CONFLICT OF LAWS
Unit 28
Preview
Terms
Definitions
“Foreign law”
Jurisdiction
Choice of applicable law
Principles of the choice of law
Rome Convention (1998)
Legal terms
Exercises
Terms
Conflict of Laws
Private International Law
Terms
Private international law: first used by Joseph
Story in Commentaries on the Conflict of Laws
foreign and domestic, in regard to contracts,
rights, and remedies, and especially in regard to
marriages, divorces, wills, successions, and
judgments. (1834)
Conflict of Laws: Ulrich Huber, De Conflictu
Legum Diversarum in Diversis Imperiis (1689)
Terms
Within local federal systems, where interstate legal conflicts require resolution
(US), the term "Conflict of Laws" is
preferred because such cases are not an
international issue.
Definitions
That part of private law which deals with
foreign relations
Definitions
The part of the national law of a country
that establishes rules for dealing with
cases involving a foreign element (i.e.
contact with some system of foreign law)
Foreign law
The system of a foreign state or of a law
district
The law of Scotland, Northern Ireland, the
Channel Islands, and Isle of Man – a
separate foreign law
Also: the law of each of the American or
Australian states or Canadian provinces
Example
If a contract is made in England but is to
be fulfilled abroad, it will be necessary to
decide which law governs the validity of
the contract
Examples
A contract between an English and a
French person to be performed partly in
England and partly in France or a third
country
A tort case where an English defendant’s
conduct in New York caused injury to a
Mexican visitor there
Examples
A case where the English court has to
decide on the validity of a marriage
celebrated in France between and English
woman and an Egyptian man
Enforcement: examples
A claimant, having obtained a judgement against
an English defendant in a New York court for
damages for breach of contract, wishes to have
judgement satisfied out of the defendant’s
assets in England
Will the New York judgement be enforced, or will
the claimant have to bring new proceedings in
the English court to establish the claim?
Conflict of laws
Where there is a conflict of laws, three
main questions arise:
1. does the forum in question have
jurisdiction to deal with the matter;
2. if it has jurisdiction, what law shall be
chosen to apply to the matter?
3. how will judgments of foreign courts be
recognized and enforced?
Jurisdiction:
Maharanee of Baroda v. Wildenstein (1972)
The plaintiff, a French resident, purchased
a painting from the defendant, an
international art dealer also resident in
France
The painting – allegedly by Boucher
Jurisdiction:
Maharanee of Baroda v. Wildenstein
When Maharanee discovered the painting
was probably not by Boucher, she
commenced an action for rescission of the
contract of sale by serving a writ on the
defendant while he was on a brief visit to
England
She wished to sue in England because
there might be problems in having her
expert evidence admitted in France
Jurisdiction:
Maharanee of Baroda v. Wildenstein
The problem: should an English court
exercise jurisdiction to hear a case that
involved only the most tenuous connection
with England
Choice of law
If the English court has jurisdiction: will it
apply the rules of English law or those of a
foreign country with which the case has
connections
Choice of law
Maharanee: the English court decided it
had jurisdiction;
Next decision: whether the legal issue
(misrepresentation leading to rescission)
was to be governed by English law (lex
fori) or by French law
Examples
Formal validity of a marriage – governed
by the law of the country where marriage
was celebrated
Material validity of a contract – governed
by the law chosen by the parties
Title to immovable property – governed by
the law of the country where the property
is situated
Recognition and enforcement of
foreign judgements
A husband and wife living in England are
Muslims; the husband pays a visit to a
Muslim country of which he is a citizen
where he divorces his wife under the
Islamic law by declaring three times that
he divorces her
Is the divorce effective in England?
Choice of law
The body of rules indicating which
territorial system of law should be chosen
for the adjudication of a case having
contacts with more than one territory
Choice of law rules
Structured to lead to the application of a
law which has a close connection with
either the parties of the cause of action
Lex personalis
1) The personal law (lex personalis) by
which the plaintiff or defendant is
governed; the personal law may be
determined either by the law of the party's
place of domicile (lex domicilii) or by his
national law (lex ligeantiae);
Lex domicilii
The law of the country of domicile
determines such matters as capacity to
make a will, the validity of a will; consent
to marriage, marriage contract
Lex actus
(2) the law of the place where obligation
was established, for instance, the place
where the contract was concluded;
Lex loci solutionis
(3) the law of the place where the legal act
is to be carried out, for instance, the
fulfillment of a contract;
Lex loci contractu
The law of the place where a contract was
made
Formal requirements of a contract
Lex loci celebrationis
The formalities of a marriage are governed
by the law of the place where the marriage
ceremony was conducted
Lex loci situs
(4) the law of the place of situation of the
property forming the subject matter of the
dispute (lex situs); The law of the place
where an object is situated; governs the
right to possession of immovables
Lex fori
The law of the forum or court governs
matters of procedure, the mode of trial,
evidence, remedies
Lex causae
The system of law (usually foreign)
applicable to the case in dispute;
substantive rules
The Hague Conference on
Private International Law
formed in 1893 to "work for the progressive
unification of the rules of private international
law".
pursued this goal by creating and assisting in
the implementation of multilateral conventions
promoting the harmonisation of conflict of law
principles
about 30 international conventions focusing on
the rules of conflict of laws
74 state members
Rome Convention (1998)
1. The rules of this Convention shall apply
to contractual obligations in any situation
involving a choice between the laws of
different countries.
Rome Convention (1998)
Freedom of choice
1. A contract shall be governed by the law
chosen by the parties. The choice must be
expressed or demonstrated with
reasonable certainty by the terms of the
contract or the circumstances of the case.
By their choice the parties can select
the law applicable to the whole or a part
only of the contract.
Rome Convention (1998)
Article 4
Applicable law in the absence of choice
1. To the extent that the law applicable to
the contract has not been chosen in
accordance with Article 3, the contract
shall be governed by the law of the
country with which it is most closely
connected.
International instruments
The Vienna Convention on the
International Sale of Goods (1988)
Rome Convention on the the Law (1980)
Applicable to Contractual Obligations
UNIDROIT (The International Institute
for the Unification of Private Law ): 63
Member States
Summary
Conflict of laws (private international law):
private law containing a foreign element
Choice of laws
Choice of forum
Recognition and enforcement of foreign
judgements
Legal terms
The act of giving a judgement or of
deciding a legal problem:
Adjudication
The power of a court to hear and decide a
case or make a certain order
Jurisdiction
Put the verbs in brackets into the
appropriate forms:
Each country _______(determine) the
jurisdiction of its courts to entertain a civil law
suit. In federal countries or unitary systems with
strong traditions of regional or provincial
jurisdiction (e.g., the United States, the United
Kingdom, Canada, and Switzerland), it
______(become) necessary to have rules to
determine in which jurisdiction a civil suit may
______(bring, passive). In some countries (e.g.,
Germany and Austria) the central (national) law
______(govern), while in others the constituent
states may determine the jurisdiction of their
courts themselves (e.g., the United States).
Fill in the missing words: enforcement, obligation,
private, refers
Private international law _____ to that part
of the law that is administered between___
citizens of different countries or is
concerned with the definition, regulation,
and ____ of rights in situations where both
the person in whom the right inheres and
the person upon whom the _____ rests
are private citizens of different nations.
dispute, governments, regulations, respect, set,
transaction
It is a set of rules and ____ that are
established or agreed upon by citizens of
different nations who privately enter into a
____ and that will govern in the event of a
____. In this ____, private international
law differs from public international law,
which is the ___ of rules entered into by
the ____of various countries that
determine the rights and regulate the
relations of independent nations.
Key
Private international law refers to that part
of the law that is administered between
private citizens of different countries or is
concerned with the definition, regulation,
and enforcement of rights in situations
where both the person in whom the right
inheres and the person upon whom the
obligation rests are private citizens of
different nations.
Key
It is a set of rules and regulations that are
established or agreed upon by citizens of
different nations who privately enter into a
transaction and that will govern in the event of a
dispute. In this respect, private international law
differs from public international law, which is the
set of rules entered into by the governments of
various countries that determine the rights and
regulate the intercourse of independent nations.
Translation
In international trade, there are numerous
disputes involving one or even more
countries. To be sure, such disputes are
not related exclusively to ordinary
commercial contracts. Let us recall tourists
who have a traffic accident in a foreign
country, or long-lasting disputes between
spouses involving children or property
Every country, therefore, has a branch of
law which is referred to as Conflict of Laws
in England, to solve two important issues:
which courts have jurisdiction in a dispute,
and the law of which country should be
applied to solve the dispute. Parties can
agree to solve the dispute in a country
which is not involved in the dispute.
Private international law (conflict of laws) is a
system of law, which is part of State’s domestic
law and which is utilised to determine how
conflicts of laws and jurisdiction are to be
resolved. Also distinct is foreign relations law,
which “consists of rules of public international
law which are binding upon (a State), and such
parts of (a State’s) law as are concerned with
the means by which effect is given to the rules of
public internatinal law or which involve matters
of concern to (a State) in the conduct of its
relation with foreign States and governments or
their nationals