| Conflict of laws and private international law |
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| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
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, [2] but they are especially prevalent in contract law [3] [4] [5] [6] [7] [8] [9] [10] and tort law. [11]
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. Elsewhere, the term private international law is commonly used. [1] Some scholars from countries that use conflict of laws consider the term private international law confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; 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 enforceable). [12] The term private international law comes from the private law/public law dichotomy in civil law systems. [13] [14] In this form of legal system, the term private international law does not imply an agreed upon international legal corpus, but rather refers to those portions of domestic private law that apply to international issues.
Importantly, while conflict of laws generally deals with disputes of an international nature, the applicable law itself is domestic law. This is because, unlike public international law (better known simply as international law), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which a country is party.
Moreover, in federal republics where substantial lawmaking occurs at the subnational level—notably in the United States—issues within conflict of laws often arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than of foreign countries.
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. [15] : 9–10 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. [15] : 9–10 Initially, the mode of this body of law was simply to determine which jurisdiction's law would be most fair to apply; over time, however, the law came to favor more well-defined rules. [15] : 12–13 These rules were systematically summarized by law professor Bartolus de Saxoferrato in the middle of the fourteenth century, [15] : 13 a work that came to be cited repeatedly for the next several centuries. [16]
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] : 20–28 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. [15] : 28 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. [15] : 30 Scholars began to consider ways to resolve the question of how and when formally equal sovereign States ought to recognize each other's authority. [17] The doctrine of comity was introduced as one of the means to answer these questions. [17] Comity has undergone various changes since its creation. However, it still refers to the idea that every State is sovereign; often, the most just exercise of one State's authority is by recognizing the authority of another through the recognition and enforcement of another state's laws and judgments. [18] Many states continue to recognize the principle of comity as the underpinning of private international law such as in Canada. [19] In some countries, such as the United States of America and Australia, the principle of comity is written into the State's constitution. [20]
In the United States, salient 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 [21] (a type of case specifically assigned to the federal courts [22] ). Within the first two decades following ratification of the Constitution, over one hundred cases dealt with these issues, though the term conflict of laws was not yet used. [21] : 235–36 The Constitution created a "plurilegal federal union" in which conflicts are inherently abundant, [23] : 6 and as a result, American judges encounter conflicts cases far more often—about 5,000 per year as of the mid-2010s—and have accumulated far more experience in resolving them than anywhere else in the world. [23] : 10
Alongside domestic developments relating to conflict of laws, the nineteenth century also saw the beginnings of substantial international collaboration in the field. The first international meeting on the topic took place in Lima in 1887 and 1888; delegates from five South American countries attended, but failed to produce an enforceable agreement. [24] The first major multilateral agreements on the topic of conflict of laws arose from the First South American Congress of Private International Law, which was held in Montevideo from August 1888 to February 1889. [24] The seven South American nations represented at the Montevideo conference agreed on eight treaties, which broadly adopted the ideas of Friedrich Carl von Savigny, determining applicable law on the basis of four types of factual relations (domicile, location of object, location of transaction, location of court). [24]
Soon after, European nations gathered for a conference in The Hague organized by Tobias Asser in 1893. [25] : 76 This was followed by successive conferences in 1894, 1900, and 1904. [25] : 76 Like their counterparts in Montevideo, these conferences produced several multilateral agreements on various topics within conflict of laws. [25] : 76–77 Thereafter, the pace of these meetings slowed, with the next conventions occurring in 1925 and 1928. [25] : 77 The seventh meeting at The Hague occurred in 1951, at which point the sixteen involved states established a permanent institution for international collaboration on conflict-of-laws issues. [25] : 77 The organization is known today as the Hague Conference on Private International Law (HCCH). As of December 2020 [update] , HCCH includes eighty-six member states. [26]
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. [27] This was followed in 1980 by the Rome Convention, which addressed choice-of-law rules for contract disputes within EU member states. [28] In 2009 and 2010, respectively, the EU enacted the Rome II Regulation to address choice-of-law in tort cases [11] and the Rome III Regulation to address choice-of-law in divorce matters. [29]
One of the key questions addressed within conflict of laws is the determination of when the legislature of a given jurisdiction may legislate, or the court of a given jurisdiction can properly adjudicate, regarding a matter that has extra-jurisdictional dimensions. This is known as jurisdiction (sometimes subdivided into adjudicative jurisdiction, the authority to hear a certain case, and prescriptive jurisdiction, the authority of a legislature to pass laws covering certain conduct). [30] : 57–58 Like all aspects of conflict of laws, this question is in the first instance resolved by domestic law, which may or may not incorporate relevant international treaties or other supranational legal concepts. [31] : 13–14 That said, relative to the other two main subtopics of conflicts of law (enforcement of judgements, and choice of law, which are both discussed below), the theory regarding jurisdiction has developed consistent international norms. This is perhaps because, unlike the other subtopics, jurisdiction relates to the particularly thorny question of when it is appropriate for a country to exercise its coercive power at all, rather that merely how it should do so. [31] : 1–4
There are five bases of jurisdiction generally recognized in international law. These are not mutually exclusive; an individual or an occurrence may be subject to simultaneous jurisdiction in more than one place. [31] : 15, 23 They are as follows:
Countries have also developed bodies of law for adjudicating jurisdiction disputes between subnational entities. For example, in the United States, the minimum contacts rule derived from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution regulates the extent to which one state can exercise jurisdiction over people domiciled in other states, or occurrences that took place in other states.
Courts faced with a choice of law issue have a two-stage process:
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'. [36]
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; [37] 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. [38]
Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.
The Hague Conference on Private International Law (HCCH) is an intergovernmental organisation in the area of private international law, that administers several international conventions, protocols and soft law instruments.
In law, comity is "a principle or practice among political entities such as countries, states, or courts of different jurisdictions, whereby legislative, executive, and judicial acts are mutual recognized." It is an informal and non-mandatory courtesy to which a court of one jurisdiction affords to the court of another jurisdiction when determining questions where the law or interests of another country are involved. Comity is founded on the concept of sovereign equality among states and is expected to be reciprocal.
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.
In contract law, a forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.
In conflict of laws, renvoi is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.
Characterisation, or characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law.
In the conflict of laws, the validity and effect of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.
Conflict of laws in the United States is the field of procedural law dealing with choice of law rules when a legal action implicates the substantive laws of more than one jurisdiction and a court must determine which law is most appropriate to resolve the action. In the United States, the rules governing these matters have diverged from the traditional rules applied internationally. The outcome of this process may require a court in one jurisdiction to apply the law of a different jurisdiction.
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.
In conflict of laws, the term lex loci is a shorthand version of the choice of law rules that determine the lex causae.
In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:
In contract law, the lex loci contractus is the Law Latin term meaning "law of the place where the contract is made". It refers to resolving contractual disputes among parties of differing jurisdictions by using the law of the jurisdiction in which the contract was created.
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute or entitlement. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing.
The Hague Convention on the Law Applicable to Trusts and on their Recognition, or Hague Trust Convention is a multilateral treaty developed by the Hague Conference on Private International Law on the Law Applicable to Trusts. It concluded on 1 July 1985, entered into force 1 January 1992, and is as of September 2017 ratified by 14 countries. The Convention uses a harmonised definition of a trust, which is the subject of the convention, and sets conflict rules for resolving problems in the choice of the applicable law. The key provisions of the Convention are:
The Convention on the Law Applicable to Contractual Obligations 1980, or the "Rome Convention", is a measure in private international law or conflict of laws which creates a common choice of law system in contracts within the European Union. The convention determines which law should be used, but does not harmonise the substance. It was signed in Rome, Italy on 19 June 1980 and entered into force in 1991.
The principle of lis alibi pendens applies in municipal law, public international law, and private international law to address the problem of potentially contradictory judgments. If two courts were to hear the same dispute, it is possible they would reach inconsistent decisions. To avoid the problem, there are two rules.
The Hague Convention on parental responsibility and protection of children, or Hague Convention 1996, officially Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Hague Convention 1996 is a convention of the Hague Conference on Private International Law. It covers civil measures of protection concerning children, ranging from orders concerning parental responsibility and contact to public measures of protection or care, and from matters of representation to the protection of children's property. It is therefore much broader in scope than two earlier conventions of the HCCH on the subject.
International matrimonial law is an area of private international law. The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the States Members of the Hague Conference on Private International Law have attempted to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas.
The Hague choice of court convention, formally the Convention of 30 June 2005 on Choice of Court Agreements, is an international treaty concluded within the Hague Conference on Private International Law. It was concluded in 2005, and entered into force on 1 October 2015. The European Union, Denmark, Mexico, Singapore, Ukraine and the United Kingdom are parties to the convention. China, Israel, North Macedonia, Ukraine and the United States signed the convention, but did not ratify.
