Unit 28
Conflict of Laws
Compare the following situations:
CASE A
An Englishman and
woman are British
citizens, domicilied and
resident in England, went
through a ceremony of
marriage in England.
Later: the wife petitions
an English court for a
divorce. The spouses are
still domiciled and
resident in England.
CASE B
A British couple married
in France, domiciled and
resident in England at the
time of marriage. Later
on the husband petitions
for divorce. At the time of
his divorce petition his
wife is domiciled and
resident in France.
Topics to be decided:
1. the court jurisdiction (Does an English
court have the competence to hear and
determine a case?)
2. the selection of the appropriate rules of a
system of law (English or foreign?) – the
rules governing this selection are known as
“choice of law”
3. the recognition and enforcement of judgements
rendered by foreign courts
A situation in which a case contains a
foreign element...
TERRITORY
B
TERRITORY
A
A CASE
involving more than
one territory
TERRITORY: state, province, canton...
Read the following defintion and
underline the key words.
Conflict of laws means discordance between
the laws of one country and another, as
applied to the same subject-matter,...
Rules of law have been developed to deal with
conflict of laws, rules for determining which
country’s courts are the appropriate forum for the
dispute, and which country’s law is the
appropriate law for the resolution of the dispute.
J. E. Penner: The Law Student’s Dictionary, Oxford, 2008
CONFLICT OF LAWS
(PRIVATE INTERNATIONAL LAW)
A) in common law system
- a branch of international law that regulates all lawsuits
involving a "foreign" law element
B)
in civil law system
- a law branch of internal legal system dealing with
1) the determination of which state law is
applicable to situations crossing out the borders
of one particular state and involving a "foreign"
element
2) the international civil procedure and international
commercial arbitration (collisions of jurisdiction,
conflict of jurisdictions).
Compare...
PUBLIC
INTERNATIONAL
LAW
PRIVATE
INTERNATIONAL
LAW
CONFLICT OF LAWS
- rights between
several nations or
- nations and the
citizens or
subjects of other
nations
- conflicts between
private persons,
natural or juridical,
having relationship
to more than one
nation
SUPRANATIONAL
LAW
- the law of
supranational
organizations
(e.g. EU law)
Areas of law potentialy involving conflict
of laws:
1. Law of obligations (contracts, torts)
2. Property and succession (property inter
vivos, succession, matrimonial property
relations)
3. Family law (marriage, divorce, children)
Case example
•
•
•
A who has a French nationality and residence in Germany
B who has American nationality, domicile in Arizona, and
residence in Austria
C a Swiss national, owns property in Switzerland
a) A corresponds with B over the internet. They agree the
joint purchase of land in Switzerland, currently owned by
C, but they never physically meet.
a) They execute initial contract documents by using mail,
followed by a postal exchange of hard copies.
b) A pays his share of the deposit but, before the transaction
is completed, B admits that although he has capacity to
buy land under his lex domicilii and the law of his
residence, he is too young to own land under Swiss law.
Matrimonial cases...
POTENTIAL PROBLEMS
- the place of marriage ≠ the territory where divorce
was filed
- the parties’ nationalities and residence do not
match
- there is property in a foreign jurisdiction
- parties have changes residence several times
during the marriage
Important expressions
- conflict of laws – private international law
- discordance between the laws
- the resolution of the dispute
- judicial jurisdiction
- recognition of foreign judgements
- territorial diversity of legal systems
- international / interstate / intercantonal conflicts...
- the choice of law
- foreign element (in a case)
Translate the following sentence.
U užem smislu riječi, sukob zakona
podrazumijeva sukob između zakona
koji pripadaju različitim državama radi
rješavanja konkretnoga slučaja koji
može biti, po različitim osnovama,
riješen primjenom zakona dviju ili više
država.
Pravni leksikon
Leksikografskog zavoda Miroslav Krleža
Zakon o rješavanju sukoba zakona s
propisima drugih zemalja u određenim
odnosima, NN 53/91, 88/01
 Glava prva OSNOVNE ODREDBE
 Članak 1.
Ovaj zakon sadrži pravila o određivanju mjerodavnog prava za statusne,
porodične i imovinske odnosno druge materijalnopravne odnose s
međunarodnim elementom.
Ovaj zakon sadrži i pravila o nadležnosti sudova i drugih organa
Republike Hrvatske za raspravljanje odnosa iz stavaka 1, ovog
članaka, pravila postupka i pravila za priznanje i izvršenje stranih
sudskih i arbitražnih odluka.
Read part II of this law “APPROPRIATE LAW” and make notes about
different situations and the rules about the applicability of law
refering to them (e.g. Custody, contract, marriage).
http://www.zakon.hr/z/113/Zakon-o-rje%C5%A1avanju-sukoba-zakona-spropisima-drugih-zemalja-u-odre%C4%91enim-pitanjima