Conflict of laws, private international law, international private law, or international law
(private), in common law systems, is that branch of international law and intranational interstate law that regulates all lawsuits involving a "foreign" law element where different judgments will result depending on which
jurisdiction's laws are applied as the lex causae.
In civil law systems, private international law is a branch of the
internal legal system dealing with the determination of which state law is applicable to situations crossing over the borders of
one particular state and involving a "foreign element" [élément d'extranéite], (collisions of law, conflict of laws).
Lato sensu it also includes international civil procedure and international
commercial arbitration (collisions of jurisdiction, conflict of jurisdictions), as well as
citizenship law (which strictly speaking is part of public
law).
There are two major streams of legal thought on the nature of conflict of laws. One group of researchers regard Conflict of
Laws as a part of international law, claiming that its norms are uniform, universal and obligatory for all states. This stream of
legal thought in Conflict of Laws is called "universalism". Other researchers maintain the view that each State creates its own
unique norms of Conflict of Laws pursuing its own policy. This theory is called "particularism" in Conflict of Laws.
Private international law is divided on two major areas:
- Private international law "sensu stricto" comprising conflict of laws rules which determine the law of which country (state)
is applicable to specific relations.
- Private international law "sensu lato" which comprises private international law "sensu stricto" (conflict of laws rules) and
material legal norms which have direct extraterritorial character and are imperatively applied (material norms of law crossing
the borders of State) - usually regulations on real property, consumer law, currency
control regulations, insurance and banking
regulations.
In common law systems, conflict of laws, firstly, is concerned with determining whether the proposed forum has
jurisdiction to adjudicate and is the appropriate venue for dealing with the dispute, and, secondly, with determining which of the competing state's laws are to be applied to resolve the dispute. It also deals with the enforcement of foreign judgments.
Terminology
Its three different names — conflict of laws, private international law, and international private law —
are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws
is primarily used in jurisdictions of the Anglo-Saxon legal tradition (United States, England, Canada, Australia, etc.);
private international law is used in France (droit international privé) as well as in Italy, the Spanish-speaking
and Portuguese-countries and Greece; international private law is used in Germany and the other German-speaking countries
(internationales Privatrecht)
Within local federal systems where inter-state legal conflicts require resolution, (such as in the United States), the term conflict of laws is preferred simply because such cases are not an
international issue. Hence the term conflict of laws is a more general term for a legal process for resolving similar
disputes, regardless whether the relevant legal systems are international or inter-state, though this term is also criticised as
being misleading in that the object is the resolution of conflicts
between competing systems rather than "conflict" itself. The term conflict of laws is usually used by common law
countries, while for civil law countries the term private international law is more appropriate. The term private
international law was coined by American lawyer and judge Joseph Story, but was
abandoned subsequently by common law scholars and embraced by civil law lawyers.
History
The first instances of conflict of laws can be traced to Roman law where parties from
foreign countries would go before a praetor perigrinus in Rome to plead their case. The praetor
perigrinus would often choose to apply the law applicable to non-Roman citizens (jus gentium) rather than Roman law per
se (jus civile).
The birth of the modern conflict of laws is generally considered to have occurred at Northern Italy of the late Middle Ages
and in particular at trading cities such as Genoa, Piza, and Venice. The need to adjudicate issues involving commercial
transactions between traders belonging to different cities led to the development of the theory of statuta, whereby
certain city laws would be considered as statuta personalia "following" the person whereby it may act, and other city laws
would be considered as statuta realia, resulting in application of the law of the city where e.g. the res would be
located (cf. lex rei sitae).
The modern field of conflicts emerged in the United States during the 19th century with the publishing of Joseph Story's treatise on the Conflict of Laws in 1834. Story's work had a great influence on the
subsequent development of the field in England such as those written by A.V. Dicey. Much of
the English law then became the basis for conflict of laws for most commonwealth countries.
The stages in a conflict case
- The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of
forum shopping.
- The next step is the characterisation of the cause of action into its
component legal categories which may sometimes involve an incidental question (also
note the distinction between procedural and substantive laws).
- Each legal category has one or more choice of law rules to determine which of the
competing laws should be applied to each issue. A key element in this may be the rules on renvoi.
- Once it has been decided which laws to apply, those laws must be proved before the forum court and applied to reach a
judgment.
- The successful party must then enforce the judgment which will first involve the task of
securing cross-border recognition of the judgment.
In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to be made on an ad hoc
basis, with such choice of law rules as have been developed embedded into each subject area of private law and tending to favour the application of the lex fori
or local law. In states with a more mature system, the set of Conflict rules stands apart from the local private civil law and
adopts a more international point of view both in its terminology and concepts. For example, in the European Union, all major jurisdictional matters are regulated under the Brussels Regime, e.g. the rule of lis alibi pendens
from Brussels 1 Regulation applies in the Member States and its
interpretation is controlled by the European Court of Justice rather than by
local courts. That and other elements of the Conflict rules are produced supranationally and implemented by treaty or convention. Because these
rules are directly connected with aspects of sovereignty and the extraterritorial
application of laws in the courts of the signatory states, they take on a flavour of public
rather than private law because each state is compromising the usual expectations of their own citizens that they will have
access to their local courts, and that local laws will apply in those local courts. Such aspects of public policy have direct constitutional
significance whether applied in the European context or in federated nations such as the
United States, Canada, and Australia where the courts have to
contend not only with jurisdiction and law conflicts between the constituent states or territories, but also as between state and
federal courts, and as between constituent states and relevant laws from other states outside the federation.
Choice of law rules
Courts faced with a choice of law issue have a two-stage process:
- the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice
of law rules); and
- 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 domicile (lex
domicilii) will define legal status and capacity, the law of the state in which land is situated (lex
situs) 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.
For example, suppose that Alexandre who has a French nationality and residence in Germany, corresponds with Bob who has
American nationality, domicile in Arizona, and residence in Austria, over the internet. They
agree the joint purchase of land in Switzerland, currently owned by Heidi who is a Swiss national, but they never physically
meet, executing initial contract documents by using fax machines, followed by a postal exchange of
hard copies. Alexandre pays his share of the deposit but, before the transaction is completed, Bob 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.
The rules to determine which courts would have jurisdiction and which laws would be applied to each aspect of the case are
defined in each state's laws so, in theory, no matter which court in which country actually accepts the case, the outcome will be
the same (albeit that the measure of damages might differ from country to country which is why forum shopping is such a problem).
In reality, however, moves to harmonise the conflictual system have not reached the point
where standardisation of outcome can be guaranteed.
Conflict of Law Rules in Matrimonial Cases
In divorce cases, when a Court is attempting to distribute marital property, if the divorcing couple is local and the property
is local, then the Court applies its domestic law lex fori. The work of the Judge, and the lawyers in the case becomes much more
complicated if foreign elements are thrown into the mix, such as the place of marriage is different than the territory where
divorce was filed, or the parties nationality and residence do not match. Or there is property in foreign jurisdictions, or the
parties have changed residence several times during the marriage. These are just a few examples, and each time a spouse invokes
the application of foreign law, the process of divorce slows down, as the parties are directed to brief the issue of conflict of
laws, hire foreign attorneys to write legal opinions, and translations of the foreign law are required, at an extensive cost to
both sides.
Different jurisdictions follow different sets of rules, as outlined below. Before embarking on a conflict of law analysis, the
Court must determine whether a property agreement governs the relationship between the parties. The property agreement must
satisfy all formalities required in the Country where enforcement is sought.
Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when married
couples enter a property agreement, stringent requirements are imposed, including notarization, witnesses, special acknowledgment
forms, and in some countries, it must be filed (or docketed) with a domestic Court, and the terms must be “so ordered” by a
Judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other.
Upon presenting a property agreement between spouses to a Court of divorce, that Court will generally assure itself of the
following factors: signatures, legal formalities, intent, later intent, free will, no oppression, reasonableness and fairness,
consideration, performance, reliance, later repudiation in writing or by conduct, and whatever else concepts of contractual
bargaining apply in the context.
In the absence of a valid and enforceable agreement, here’s how the conflict of law rules work:
- Movable v. Real Estate - In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied
to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has
been no subsequent change in the spouses’ domicile.
- Full Mutability Doctrine - property relations between spouses are governed by their latest domicile. , whether acquired
before or after the marriage. See S. 7(1)(b) of New Zealand Matrimonial Property Act. This is also the norm in England, except
for a few cases where severe injustice results from a harsh application. In those cases, the Court also examines whether newly
acquired property can be traced back to property owned before the change.
- Immutability Doctrine - the original personal law of the parties at the time of marriage continues to govern all property
including subsequently acquired property, regardless of a later change in domicile or nationality. This is the Continental
approach in France, Germany and Belgium. Also, with certain reservations, see Art. 7 of the 1976 Hague Convention on Marriage and
Matrimonial Property Regimes. Also in Israel, Section 15 of the Spouses (Property Relations) Law of 1973: “property relations
between spouses shall be governed by the law of their domicile at the time of the solemnisation of the marriage, provided that
they may by agreement determine and vary such relations in accordance with the law of their domicile at the time of making the
agreement”. Note that the Israeli application of the Immutability doctrine does not distinguish between personal and real estate
property. Both are subject to the law of domicile at marriage.
- Partial Mutability or Mutability of new Acquisition - this is the American approach to conflicts of law in matrimonial
property division cases. Each movable property acquired during the marriage is subject to the parties’ domicile law at the time
of acquisition, and not that of the original or intermediate domicile. What was acquired before the marriage is governed by the
domicile law at marriage. Thus, if rights vested in a property when and where purchased, it would not be adversely affected by a
later change of domicile.
- Lex Fori - In many cases, Courts simply avoid this complicated and expensive analysis by applying its local law to the entire
property relations, even if there is a foreign element. This is based on the assumption that laws around the world are basically
similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law
applies to all its aspects.
Note that Lex Fori also applies to all procedural relief (as opposed to substantive relief). Thus, issues such as the ability
to grant pretrial relief, procedure and form, as well as statutes of limitations are classified as “procedure” and are always
subject to domestic law where the divorce case is pending.
Pre-dispute provisions
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). Then, 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. Judges have
accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction.
Obviously, this judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors, but
it does work well in practice.
The status of foreign law
Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as
the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law
may be considered no more than evidence, rather than law because of the issue of
sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so
acting in a way that is potentially unconstitutional. The theoretical responses to this issue are:
- (a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a
just outcome; or
- (b) that the local court creates a right in its own laws to match that available under the foreign law. This explanation is
sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts
case can only apply to future conflicts cases. There will be no ratio decidendi that
binds future litigants in entirely local cases.
- (c) that the notional court, when applying a foreign law, doesn't give an extraterritorial effect but recognize, through its
own "conflict of laws rule", that the situation at hand falls under the scope of application of the foreign rule. In order to
understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible
to two distinct meanings:
On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex
fori (local law).
On the other hand, it could mean that the rule is being applied to a factual situation that occurred beyond the territory of
its state of origin. As an example of this situation, one can think of an American court applying British tort statutes and case
law to a car accident that took place in London where both the driver and the victim are British
citizens but the lawsuit was brought in before the American courts because the driver's insurer is American. One can then argue
that, since the factual situation is within the British territory, where an American judge applies the English Law, he does not
give an extraterritorial application to the foreign rule. In fact, one can also argue that the American judge, had he applied
American Law, would be doing so in an extraterritorial fashion.
Once the lex causae has been selected, it will be respected except when it appears
to contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his or her own principles of
ordre public (public order) and the parties cannot, by their own act, oust the fundamental principles of the local
municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes,
import-export regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases where an
application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect
to confiscatory or other territorially limited laws.
In some countries, there is occasional evidence of parochialism when courts have determined that if the foreign law cannot be
proved to a "satisfactory standard", then local law may be applied. In the United Kingdom, in the absence of evidence being led,
the foreign law is presumed to be the same as the lex fori. Similarly, judges might assume in default of express evidence
to the contrary that the place where the cause of action arose would provide certain basic protections, e.g. that the foreign
court would provide a remedy to someone who was injured due to the negligence of another. Finally, some American courts have held
that local law will be applied if the injury occurred in an "uncivilized place that has no law or legal system." See Walton v.
Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956).
If the case has been submitted to arbitration rather than a national court, say because
of a forum selection clause, an arbitrator may decide not to apply local mandatory policies in the face of a choice of law by the
parties if this would defeat their commercial objectives. However, the arbitral award may be challenged in the country where it
was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have
been applied. If the lex loci arbitri has been ignored, but there was no real
and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement
is sought may well accept the tribunal's decision. But if the appeal is to the courts in the state where the arbitration was
held, the judge cannot ignore the mandatory provisions of the lex fori.
Harmonisation
To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests
may always be better protected by applying a law conceived with international realities in mind. The Hague Conference on Private International Law is a treaty organisation
that oversees conventions designed to develop a uniform system. The deliberations of the conference have recently been the
subject of controversy over the extent of cross-border jurisdiction on electronic
commerce and defamation issues. There is a general recognition that there is a need
for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale
of Goods, the Rome Convention on the Law Applicable to Contractual
Obligations offers less specialised uniformity, and there is support for the UNIDROIT Principles of International Commercial
Contracts, a private restatement, all of which represent continuing efforts to produce international standards as the
internet and other technologies encourage ever more interstate commerce. But other branches of the law are less well served and
the dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which
has institutions capable of creating uniform rules with direct effect, has failed to
produce a universal system for the common market. Nevertheless, the Treaty of Amsterdam does confer authority on the Community's
institutions to legislate by Council Regulation in this area with supranational effect. Article 177 would give the Court of
Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in
letter. Whether the domestic courts of the Member States would be consistent in applying those letters is speculative.
References
Further reading
- American Law Institute. Restatement of the Law, Second: Conflict of Laws. St. Paul: American Law Institute.
- Dicey and Morris on the Conflict of Laws (13th edition) (edited by Albert V. Dicey, C.G.J. Morse, McClean, Adrian Briggs,
Jonathan Hill, & Lawrence Collins). London: Sweet & Maxwell 2000.
- Briggs, Adrian, The Conflict of Laws, Oxford: Oxford University Press 2002.
- North, Peter & Fawcett James. (1999). Cheshire and North's Private International Law (13th edition). London:
Butterworths.
- Reed, Alan. (2003). Anglo-American Perspectives on Private International Law. Lewiston, N.Y.: E. Mellen Press.
See also
External links
This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)
