each course;
    • detailed marking guidelines and assessment rubrics to assist in the marking of items of assessment;
    • sharing of example marked assessments at various grade bands across markers;
    • reviewing of selected marked assessments from each marker by the course coordinator;
    • comparison of the marks and their distribution across markers;
    • automatic double-marking of all interim assessment receiving a fail grade, and of final assessments where a student’s overall result is a fail grade;
    • the availability of re-marking of assessments in accordance with Adelaide Law School’s Assessment Policies and Procedures.

    Approval of Results by Board of Examiners
    Students are reminded that all assessment results are subject to approval (and possible moderation/change) by the Law School’s Board of Examiners. Assessment results at the University are not scaled. Under the Assessment for Coursework Programs Policy, students are assessed ‘by reference to their performance against pre-determined criteria and standards … and not by ranking against the performance of the student cohort in the course’. However, under that same policy, the Board of Examiners (as the relevant Assessment Review Committee for courses at Adelaide Law School) is required to ‘ensure comparability of standards and consistency’ in assessment. On occasions, the Board of Examiners will form the view that some moderation is required to ensure the comparability of standards and consistency across courses and years, and accordingly provide fairness to all law students. All assessment results are therefore subject to approval (and possible change) until confirmed by the Board of Examiners and posted on Access Adelaide at the end of each semester.

    Final results for this course will be made available through Access Adelaide.

  • Student Feedback

    The University places a high priority on approaches to learning and teaching that enhance the student experience. Feedback is sought from students in a variety of ways including on-going engagement with staff, the use of online discussion boards and the use of Student Experience of Learning and Teaching (SELT) surveys as well as GOS surveys and Program reviews.

    SELTs are an important source of information to inform individual teaching practice, decisions about teaching duties, and course and program curriculum design. They enable the University to assess how effectively its learning environments and teaching practices facilitate student engagement and learning outcomes. Under the current SELT Policy (http://www.adelaide.edu.au/policies/101/) course SELTs are mandated and must be conducted at the conclusion of each term/semester/trimester for every course offering. Feedback on issues raised through course SELT surveys is made available to enrolled students through various resources (e.g. MyUni). In addition aggregated course SELT data is available.

    Student feedback The course is constantly being updated and revised to reflect the evolution of the law, to respond to student feedback, and to engage with the latest teaching practices. Student feedback is collected each time the course is run, including through SELT reports. Previous SELT reports, and staff feedback on them, are posted on the course MyUni site for students to view and consider.
  • Student Support
    The University Writing Centre provides academic learning and language development services and resources for local, international, undergraduate and postgraduate coursework students enrolled at the University of Adelaide.

    The centre offers practical advice and strategies for students to master reading, writing, note-taking, time management, oral presentation skills, referencing techniques and exam preparation for success at university through seminars, workshops and individual consultations.

    Lex Salus Program
    Lex Salus (law and wellbeing) is an initiative of the Adelaide Law School aimed at destigmatising mental health issues; promoting physical, mental and emotional wellness; building a strong community of staff and students; and celebrating diversity within the school. It also seeks to promote wellness within the legal profession, through the involvement of the Chief Justice of the Supreme Court of South Australia, the Honourable Chris Kourakis, as the official Patron of the program.

    Students can participate in the Lex Salus program by attending barbecue lunches, pancake breakfasts, knitting and crochet circles, seminars, guest speakers, conferences and other activities. Our Facebook page, website and regular all-student emails promote upcoming events, and have tips and information on wellness.

    Our Lex Salus YouTube channel also includes videos on topics like managing stress, and interviews with LGBTQ lawyers and their supporters which celebrate diversity and individuality. Students who commit to 10 hours of volunteering with Lex Salus in one year can have their service recognised on their academic transcript and through a thank you morning tea with the Chief Justice and law school staff.

    Student Life Counselling Support
    The University’s Student Life Counselling Support service provides free and confidential service to all enrolled students. We encourage you to contact the Student Life Counselling Support service on 8313 5663 to make an appointment to deal with any issues that may be affecting your study and life.
  • Policies & Guidelines

    This section contains links to relevant assessment-related policies and guidelines - all university policies.

    Academic Honesty
    Academic dishonesty is a serious act of academic misconduct. All students must be familiar with the University’s Academic Honesty Policy.

    Academic dishonesty is a serious matter and is treated as such by the Law School and the University. Academic dishonesty (which goes beyond plagiarism) can be a ground for a refusal by the Supreme Court of South Australia to admit a person to practice as a legal practitioner in South Australia.

    Academic honesty is an essential aspect of ethical and honest behaviour, which is central to the practice of the law and an understanding of what it is to be a lawyer.
  • Fraud Awareness

    Students are reminded that in order to maintain the academic integrity of all programs and courses, the university has a zero-tolerance approach to students offering money or significant value goods or services to any staff member who is involved in their teaching or assessment. Students offering lecturers or tutors or professional staff anything more than a small token of appreciation is totally unacceptable, in any circumstances. Staff members are obliged to report all such incidents to their supervisor/manager, who will refer them for action under the university's student’s disciplinary procedures.

The University of Adelaide is committed to regular reviews of the courses and programs it offers to students. The University of Adelaide therefore reserves the right to discontinue or vary programs and courses without notice. Please read the important information contained in the disclaimer.