It is not possible in this paper to examine all the separate issues whose classi-
fication as substantive or procedural raises difficulties. Accordingly, we will
examine three specific areas where there has been recent development, or where
development continues, in the application of the substance and procedure rule.
These are areas that best illustrate the modern application of the rule and where
the line between substance and procedure may be drawn today. The first area is
limitations of actions, where there has been a complete about face in the applica-
tion of the rule and which may rightly be considered a prelude of things to
come. The second area that will be examined is that of remedies and, more
specifically, limitations on damages, proprietary remedies, tracing and specific
performance. The field of remedies is seen to straddle substance and procedure
and the specific areas identified are good, modern examples where the rule may
be tested. Finally, we will examine the area of equity (or equitable rights and
remedies), whose symbiosis with private international law raises great difficulty
and remains unsettled. There are of course many other important, specific areas
in the field of substance and procedure, such as rules of evidence, presumptions
and the question of proper parties. Apart from the fact that it is not possible to
look at each and every specific area, these areas have not been selected as they
show less sign of recent development in private international law. The specific
areas selected in this paper show recent development and appear to the author to
carry greater priority in an examination of the substance and procedure rule.
In examining the theoretical basis of the substance and procedure rule, its
methodology and the specific areas selected, it will be submitted that the modern
approach is to ascribe a natural meaning to the terms substance and procedure.
The demarcation between substance and procedure has shifted and is perhaps
clearer than it was in the past.
A. THEORETICAL BASIS OF THE SUBSTANCE AND PROCEDURE RULE
1. Meaning of the Substance and Procedure Rule
Assuming that a foreign law is to be applied to a particular issue,6 two natural
questions arise. How much of the foreign system of law is the court to apply?
Largely, this line is drawn between substance and procedure and the rule in this
regard is a guiding demarcation. Rules of the foreign legal system may be
applied so long as they are substantive but not if they are procedural; when it
comes to procedure we apply the rules of the lex fori. However, this begs the
question of what is to be characterised as procedure and what as substance.
70 Substance and Procedure in Private International Law JPrIL Vol. 1 No. 1
6 This is assuming, of course, that the foreign law is not a penal, revenue or public law that would
not be enforceable by the court or, that the foreign law is not contrary to public policy.
7 AV Dicey, The Conflict of Laws, 1st edn (1896), 712. See also Dicey and Morris, 157.

the rights or duties of the parties, the lex fori may, as an exception, be justified in
applying its own law where it cannot put itself in the shoes of the foreign court in
the sense that it cannot do justice unless it applies its own law.81 Such a case, it
was said, would arise where the court has no power to award damages on a
structured basis, even though such a power exists in the court of the jurisdiction,
which is the proper law. Although Arden LJ’s observations were specifically lim-
ited to cases of torts, it may nevertheless be said that Her Ladyship envisages a
broader role for the lex fori under the substance and procedure rule than that
envisaged by Sir William Aldous. However, the circumstances that call for the
exception suggested by Arden LJ are ones within the territory of Phrantzes v
Argenti.82 Where the court does not have the power to grant the remedies avail-
able under the lex causae and enforces a remedy of the lex fori that is different, it
may be enforcing a right which the claimant does not have under the lex causae.
Therefore, in such cases the claimant’s claim may be refused or, in cases outside
the scope of the Brussels and Lugano Conventions,83 it may be considered that
the local court is not the forum conveniens.84 In practical terms, one can only
evisage such a case arising in particularly rare circumstances.
2. Proprietary Remedies
Proprietary remedies are ones that proceed against specific property and are
therefore also known as in rem claims. The court may declare that the defendant
holds property on a constructive85 or resulting trust86 for the plaintiff ’s benefit, or
it may grant a lien over a particular fund.87 The availability of proprietary rem-
edies is somewhat unique to the common law and alien to civilian systems.88 If
one were of the view that remedies should be characterised as procedural, then
the availability of a proprietary remedy should be a question for the lex fori.
However, it would be difficult to think of a better example, in the field of rem-
82 Substance and Procedure in Private International Law JPrIL Vol. 1 No. 1
81 Ibid, 435.
82 See supra n 56.
83 The Brussels Convention has been replaced as between Member States of the European Union
(excluding Denmark) by Council Regulation (EC) 44/2001.
84 This doctrine was recognised in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and developed
in subsequent decisions. See generally, Briggs and Rees, Civil Jurisdiction and Judgments (London,
Lloyd’s of London Press, 3rd edn, 2002), ch 4.
85 See Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105; LAC Minerals Ltd v
International Corona Resources Ltd (1989) 61 DLR (4th) 14; AG for Hong Kong v Reid [1994] AC 324
86 See Twinsectra Ltd v Yardley [2002] AC 164.
87 See Re Hallett’s Estate (1880) 13 Ch D696; Re Oatway [1903] 2 Ch 356; Roscoe Ltd v Winder [1915] 1
Ch 62; Re Diplock [1948] Ch 465; Foskett v Mckeown [1998] Ch 265.
88 See R Zimmerman, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford,
Clarendon Press, 1996), ch 26; K Zweigert and H Kötz, An Introduction to Comparative Law (Oxford,
Clarendon Press, 3rd edn, 1988), 559–61; R Zimmerman and J Du Plessis, “Basic Features of the
German Law of Unjustified Enrichment” [1994] Restitution Law Review 14; BS Markesinis,
W Lorenz and G Dannemann, The German Law of Obligations: I The Law of Contracts and Restitution:
A Comparative Introduction (Oxford, Clarendon Press, 1997), 755–59.