Dépeçage

Last updated • 2 min readFrom Wikipedia, The Free Encyclopedia

In law, dépeçage (from the French, meaning "dismemberment") is a concept within the field of conflict of laws whereby different issues within a single case are governed by the laws of different jurisdictions. In common law countries, dépeçage can be used when a single contract provides that different parts of the contract shall be governed by different laws, [1] or in the absence of a contract when a court's own rules on choice of law cause it to apply different bodies of law to different questions. [2]

Contents

The concept originated in civil law countries, but has also been adopted in common law countries such as the United Kingdom and Ireland pursuant to the Rome Convention on the law applicable to contractual obligations (Article 3(1)).

In practice, it is relatively rare for a contract to have more than one expressly chosen governing law. Two examples of such situations are:

Related Research Articles

In finance, a derivative is a contract that derives its value from the performance of an underlying entity. This underlying entity can be an asset, index, or interest rate, and is often simply called the underlying. Derivatives can be used for a number of purposes, including insuring against price movements (hedging), increasing exposure to price movements for speculation, or getting access to otherwise hard-to-trade assets or markets.

Conflict of laws 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. 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. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law.

The International Swaps and Derivatives Association is a trade organization of participants in the market for over-the-counter derivatives.

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 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.

In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.

In conflict of laws, the term lex loci is a shorthand version of the choice of law rules that determine the lex causae.

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.

<span class="mw-page-title-main">Convention on the Law Applicable to Contractual Obligations 1980</span> Choice of law in contract disputes

The Convention on the Law Applicable to Contractual Obligations 1980, also known as 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.

In law, set-off or netting is a legal technique applied between persons or businesses with mutual rights and liabilities, replacing gross positions with net positions. It permits the rights to be used to discharge the liabilities where cross claims exist between a plaintiff and a respondent, the result being that the gross claims of mutual debt produce a single net claim. The net claim is known as a net position. In other words, a set-off is the right of a debtor to balance mutual debts with a creditor.

The Rome II Regulation (EC) No 864/2007 is a European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation created a harmonised set of rules within the European Union to govern choice of law in civil and commercial matters concerning non-contractual obligations. Additionally, in certain circumstances and subject to certain conditions, the parties may choose the law applicable to a non-contractual obligation. Analogous rules were established for contractual obligations by the Rome Convention of 1980. The Rome Convention has, in turn, been replaced by the Rome I Regulation on the law applicable to contractual obligations. The regulation applies to all EU member states except Denmark.

<span class="mw-page-title-main">Contract</span> Legally binding document establishing rights and duties between parties

A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of those at a future date. The activities and intentions of the parties entering into a contract may be referred to as contracting. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or equitable remedies such as specific performance or rescission. A binding agreement between actors in international law is known as a treaty.

<span class="mw-page-title-main">Rome I Regulation</span>

The Rome I Regulation is a regulation which governs the choice of law in the European Union. It is based upon and replaces the Convention on the Law Applicable to Contractual Obligations 1980. The Rome I Regulation can be distinguished from the Brussels Regime which determines which court can hear a given dispute, as opposed to which law it should apply. The regulation applies to all EU member states except Denmark.

The ISDA Master Agreement, published by the International Swaps and Derivatives Association, is the most commonly used master service agreement for OTC derivatives transactions internationally. It is part of a framework of documents, designed to enable OTC derivatives to be documented fully and flexibly. The framework consists of a master agreement, a schedule, confirmations, definition booklets, and credit support documentation.

Financial law is the law and regulation of the commercial banking, capital markets, insurance, derivatives and investment management sectors. Understanding financial law is crucial to appreciating the creation and formation of banking and financial regulation, as well as the legal framework for finance generally. Financial law forms a substantial portion of commercial law, and notably a substantial proportion of the global economy, and legal billables are dependent on sound and clear legal policy pertaining to financial transactions. Therefore financial law as the law for financial industries involves public and private law matters. Understanding the legal implications of transactions and structures such as an indemnity, or overdraft is crucial to appreciating their effect in financial transactions. This is the core of financial law. Thus, financial law draws a narrower distinction than commercial or corporate law by focusing primarily on financial transactions, the financial market, and its participants; for example, the sale of goods may be part of commercial law but is not financial law. Financial law may be understood as being formed of three overarching methods, or pillars of law formation and categorised into five transaction silos which form the various financial positions prevalent in finance.

<i>Lomas v JFB Firth Rixson Inc</i> 2012 English series of co-joined appeals

Lomas v JFB Firth Rixson Inc[2012] EWCA Civ 419 is the name of a series of co-joined appeals heard by the English Court of Appeal in relation to the efficacy of certain provisions under the standard form ISDA Master Agreement. Four appeals were consolidated into a single hearing, and in a comprehensive joint judgment delivered by Lord Justice Longmore the Court attempted to provide definitive resolutions to various issues of interpretation which had given rise to conflicting judgments at first instance. One academic commentator has referred to the case as a "comprehensive judgment [which] masterfully resolved a number of conflicting strands of jurisprudence".

<span class="mw-page-title-main">Credit Suisse International v Stichting Vestia Groep</span>

Credit Suisse International v Stichting Vestia Groep[2014] EWHC 3103 (Comm) was a decision of the High Court of Justice relating to the doctrine of ultra vires and the effect of contractual representations made under an ISDA Master Agreement on the doctrine.

<i>Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC</i>

Raiffeisen Zentralbank Österreich AG v Five Star General Trading LLC[2001] EWCA Civ 68, [2001] QB 825 is a judicial decision of the Court of Appeal of England and Wales relating to the conflict of laws.

References

  1. Broome v. Antler's Hunting Club 595 F.2d 921, 923 (3d Cir. 1979); Don King Productions, Inc. v. Douglas, 742 F.Supp.2d 786, 791 (S.D.N.Y. 1990)
  2. In re Air Crash Disaster near Chicago, 664 F.2d 594, 610-11 (7th Cir. 1981)

Further reading