When a case comes before a court, if the main features of the case (particularly the parties and the causes of action) are local, the court will then apply the lex fori, the prevailing municipal law, to decide the case. However, if there are "foreign" elements to the case, the court may then be obliged, under conflict of laws, to consider whether it has jurisdiction to hear the case (see forum shopping). The court must then characterise the issues to allocate the factual basis of the case to its relevant legal classes. The court may then be required to apply the choice of law rules to decide the lex causae, the law to be applied to each cause of action.[3]
Relevant rules include the following.
Lex causae
Lex causae (Latin for "law of the cause"), in conflict of laws, is the law chosen by the forum court from the relevant legal systems when it judges an international or interjurisdictional case. It refers to the usage of particular local laws as the basis or "cause" for the ruling, which would itself become part of referenced legal canon.
Conflict of laws regulates all lawsuits involving foreign law if the outcome of a legal action would differ by the laws applied. Once the forum court has ruled that it has jurisdiction to hear the case, it must then decide which possible law is to be applied.
Lex concursus
The lex concursus (or, sometimes, lex fori consursus) is the Latin term for the "law of the place of insolvency proceedings" relating to cross-border insolvency.[4][5] It is also sometimes used more generally in relation to the distribution of a limited fund within the control of the court.[6]
Lex domicilii
The lex domicilii or lex loci domicilii[2] is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
Lex fori
Lex fori (Latin: the law of the forum) is a choice of law rule. If applicable, it provides that the law of the jurisdiction or venue in which a legal action is brought applies.[7][2]
When a court decides that it should, by reason of the principles of conflict of law, resolve a given legal dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still governs procedural matters.[8]
Lex loci actus
In the conflict of laws, lex loci actus or lex actus[2] is the law of the place where the act occurred that gave rise to the legal claim. This is often confused with lex loci delicti commissi which is where the tort is committed. While typically they both point to the same location, in the case of product liability, for example, the lex loci actus would be the place of manufacturing, while the lex loci delicti commissi would be the place of injury.
Lex loci arbitri
The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:
it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci arbitri is an element in the choice of law rules applied to cases testing the validity of a contract. As an aspect of the public policy of freedom of contract, the parties to an agreement are free to include a forum selection clause and/or a choice of law clause and, unless there is a lack of bona fides, these clauses will be considered valid. If there is no express selection of a proper law, the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific geographical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen a state as the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be the lex causae applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.
Lex loci celebrationis
Lex loci celebrationis is a Latin term for a legal principle in English common law, roughly translated as "the law of the land (lex loci) where it was celebrated". It refers to the validity of the union, independent of the laws of marriage of the countries involved: where the two individuals have legal nationality or citizenship, or where they live (reside or are domiciled). The assumption under the common law is that such a marriage, when lawfully and validly celebrated under the relevant law of the land, is also lawful and valid. [citation needed]
British legal tradition
In the United Kingdom, the jurisdiction of England, or England and Wales, as well as in many other legal jurisdictions largely or partly following the British tradition of jurisprudence, in addition to their modified local versions of the English common law, the legal principle behind the legal term was modified, qualified and further elaborated, both by legal developments in the common law (Lord Dunedin's Berthiaume v D'Astous case (HL 1930) (AC 79), in which Dunedin in the Appellate Committee of the House of Lords ruled that "If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceedings or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremonial proceedings if conducted in the place of the parties’ domicile would be considered a good marriage"), as well as by codification by Statute (Foreign Marriage Act 1892, 55 & 56 Vict., Chapter 23). [citation needed] Under the English common law, whether a party needs to be present is treated as a formality of the marriage ceremony, so if a proxy marriage is valid by the law of the place where the marriage was celebrated then it will be recognised in England.[9][10]
In the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".[11][2]
Lex loci delicti commissi
The lex loci delicti commissi or lex loci delictus[2] is the Latin term for "law of the place where the delict [tort] was committed"[12] in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
The term is often shortened to lex loci delicti.
Lex loci protectionis (Schutzlandprinzip)
Lex loci protectionis (Latin: "[the] law of the place where the protection is [claimed]") is a choice of law rule applied to cases concerning the infringement of intellectual property (IP) rights, such as copyrights or patents.
It stipulates that the law applied to such cases is the law of the locus protectionis, that is, the law of the country for which legal protection for the intellectual property is claimed.[13] Consequently, the law of the country where the intellectual property was created or registered is not applied.
Lex loci protectionis is generally accepted as the prevailing choice of law rule for IP rights, at least as concerns the existence, validity, scope and duration of the rights.[13] Article 8 (1) of the European Union's Rome II Regulation codifies it as follows:
The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.
Lex loci rei sitae (or Lex situs)
Lex loci rei sitae (Latin for "law of the place where the property is situated"), or simply lex situs,[14] is the doctrine that the law governing the transfer of title to property is dependent upon and varies with the location of the property, for the purposes of the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element if a difference in result will occur, depending on which laws are applied.
Lex loci solutionis
Lex loci solutionis (Latin: "law of the place of performance"), in conflict of laws, is the law applied in the place of an event.
Lex loci solutionis is one of the possible choice of law rules applied to cases that test the validity of a contract or that deal with a tort. For example, if a person domiciled in Bolivia and a person habitually resident in Germany make a contract by e-mail and agree to meet in Arizona to research a book, there would be several possibly-relevant choice of law rules:
the lex domicilii, lex patriae or the law of habitual residence to determine whether the parties had the capacity to enter into the contract;
lex loci contractus, which could be difficult to establish since both parties never left their own state (reliance on postal rules for offer and acceptance in the several putative lex causae might produce different results)
lex loci solutionis might be the most relevant since Arizona is the most closely connected to the substance of the obligations assumed
lex fori, which might have public policy issues if one of the parties is a minor.
Lex patriae
Lex patriae (Latin: law of the fatherland, in modern usage, nationality law), in conflict of laws, is the system of public law applied to a lawsuit if a choice is to be made between two or more laws that would change the outcome.
In law, locus in quo refers to "the place where the cause of action arose", that is, the land to which the defendanttrespassed.[19] It may also be used, more generally, as any place mentioned, that is, the venue or place mentioned.[20][21]
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.
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.
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 all lawsuits involving conflict of laws, questions of procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.
Incidental questions in private international law with respect to the problems and elements discussed below
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.
The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws.
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:
Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
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.
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.
An ecclesiastical judge is an ecclesiastical person who possesses ecclesiastical jurisdiction either in general or in the strict sense. Up until 1858 when Ecclesiastical courts were abolished, ecclesiastical judges tried church clergy men in church courts or Ecclesiastical courts. Charges dealt in these courts were often very lenient, especially when dealt to church clergymen.
Boys v Chaplin [1971] AC 356 is a leading conflict of laws case decided by the House of Lords.
The Brussels I Regulation contains a jurisdictional regime: the rules which courts of European Union Member States use to determine if they have jurisdiction in cases with links to more than one country in the European Union. The basic principle is that the court in the member state of the party that gets sued has jurisdiction, while other grounds exist, which are diverse in content and scope, and are often classified in descending order of exclusivity and specificity. The original Brussels Regulation (44/2001) is, with regard to jurisdiction rules, very similar to the 2007 Lugano Convention, containing the same provisions with the same numbering. Numbering and certain substantial issues are different in the 2012 recast version of the Regulation, which has applied since 1 January 2015 (1215/2012).
Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 is a judicial decision of the Privy Council relating to choice of law in tort. The case was an appeal from the decision of the Court of Appeal of Hong Kong, but as the case was decided in Hong Kong pursuant to the English Law Ordinance, section 3(1), it is also taken to be an authoritative statement of English law.
The First South American Congress of Private International Law was an international congress on private international law and an ad-hoc codifier forum of international conflict of laws treaties held in Montevideo from 25 August 1888 to 18 February 1889, in which eight treaties and an additional protocol were passed that covered practically all the subjects of conflicts of laws of that time. These were one of the first treaties on conflict of laws to come into force in the world.
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