CONFLICT OF LAWS

1. CONFLICT OF LAWS Unit 28

2. Preview • Terms • Definitions • “Foreign law” • Jurisdiction • Choice of applicable law • Principles of the choice of law • Rome Convention (1998) • Legal terms • Exercises

3. Terms • Conflict of Laws • Private International Law

4. 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)

5. 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.

6. Definitions • That part of private law which deals with foreign relations

7. 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)

8. 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

9. 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

10. Examples • A contractbetweenanEnglishandaFrenchperson to beperformedpartlyinEnglandandpartlyin France or a third country • A tortcasewhereanEnglishdefendant’s conductin New York causedinjury to a Mexicanvisitorthere

11. Examples • A casewheretheEnglish court has to decide on thevalidityof a marriagecelebratedin France betweenandEnglishwomanandanEgyptianman

12. Enforcement: examples • A claimant, havingobtainedajudgementagainstanEnglishdefendantina New York court for damagesforbreachofcontract, wishes to havejudgementsatisfiedoutofthedefendant’s assetsinEngland • Willthe New York judgementbeenforced, or willtheclaimanthave to bring new proceedingsintheEnglish court to establishtheclaim?

13. Conflict of laws • Wherethere is a conflictoflaws, threemainquestions arise: • 1. doesthe forum inquestionhavejurisdiction to dealwiththematter; • 2. if it hasjurisdiction, whatlawshallbechosen to applytothematter? • 3. how willjudgmentsofforeigncourtsberecognizedandenforced?

14. Jurisdiction: MaharaneeofBaroda v. Wildenstein (1972) • Theplaintiff, a Frenchresident, purchasedapaintingfromthedefendant, aninternationalartdealeralsoresidentin France • Thepainting – allegedlybyBoucher

15. Jurisdiction: MaharaneeofBaroda v. Wildenstein • WhenMaharaneediscoveredthepaintingwasprobablynotbyBoucher, shecommencedanaction for rescissionofthecontractof sale byserving a writ on thedefendantwhile he was on a briefvisit to England • Shewished to sueinEnglandbecausetheremightbeproblemsinhaving her expertevidenceadmittedin France

16. Jurisdiction: MaharaneeofBaroda v. Wildenstein • The problem: shouldanEnglish court exercisejurisdiction to hear a casethatinvolvedonlythe most tenuousconnectionwithEngland

17. Choiceoflaw • IftheEnglish court hasjurisdiction: will it applytherulesofEnglishlaw or thoseof a foreigncountrywithwhichthecasehasconnections

18. Choiceoflaw • Maharanee: theEnglish court decided it had jurisdiction; • Nextdecision: whetherthe legal issue (misrepresentationleading to rescission) wastobegovernedbyEnglishlaw (lex fori) or byFrenchlaw

19. Examples • Formalvalidityof a marriage – governedbythelawofthecountrywheremarriagewascelebrated • Materialvalidityof a contract – governedbythelawchosenbytheparties • Title to immovableproperty – governedbythelawofthecountrywheretheproperty is situated

20. Recognitionandenforcementofforeignjudgements • A husbandandwifelivinginEngland are Muslims; thehusbandpays a visit to a Muslimcountryofwhich he is a citizenwhere he divorces his wifeundertheIslamiclawbydeclaringthreetimesthat he divorces her • IsthedivorceeffectiveinEngland?

21. 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

22. Choiceoflawrules • Structured to leadtotheapplicationof a lawwhichhasa close connectionwitheitherthepartiesofthecauseofaction

23. Connectingfactors • 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.

24. Connectingfactors • 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.

25. Lex fori • The law of the forum or court governs matters of procedure, the mode of trial, evidence, remedies

26. Lex causae • The system of law (usually foreign) applicable to the case in dispute; substantive rules

27. TheHagueConference on PrivateInternationalLaw • 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 ofmultilateralconventionspromoting theharmonisationofconflictoflawprinciples • about 30 international conventions focusing on the rules of conflict of laws • 74 state members

28. 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.

29. 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.

30. 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.

31. International instruments • TheViennaConvention on theInternational Sale ofGoods (1988) • Rome Convention on thetheLaw (1980) Applicable to ContractualObligations • UNIDROIT (The International Institute for the Unification of Private Law): 63 MemberStates

32. Summary • Conflictoflaws (privateinternationallaw): privatelawcontaining a foreign element • Choiceoflaws • Choiceof forum • Recognitionandenforcementofforeignjudgements

33. 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

34. 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).

35. 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.

36. 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.

37. 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.

38. 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.

39. 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

40. 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.

41. 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