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 inter-state 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

Connecting factors Lex loci contractus: the law of the place where the contract was made. Lex loci solutionis: the law of the place where the contract is to be performed. Lex loci celebrationis: the law of the place where the marriage was celebrated.

Connecting factors Lex loci delicti: the law of the place where the tort was committed. Lex domicilii: the law of the place where a person is domiciled. Lex patriae: the law of the nationality. Lex situs: the law of the place where the property is situated. Lex fori: the law of the court in which the case is heard.

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