76112 Australian Private International Law
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2025 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): (70311 Torts AND 70616 Australian Constitutional Law) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses. See access conditions.
Description
We live in a globalised world: Australians travel overseas extensively, buy goods and services online, and our updates on social media platforms like Facebook and Twitter get read, re-posted and re-tweeted in Australia and around the world. Everyday actions may bring us into contact with legal systems beyond Australia's. As the way we live our lives changes and becomes more globalised, it is inevitable that the interaction between the Australian legal system and overseas jurisdictions arises in everyday legal practice. Australian private international law is the body of Australian legal principles which govern the interaction between Australian law and overseas jurisdictions. In this subject we focus on the interaction of Australian and overseas legal systems, especially the international jurisdiction of the Australian courts, the recognition and enforcement of foreign judgments and decrees, and the problem of choice of law as it arises with respect to areas of contract, torts and inter vivos property transactions. As issues of private international law often arise in the context of litigation, this subject also introduces students to advocacy skills in a private international law context with a strong emphasis on mirroring real-world application of private international law in oral advocacy and mooting.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Demonstrate knowledge of how a foreign element in a legal problem or dispute is dealt with through application of legal principles relating to jurisdiction, recognition and enforcement of foreign judgments and choice of law; |
|---|---|
| 2. | Demonstrate critical thinking with respect to foreign elements in a legal problem or dispute, and evaluate legal and academic materials relating to foreign law elements from a variety of different perspectives; |
| 3. | Demonstrate skills in oral advocacy and argument sufficient to present a case relating to private international law as advocate before a moot court; |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
Teaching and learning strategies
Strategy 1: Preparation
Students prepare for class by completing set readings ahead of each class which inform their contributions to class discussion, giving them a basis from which to articulate and engage with contentious issues in Australian Private International Law. Preparation involves ‘active reading’ – rather than passively reviewing readings, students are encouraged to make notes from each reading summarising key points, questions and topics of controversy to raise in class. Quality and depth of preparation will be reflected by the sophistication of contributions in class and ability to adapt to the dynamic nature of class discussion. Students have the opportunity to master the substantive issues of private international law by way of a variety of activities: viewing a series of online videos before class, examination of set readings prior to class, active participation in in-class interactive discussion, preparation and presentation of oral case presentations in advance of and during these classes, and peer feedback.
Students also prepare for in-class oral presentations and mooting by watching a series of short online videos and completing set readings on advocacy which are then further analysed and critiqued by students in class and group work discussion
Strategy 2: Enriched engagement with case law
Students are encouraged to engage with relevant cases beyond mere mastery of facts, ratio and obiter, through class discussion and an oral presentation of case analysis. Through students acting as an appellant or respondent in presenting a case or alternately arguing why a case should be distinguished students uncover the context for key cases, pertinent controversies regarding each decision, and how cases may be distinguished for the purpose of legal argument. Oral presentation of these cases and in-class feedback provided by the lecturer and peers help the students develop their oral advocacy skills.
Strategy 3: Mooting to simulate practice as an advocate in a Private International Law context
Students engage in mooting in teams, conducting legal research, preparing written submissions and making oral legal submissions in a simulated court room environment. By undertaking mooting, students gain practical exposure to applying Private International Law in a dynamic, real-world context. Students are required to watch a series of online videos on oral advocacy skills and mooting prior to coming to class. Key points from these videos are then consolidated through a series of interactive group discussions in class. Student mastery of oral advocacy is then demonstrated in the oral case presentation and mooting assessment tasks. To excel, students must master not only the substantive law, but also the procedural requirements of mooting, including effective and persuasive delivery of oral arguments and responses to counter-arguments, and demonstrating adherence to appropriate court room etiquette and court room protocols. Feedback on student performance, including persuasiveness of argument and relevance of law used, occurs via judges’ feedback from the bench and oral questions of each student as well as through opposing counsel challenging their arguments.
Strategy 4: Feedback (including early feedback)
Regular and timely feedback is provided throughout the subject so as to ensure students maximise and improve their learning with each class.
Early feedback: This is provided from the first class via student self-assessment of their class participation, which is immediately marked by the lecturer after each class and returned to the student at the start of the next class. Lecturers may agree with student self-assessment, or disagree – providing feedback as to how a student may improve.
Ongoing feedback: The process of cross-referencing and marking students’ self-assessments after each class by lecturers provides ongoing feedback to students throughout the subject, allowing them regular opportunities to improve from class to class.
Oral case presentations: The oral case presentation (Assessment Task 1) provides an opportunity for feedback in a number of ways. One student will be allocated to present the case. A second student will respond to the first student’s presentation by presenting oral arguments as to when, how or why the case could be distinguished. Both students will then receive feedback and critique of their presentations from their class peers. Comprehensive feedback and integration of presentations into the themes of the subject will then be provided by the lecturer.
Mooting: Dynamic feedback occurs during the moot in three ways: opposing counsel challenging one’s arguments, questioning from the bench, and the judge responding to the moot and providing reasons for judgement. Comprehensive feedback occurs via the lecturer’s/judge’s feedback at the conclusion of the moot, and written feedback for each team’s written submissions by the lecturer.
Subject Delivery
Australian Private International Law is delivered via a series of online videos, weekly classes and a final day of moots to be held in the moot court room in the Law Faculty. The class schedule consists of weekly classes each of 3 hours in duration and a final scheduled moot class.
Assessment
Assessment task 1: Oral Case Presentation / Response
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 3 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.4.1 and LAW.5.1 |
|---|---|
| Weight: | 30% |
| Length: | Each student’s presentation must not exceed 10 minutes in duration (1,500 words equivalent) |
| Criteria: |
|
Assessment task 2: Moot
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 3 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.4.1 and LAW.5.1 |
|---|---|
| Weight: | 50% |
| Length: | Written submissions: 2 pages max, or approx. 1000 words; Moot: 20 minutes in total for each team. |
| Criteria: |
|
Assessment task 3: Oral Communication and Class Participation
| Objective(s): | This task addresses the following subject learning objectives: 3 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.5.1 |
|---|---|
| Weight: | 20% |
| Length: | Length is not stipulated for this task as participation is marked on the quality of a student’s contributions rather than on the quantity or frequency of oral commentary. |
| Criteria: |
A rubric is also available on UTSOnline that describes these criteria for each level of achievement. |
Required texts
A series of articles, case extracts and relevant legislation are provided in the reading list on Canvas. Details on the reading and prepartion for each class are provided on the canvas page for each module.
While all the readings will be available on line it is strongly recommended that you also purchase a copy of the textbook for this subject. This textbook lays out an analysis of the cases and legislation we will examine in a systematic manner and will help you to understand how these cases fit together into a a coherent body of law.
The textbook that is strongly recommended is Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law In Australia (5th Edition-2023), LexisNexis Butterworths. A copy of this textbook is also available in closed reserve in the library.
References
Textbook References:
Another very useful reference book for this subject is M. Davies, A.S. Bell, P.L.G. Brereton, and M. Douglas, Nygh's Conflict of Laws in Australia (10th edition, 2020). LexisNexis Butterworths. A copy of this book can be accessed online via the reading list in Canvas.
There are a range of other textbooks and references available on Private International Law in the UTS library. But please note Private International Law is very jurisdiction specific. While the UTS library holds numerous books on Private International Law many of these relate to overseas jurisdictions. For this subject only books and journals related to Australian law are useful.
Other resources
The Commonwealth Attorney General's Department maintains a useful web site on some aspects of Private International Law which has links to some resources in this area. You can access this web page at https://www.ag.gov.au/international-relations/private-international-law