Chapter 13: FINANCIAL COLLATERAL AND THE CONFLICT OF LAWS
In England we tend to refer to private international law as ‘conflict of laws’, hence the title of this chapter. Private international law concerns those aspects of a domestic legal system that apply to matters with a cross-border element. In other words, private international law is not a body of international principles, but instead a body of domestic legal principles or what is sometimes referred to as ‘domestic law’ in contrast to ‘international law’, that is, public international law. Public international law concerns the relations between sovereign States. Domestic law applies within a State and concerns the relations between private actors in the State and between a private actor and the government of that State. Private international law falls clearly within the latter category. A financial collateral arrangement with a cross-border element (and to which, therefore, English or Scottish private international law rules potentially apply) is referred to in this chapter as a ‘cross-border financial collateral arrangement’. The cross-border element may arise in one or more ways. The parties to the arrangement may be incorporated in different jurisdictions or principally regulated in different jurisdictions or subject to main insolvency proceedings in different jurisdictions. The collateral may be located (or deemed located) in a jurisdiction other than the jurisdiction of the collateral-provider and/or located in more than one jurisdiction.
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