6 points, SCA Band 3, 0.125 EFTSL
Postgraduate - Unit
Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.
Postgraduate programs are based on a model of small group teaching and therefore class sizes need to be restricted.
Not offered in 2019
For postgraduate Law discontinuation dates, please see http://www.monash.edu/law/current-students/postgraduate/pg-jd-discontinuation-dates
For postgraduate Law unit timetables, please see http://law.monash.edu.au/current-students/course-unit-information/timetables/postgraduate/index.html
This course provides a comparative overview of the Australian and European approach to transnational litigation. Students are made familiar with transnational applications of private law, and discuss the rules regarding jurisdiction, applicable law, and recognition and enforcement. Focus is on commercial law. Family law and personal relations often also trigger transnational disputes. While these may be referred to in passing, they are not part of the core of this course. The course specifically addresses not just the reality of transnational litigation. It also emphasizes the potential for employing conflict of laws in procuring jurisdiction and applicable law in the best interest of the parties. The general introductory part of the unit will provide student with a "bird's eye view" of transnational litigation, covering issues such as the fundamental concept, nature, development, sources and key processes of private international law, the standard 'connecting factors', characterization, renvoi and the 'incidental' issue. Forum shopping and forum non conveniens will also be compared across civil and common law jurisdictions. A more detailed comparative examination of key transnational legal issues will following, including jurisdiction in 'civil and commercial' matters, questions on applicable law (Contract and Torts), international insolvency, international succession (inheritance), and recognition and enforcement of judgements. The final part of the unit will examine current issues, such as corporate social responsibility and conflicts.
Upon completion of this unit, students will be able to:
- Demonstrate an advanced and integrated understanding of:
- The complexities of transnational litigation, regulatory competition and policy issues;
- The fundamental areas of transnational litigation legal knowledge, and the underlying principles and concepts, in an international and comparative context, including how courts in Australia and the EU accept jurisdiction, identify applicable law, and recognise and enforce judgments from foreign jurisdictions; and
- The broader contexts within which transnational legal issues arise, including relevant principles, and values of justice and ethical practice in a transnational setting;
- Engage in critical analysis and make reasoned and appropriate choices amongst alternatives across jurisdictions, which includes being able to investigate, analyse and appreciate how these distinct approaches (civil vs common law) impact upon commercial reality, governmental priorities in policy and regulation, and regulatory competition between jurisdictions in a transnational context.
- Apply legal reasoning and research to generate appropriate jurisprudential and practical responses to legal issues that canvass contemporary developments in law, and its professional practice, including consideration of the impact of conflict of laws, and private international law more broadly, on issues of wider regulatory relevance, such as human rights, environmental protection, and the rule of law.
- Apply intellectual, technical and creative practical skills to address the distinct approach of jurisdictions to the questions posed in a range of transnational litigious settings, from a comparative law point of view.
- Demonstrate enhanced oral and written communication skills that are effective, appropriate and persuasive for a legal audience, as well as facilitating a collaborative working environment in a transnational legal context.
One research assignment (3,750 words): 50%
One moot with written (1850 words) and oral submissions: 50% (25% and 25% respectively)
24 contact hours per teaching period (either intensive, semi-intensive or semester long, depending on the Faculty resources, timetabling and requirements)