Private Law Theory

ABSTRACT
The idea that international law is received into the common law to some greater or lesser extent persists in contemporary accounts of the English constitution. In The Law Debenture Trust Corporation plc v Ukraine, however, a majority of the Supreme Court held – in circumstances ripe for its reception – that international law had no place in the English common law of duress and contractual defences. This note explains why, after Law Debenture, international law’s reception into English law seems practically impossible. It then sketches an alternative account of how international law can be invoked in English proceedings – never truly received into English law, but instead applied as the lex causae under a choice of law rule for inter-state issues – which proves more theoretically satisfying and practically meaningful, and which also provides a better path to the outcome reached in Law Debenture.

Marcus Teo, Anxieties about International Law: Law Debenture v Ukraine, Modern Law Review. First published: 8 February 2024.