Conflict of laws

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Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction.[1] This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case.[2] These issues can arise in any private-law context,[3] but they are especially prevalent in contract law[4] and tort law.[5]

Terminology[edit]

The term conflict of laws is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. In most other countries, the term private international law is used.[6] Some scholars from countries that use conflict of laws consider the term public international law confusing because this body of law consists wholly of domestic laws that are not part of international law; the calculus only includes international law when the nation has treaty obligations (and even then, only to the extent that domestic law renders the treaty obligations enforcable).[7] The term private international law comes from the private law/public law dichotomy in civil law systems.[8] In this form of legal system, the term private international law does not imply an agreed upon international legal corpus, but rather the international portions of domestic private law.[9]

History[edit]

Western legal systems first recognized a core underpinning of conflict of laws—namely, that "foreign law, in appropriate instances, should be applied to foreign cases"—in the twelfth century.[10] Prior to that, the prevailing system was that of personal law, in which the laws applicable to each individual were dictated by the group to which he or she belonged.[11] Initially, the goal of this body of law was simply to determine which jurisdiction's law would be most fair to apply, but over time the law came to favor more well-defined rules.[12] These rules were systematically summarized by law professor Bartolus de Saxoferrato in the middle of the fourteenth century,[13] a work that came to be cited repeatedly for the next several centuries.[14]

Later, in the seventeenth century, several Dutch legal scholars, including Christian Rodenburg, Paulus Voet, Johannes Voet, and Ulrik Huber, further expounded the jurisprudence of conflict of laws.[15] the concept of comity as an important one in conflict of laws. Their key conceptual contributions were twofold: First, nations are wholly sovereign within their borders and therefore cannot be compelled to enforce foreign law in their own courts.[16] Second, in order for international conflicts of law to work rationally, nations must exercise comity in enforcing others' laws, because it is in their mutual interest to do so.[17]

In the United States, issues in the field of conflict of laws date back at least to the framing of the Constitution. There was concern, for example, about what body of law the newly created federal courts would apply when handling cases between parties from different states[18] (a type of case specifically assigned to the federal courts[19]). Within the first two decades, over one hundred cases dealt with these issues, though the term conflict of laws was not yet used.[20]

As attention to the field became more widespread in the second half of the twentieth century, the European Union began to take action to harmonize conflict of laws jurisprudence across its member states. The first of these was the Brussels Convention agreed in 1968, which addressed questions of jurisdiction for cross-border cases.[21] This was followed in 1980 by the Rome Convention, which addressed choice-of-law rules for contract disputes within EU member states.[22] In 2009 and 2010, respectively, the EU enacted the Rome II Regulation to address choice-of-law in tort cases[23] and the Rome III Regulation to address choice-of-law in divorce matters.[24]

Choice of laws[edit]

Courts faced with a choice of law issue have a two-stage process:

  1. the court will apply the law of the forum (lex fori) to all procedural matters (including the choice of law rules);
  2. it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or the law of habitual residence (lex domicilii). (See also 'European Harmonization Provisions': "The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii".) The court will determine the plaintiffs' legal status and capacity. The court will determine the law of the state in which land is situated (lex situs) that will be applied to determine all questions of title. The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.[25]

Contracts[edit]

Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). In the EU, this is governed by the Rome I Regulation. Choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract and will be determined by the law of the state where the choice of law clause confers its competence. Oxford Professor Adrian Briggs suggests that this is doctrinally problematic as it is emblematic of 'pulling oneself up by the bootstraps'.[26]

Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. This judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors;[27] it also harms consumers as vendors often impose one-sided contractual terms selecting a venue far from the buyer's home or workplace. Contractual clauses relating to consumers, employees, and insurance beneficiaries are regulated under additional terms set out in Rome I, which may modify the contractual terms imposed by vendors.[28]

See also[edit]

Notes[edit]

  1. ^ Conflict of Laws', Black's Law Dictionary (11th ed. 2019).
  2. ^ Restatement of the Law—Conflict of Laws, §2: Subject Matter of Conflict of Laws (American Law Institute 1971) (hereinafter "Restatement")
  3. ^ Restatement §2
  4. ^ Briggs (2008). The Conflict of Laws. pp. 2–3.
    Clarkson; Hill (2006). The Conflict of Laws. pp. 2–3.
    Collins (2006). Dicey, Morris and Collins on The Conflict of Laws. p. 36 (paras. 1-087 et seq.).
    Hay; Borchers; Symeonides (2010). Conflict of Laws. pp. 1–3.
    McClean; Beevers (2009). The Conflict of Laws. pp. 4–5 (para. 1-006).
    North; Fawcett (1999). Cheshire and North's Private International Law. pp. 13–14.
    Rogerson (2013). Collier's Conflicts of Laws. pp. 3–4.
    Symeonides (2008). American Private International Law. pp. 15–16 (para. 2).
  5. ^ See, e.g., Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
  6. ^ Encyclopedia Britannica[vague]
  7. ^ Black's Law Dictionary, International Law: Private International Law (11th ed. 2019)
  8. ^ Encyclopedia Britannica[vague]
  9. ^ Encyclopedia Britannica[vague]
  10. ^ Hessel E. Yntema, The Comity Doctrine, 65 Michigan Law Review 9, 9-10 (1965)
  11. ^ Ibid.
  12. ^ Id. at 12-13
  13. ^ Id. at 13
  14. ^ J.A. Clarence Smith, Bartolo on the Conflict of Laws, 14 American Journal of Legal History 157, 157-60 (1970)
  15. ^ Ynetma at 20-28
  16. ^ Id. at 28
  17. ^ Id. at 30
  18. ^ Kurt H. Nadelmann, Joseph Story's Contribution to American Conflicts Law: A Comment, 5 American Journal of Legal History 230, 235 (1961
  19. ^ U.S. Const. Art. III, §2
  20. ^ Id. at 235-36
  21. ^ 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters
  22. ^ 1980 Rome Convention on the law applicable to contractual obligations
  23. ^ Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations
  24. ^ COUNCIL REGULATION (EU) No 1259/2010
  25. ^ Dow Jones v Gutnick [2002] HCA 56[permanent dead link]
  26. ^ Adrian Briggs, The Conflict of laws, Clarendon Law Series third edition 2013
  27. ^ Rome I Regulation Article 3(1), Also see Macmillan v Bishopsgate Investment Trust plc [1996] 1 WLR 387 per Staughton LJ 391–392; Golden Ocean Group v Salgocar Mining Ltd [2012] EWCA Civ 542
  28. ^ Rome I Regulation, Article 5-Article 8

References[edit]

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