CONFLICT OF LAWSCONFLICT OF LAWS

Unit 28Unit 28

PreviewPreviewTermsTermsDefinitionsDefinitions““Foreign law”Foreign law”JurisdictionJurisdictionChoice of applicable lawChoice of applicable lawPrinciples of the choice of lawPrinciples of the choice of lawRome Convention (1998)Rome Convention (1998)Legal termsLegal termsExercisesExercises

TermsTermsConflict of Laws Conflict of Laws Private International LawPrivate International Law

TermsTermsPrivate international lawPrivate international law: first : first used by Joseph Story in used by Joseph Story in Commentaries Commentaries on the Conflict of Laws foreign and domestic, in on the Conflict of Laws foreign and domestic, in regard to contracts, rights, and remedies, and regard to contracts, rights, and remedies, and especially in regard to marriages, divorces, wills, especially in regard to marriages, divorces, wills, successions, and judgments.successions, and judgments. (1834) (1834)Conflict of LawsConflict of Laws: Ulrich Huber, : Ulrich Huber, De De Conflictu Legum Diversarum in Diversis Imperiis Conflictu Legum Diversarum in Diversis Imperiis (1689)(1689)

TermsTermsWithin local federal systems, Within local federal systems, where inter-state legal where inter-state legal conflicts require resolution conflicts require resolution ((US)US), the term "Conflict of , the term "Conflict of Laws" is preferred because such Laws" is preferred because such cases are not an international cases are not an international issue. issue.

DefinitionsDefinitionsThat part of private law which That part of private law which deals with foreign relationsdeals with foreign relations

DefinitionsDefinitionsThe part of the national law of The part of the national law of a country that establishes a country that establishes rules for dealing with cases rules for dealing with cases involving a foreign element involving a foreign element (i.e. contact with some system (i.e. contact with some system of foreign law)of foreign law)

Foreign lawForeign lawThe system of a foreign state or The system of a foreign state or of a law districtof a law districtThe law of Scotland, Northern The law of Scotland, Northern Ireland, the Channel Islands, Ireland, the Channel Islands, and Isle of Man – a separate and Isle of Man – a separate foreign lawforeign lawAlso: the law of each of the Also: the law of each of the American or Australian states or American or Australian states or Canadian provincesCanadian provinces

ExampleExampleIf a contract is made in If a contract is made in England but is to be fulfilled England but is to be fulfilled abroad, it will be necessary to abroad, it will be necessary to decide which law governs the decide which law governs the validity of the contractvalidity of the contract

ExamplesExamplesA contract between an English A contract between an English and a French person to be and a French person to be performed partly in England and performed partly in England and partly in France or a third partly in France or a third countrycountryA tort case where an English A tort case where an English defendant’s conduct in New York defendant’s conduct in New York caused injury to a Mexican caused injury to a Mexican visitor therevisitor there

ExamplesExamplesA case where the English court A case where the English court has to decide on the validity has to decide on the validity of a marriage celebrated in of a marriage celebrated in France between and English France between and English woman and an Egyptian manwoman and an Egyptian man

Conflict of lawsConflict of lawsWhere there is a conflict of Where there is a conflict of laws, two main questions arise: laws, two main questions arise: 1. does the forum in question 1. does the forum in question have jurisdiction to deal with have jurisdiction to deal with the matter; the matter; 2. if it has jurisdiction, what 2. if it has jurisdiction, what law shall be chosen to apply to law shall be chosen to apply to the matter? the matter?

Jurisdiction: Jurisdiction: Maharanee of Baroda v. Wildenstein Maharanee of Baroda v. Wildenstein

(1972)(1972)The plaintiff, a French The plaintiff, a French resident, purchased a painting resident, purchased a painting from the defendant, an from the defendant, an international art dealer also international art dealer also resident in Franceresident in FranceThe painting – allegedly by The painting – allegedly by BoucherBoucher

Jurisdiction: Jurisdiction: Maharanee of Baroda v. WildensteinMaharanee of Baroda v. Wildenstein

When Maharanee discovered the When Maharanee discovered the painting was probably not by Boucher, painting was probably not by Boucher, she commenced an action for she commenced an action for rescission of the contract of sale by rescission of the contract of sale by serving a writ on the defendant while serving a writ on the defendant while he was on a brief visit to Englandhe was on a brief visit to EnglandShe wished to sue in England because She wished to sue in England because there might be problems in having her there might be problems in having her expert evidence admitted in Franceexpert evidence admitted in France

Jurisdiction: Jurisdiction: Maharanee of Baroda v. WildensteinMaharanee of Baroda v. Wildenstein

The problem: should an English The problem: should an English court exercise jurisdiction to court exercise jurisdiction to hear a case that involved only hear a case that involved only the most tenuous connection the most tenuous connection with Englandwith England

Choice of lawChoice of lawIf the English court has If the English court has jurisdiction: will it apply the jurisdiction: will it apply the rules of English law or those rules of English law or those of a foreign country with which of a foreign country with which the case has connectionsthe case has connections

Choice of lawChoice of lawMaharanee: the English court Maharanee: the English court decided it had jurisdiction; decided it had jurisdiction; Next decision: whether the Next decision: whether the legal issue (misrepresentation legal issue (misrepresentation leading to rescission) was to leading to rescission) was to be governed by English law (lex be governed by English law (lex fori) or by French lawfori) or by French law

ExamplesExamplesFormal validity of a marriage – Formal validity of a marriage – governed by the law of the country governed by the law of the country where marriage was celebratedwhere marriage was celebratedMaterial validity of a contract – Material validity of a contract – governed by the law chosen by the governed by the law chosen by the partiespartiesTitle to immovable property – Title to immovable property – governed by the law of the country governed by the law of the country where the property is situatedwhere the property is situated

Recognition and Recognition and enforcement of foreign enforcement of foreign

judgementsjudgementsA husband and wife living in A husband and wife living in England areMuslims; the England areMuslims; the husbandpays a visit to a Muslim husbandpays a visit to a Muslim country of which he is a citizen country of which he is a citizen where he divorces his wife under where he divorces his wife under the Islamic law by declaring the Islamic law by declaring three times that he divorces herthree times that he divorces herIs the divorce effective in Is the divorce effective in England?England?

Choice of lawChoice of lawThe body of rules indicating The body of rules indicating which territorial system of law which territorial system of law should be chosen for the should be chosen for the adjudication of a case having adjudication of a case having contacts with more than one contacts with more than one territoryterritory

Choice of law rulesChoice of law rulesStructured to lead to the Structured to lead to the application of a law which has application of a law which has a close connection with either a close connection with either the parties of the cause of the parties of the cause of actionaction

RenvoiRenvoiDoctrine whereby courts of one Doctrine whereby courts of one country apply the law of country apply the law of another country in resolving a another country in resolving a legal disputelegal dispute

ExampleExampleUnder English rules, if a person Under English rules, if a person dies intestate, the succession to dies intestate, the succession to his property is governed by the law his property is governed by the law of the domicile countryof the domicile countryUnder Italian rules, the succession Under Italian rules, the succession is governed by the intestator’s is governed by the intestator’s nationalitynationalityIf an English national dies If an English national dies intestate while domiciled in Italy, intestate while domiciled in Italy, what renvoi problem will arise?what renvoi problem will arise?

AnswerAnswerEnglish law will refer the English law will refer the matter to the law of his matter to the law of his domicile (Italian law), while domicile (Italian law), while Italian law will refer the Italian law will refer the matter to the law of his matter to the law of his nationality (English law)nationality (English law)

Lex personalisLex personalis1) The personal law (1) The personal law (lex lex personalispersonalis) by which the ) by which the plaintiff or defendant is plaintiff or defendant is governed; the personal law may governed; the personal law may be determined either by the law be determined either by the law of the party's place of of the party's place of domicile (domicile (lex domiciliilex domicilii) or by his ) or by his national law (national law (lex ligeantiaelex ligeantiae); );

Lex actusLex actus(2) the law of the place where (2) the law of the place where obligation was established, for obligation was established, for instance, the place where the instance, the place where the contract was concluded;contract was concluded;

Lex loci solutionisLex loci solutionis(3) the law of the place where (3) the law of the place where the legal act is to be carried the legal act is to be carried out, for instance, the out, for instance, the fulfillment of a contract;fulfillment of a contract;

Lex loci celebrationisLex loci celebrationisThe formalities of a marriage The formalities of a marriage are governed by the law of the are governed by the law of the place where the marriage place where the marriage ceremony was conductedceremony was conducted

Lex loci situsLex loci situs(4) the law of the place of (4) the law of the place of situation of the property situation of the property forming the subject matter of forming the subject matter of the dispute (the dispute (lex situslex situs); The law ); The law of the place where an object is of the place where an object is situated; governs the right to situated; governs the right to possession of immovablespossession of immovables

Lex foriLex foriThe law of the forum or court The law of the forum or court governs matters of procedure, governs matters of procedure, the mode of trial, evidence, the mode of trial, evidence, remediesremedies

Lex causaeLex causaeThe system of law (usually The system of law (usually foreign) applicable to the case foreign) applicable to the case in dispute; substantive rulesin dispute; substantive rules

Lex domiciliiLex domiciliiThe law of the country of The law of the country of domicile determines such domicile determines such matters as capacity to make a matters as capacity to make a will, the validity of a will; will, the validity of a will; consent to marriage, marriage consent to marriage, marriage contractcontract

Lex loci contractuLex loci contractuThe law of the place where a The law of the place where a contract was madecontract was madeFormal requirements of a Formal requirements of a contractcontract

Rome Convention (1998)Rome Convention (1998)1.1. The rules of this Convention The rules of this Convention shall apply to contractual shall apply to contractual obligations in any situation obligations in any situation involving a choice between the involving a choice between the laws of different countries.laws of different countries.

Rome Convention (1998)Rome Convention (1998)Freedom of choiceFreedom of choice 1.1. A contract shall be governed by A contract shall be governed by the law chosen by the parties. The the law chosen by the parties. The choice must be expressed or choice must be expressed or demonstrated with reasonable demonstrated with reasonable certainty by the terms of the certainty by the terms of the contract or the circumstances of contract or the circumstances of the case. the case. By their choice the By their choice the parties can select the law parties can select the law applicable to the whole or a part applicable to the whole or a part only of the contractonly of the contract..

Rome Convention (1998)Rome Convention (1998)Article 4Article 4Applicable law in the absence of Applicable law in the absence of choicechoice 1.1. To the extent that the law To the extent that the law applicable to the contract has not applicable to the contract has not been chosen in accordance with been chosen in accordance with Article 3, the contract shall be Article 3, the contract shall be governed by the law of the country governed by the law of the country with which it is most closely with which it is most closely connected. connected.

Recognition and Recognition and enforcement of foreign enforcement of foreign

judgementsjudgementsA husband and wife living in A husband and wife living in England areMuslims; the England areMuslims; the husbandpays a visit to a Muslim husbandpays a visit to a Muslim country of which he is a citizen country of which he is a citizen where he divorces his wife under where he divorces his wife under the Islamic law by declaring the Islamic law by declaring three times that he divorces herthree times that he divorces herIs the divorce effective in Is the divorce effective in England?England?

SummarySummaryConflict of laws (private Conflict of laws (private international law): private law international law): private law containing a foreign elementcontaining a foreign elementChoice of lawsChoice of lawsChoice of forumChoice of forum

Legal termsLegal termsThe act of giving a judgement The act of giving a judgement or of deciding a legal problemor of deciding a legal problem::AdjudicationAdjudicationThe power of a court to hear The power of a court to hear and decide a case or make a and decide a case or make a certain ordercertain orderJurisdictionJurisdiction

Put the verbs in brackets Put the verbs in brackets into the appropriate into the appropriate

forms:forms:Each country _______(determine) the Each country _______(determine) the jurisdiction of its courts to entertain a jurisdiction of its courts to entertain a civil law suit. In federal countries or civil law suit. In federal countries or unitary systems with strong traditions of unitary systems with strong traditions of regional or provincial jurisdiction (e.g., regional or provincial jurisdiction (e.g., the United States, the United Kingdom, the United States, the United Kingdom, Canada, and Switzerland), it Canada, and Switzerland), it ______(become) necessary to have rules to ______(become) necessary to have rules to determine in which jurisdiction a civil determine in which jurisdiction a civil suit may ______(bring, passive). In some suit may ______(bring, passive). In some countries (e.g., Germany and Austria) the countries (e.g., Germany and Austria) the central (national) law ______(govern), central (national) law ______(govern), while in others the constituent states may while in others the constituent states may determine the jurisdiction of their courts determine the jurisdiction of their courts themselves (e.g., the United States). themselves (e.g., the United States).

Fill in the missing words: Fill in the missing words: enforcement, obligation, private, enforcement, obligation, private,

refersrefersPrivate international law _____ to Private international law _____ to that part of the law that is that part of the law that is administered between___ citizens of administered between___ citizens of different countries or is concerned different countries or is concerned with the definition, regulation, with the definition, regulation, and ____ of rights in situations and ____ of rights in situations where both the person in whom the where both the person in whom the right inheres and the person upon right inheres and the person upon whom the _____ rests are private whom the _____ rests are private citizens of different nations. citizens of different nations.

dispute, governments, regulations, dispute, governments, regulations, respect, set, transactionrespect, set, transaction

It is a set of rules and ____ that It is a set of rules and ____ that are established or agreed upon by are established or agreed upon by citizens of different nations who citizens of different nations who privately enter into a ____ and that privately enter into a ____ and that will govern in the event of a ____. will govern in the event of a ____. In this ____, private international In this ____, private international law differs from public international law differs from public international law, which is the ___ of rules law, which is the ___ of rules entered into by the ____of various entered into by the ____of various countries that determine the rights countries that determine the rights and regulate the relations of and regulate the relations of independent nations.independent nations.

KeyKeyPrivate international law refers to Private international law refers to that part of the law that is that part of the law that is administered between private citizens administered between private citizens of different countries or is concerned of different countries or is concerned with the definition, regulation, and with the definition, regulation, and enforcement of rights in situations enforcement of rights in situations where both the person in whom the where both the person in whom the right inheres and the person upon whom right inheres and the person upon whom the obligation rests are private the obligation rests are private citizens of different nations. citizens of different nations.

KeyKeyIt is a set of rules and regulations that It is a set of rules and regulations that are established or agreed upon by citizens are established or agreed upon by citizens of different nations who privately enter of different nations who privately enter into a transaction and that will govern in into a transaction and that will govern in the event of a dispute. In this respect, the event of a dispute. In this respect, private international law differs from private international law differs from public international law, which is the set public international law, which is the set of rules entered into by the governments of rules entered into by the governments of various countries that determine the of various countries that determine the rights and regulate the intercourse of rights and regulate the intercourse of independent nations.independent nations.

TranslationTranslationIn international trade, there are In international trade, there are numerous disputes involving one or numerous disputes involving one or even more countries. To be sure, even more countries. To be sure, such disputes are not related such disputes are not related exclusively to ordinary commercial exclusively to ordinary commercial contracts. Let us recall tourists contracts. Let us recall tourists who have a traffic accident in a who have a traffic accident in a foreign country, or long-lasting foreign country, or long-lasting disputes between spouses involving disputes between spouses involving children or property children or property

Every country, therefore, has a Every country, therefore, has a branch of law which is referred to branch of law which is referred to as Conflict of Laws in England, to as Conflict of Laws in England, to solve two important issues: which solve two important issues: which courts have jurisdiction in a courts have jurisdiction in a dispute, and the law of which dispute, and the law of which country should be applied to solve country should be applied to solve the dispute. Parties can agree to the dispute. Parties can agree to solve the dispute in a country which solve the dispute in a country which is not involved in the dispute. is not involved in the dispute.

Private international law (conflict of Private international law (conflict of laws) is a system of law, which is part of laws) is a system of law, which is part of State’s domestic law and which is utilised State’s domestic law and which is utilised to determine how conflicts of laws and to determine how conflicts of laws and jurisdiction are to be resolved. Also jurisdiction are to be resolved. Also distinct is foreign relations law, which distinct is foreign relations law, which “consists of rules of public international “consists of rules of public international law which are binding upon (a State), and law which are binding upon (a State), and such parts of (a State’s) law as are such parts of (a State’s) law as are concerned with the means by which effect concerned with the means by which effect is given to the rules of public is given to the rules of public internatinal law or which involve matters internatinal law or which involve matters of concern to (a State) in the conduct of of concern to (a State) in the conduct of its relation with foreign States and its relation with foreign States and governments or their nationalsgovernments or their nationals