Procedure in conflict of laws

Last updated May 03, 2019

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.

Lex fori is a legal term used in the conflict of laws to refer to the laws of the jurisdiction in which a legal action is brought. 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 govern procedural matters.

A jurisdiction is an area with a set of laws under the control of a system of courts or government entity which are different from neighbouring areas.

What issues are procedural?

This is a part of the process called characterisation. Issues identified as procedural include the following:

By initiating the action before the forum court, the plaintiff is asking for the grant of the local remedies. This will not be a problem so long as the form of the relief is broadly similar to the relief available under the lex causae , i.e. the law selected under the choice of law rules. But forum courts may refuse a remedy in two situations:

A court is any person or institution with authority to judge or adjudicate, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all people have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.

A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy; if this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order. "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exception being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant", but that term also has other meanings. In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

Lex causae, 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.

if the effect of granting the relief sought would offend against the public policy of the forum court;

if the effect of the relief would be so different from that available under the lex causae that it makes the right sought to be enforced a different right. For example, in English law, the court was asked in Phrantzes v Argenti [1960] 2 QB 19 to enforce a Greek marriage dowry agreement. Although the forum had no public policy objections and agreed that such agreements were enforceable, relief was denied because there were no local rules to calculate the amount to be paid. A different result would have been achieved if the agreement had stipulated a liquidated sum to be paid. Thus, in Shahnaz v Rizwan [1965] 1 QB 390, a deferred mahr (dowry) was enforced as part of an ante-nuptial agreement made in India in consideration of marriage at a time when ante-nuptial agreements were not generally enforceable under English law. The judge accepted the difference between maintenance and a dowry, and enforced payment as a right ex contractu rather than as a matrimonial right. Hence, a remedy was granted to enforce a right in personam , enforceable by the wife or widow against the husband or his heirs. The same result is achieved in the United States, see Aziz v. Aziz [1985] where a New York court enforced a deferred mahr of $5,000 because the terms of the contract complied with New York's General Obligations Law. The court rejected the husband's claim that it was a matrimonial action.

The local law determines who can sue and be sued as parties to the action. The case law on this question is not very consistent. For example, the English court held in Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB 682 that a dead person cannot be a party to an action even though this was possible under the lex causae. However, if a foreign entity has legal personality under the law where it was established, it can be a party to English proceedings. Thus, in Bumper Development Corp. v Commissioner of Police for the Metropolis [1991] 1 WLR 1362 an Indian temple that was "little more than a pile of stones" could be a party.
All questions of evidence to determine the admissibility and probative value of evidence and whether a witness is competent, are dealt with under the lex fori, except that presumptions, both rebuttable and irrebuttable, are usually rules of substance. In some cases, the application of the lex fori makes sense—after all, if the forum rules require legal documents to be printed in a twelve-point font, and the choice of law state requires the same documents to be printed in a fourteen-point font, it makes little sense to require the court to determine which font size should be used in a choice of law dispute. However, many contentious cases have centred on findings that issues such as the burdens of proof, the admissibility of evidence, and statutes of limitations are procedural rather than substantive, because these rules can change the outcome of a case.
In the Law of Contract Article 10(c) EC Convention on the Law Applicable to Contractual Obligations (Rome 1980) provides that the assessment of damages is a matter for the lex causae. In other cases, the cause of action will give rise to issues that are both procedural and substantive. For example, in tort questions of remoteness and causation will be determined by the lex causae whereas the quantification of damages will be determined by the lex fori.
The status of statutes of limitations is usually regarded as having public policy implications, particularly where foreign periods are either very long or very short. In extreme cases, the lex fori will be applied to protect the interests of vulnerable parties, e.g. the English court held in Jones v Trollope Colls Cementation, The Times, January 26, 1990, that a foreign limitation period of twelve months would be ignored because the plaintiff had spent a significant proportion of this time in hospital and had been led to believe her claim would be met. In the U.S., statutes of limitations would normally be considered procedural, but most states have enacted so-called borrowing statutes, which "borrow" the statute of limitations for the cause of action from the state in which the cause of action arose.
The lex fori determines whether a foreign judgment can be recognised and, if so, how it will be enforced, e.g. what property belonging to the defendant may be taken to satisfy the judgment (see enforcement of foreign judgments). But in the Law of Contract, this is subject to Article 10 of the Rome Convention 1980 which provides that the applicable law governs the consequences of breach, including the quantification of damages.

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

Both in common law and in civil law, a rebuttable presumption is an assumption made by a court that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty. A rebuttable presumption is often associated with prima facie evidence.

Font Particular size, weight and style of a typeface

In metal typesetting, a font was a particular size, weight and style of a typeface. Each font was a matched set of type, one piece for each glyph, and a typeface consisting of a range of fonts that shared an overall design.

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.

Related Research Articles

A legal remedy, also judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.

Forum non conveniens (FNC) is a (mostly) common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state.

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.

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.

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.

Incidental questions in private international law with respect to the problems and elements discussed below

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.

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.

The lex domicilii 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.

In the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".

Lex loci solutionis, in conflict of laws, is the law applied in the place of an event.

The lex loci delicti commissi is the Latin term for "law of the place where the delict [tort] was committed" 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 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.

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.

Arbitration technique for the resolution of disputes

Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons, which renders the "arbitration award". An arbitration award is legally binding on both sides and enforceable in the courts.

Guaranty Trust Co. v. York, 326 U.S. 99 (1945), was a United States Supreme Court case that described how federal courts were to follow state law. Justice Frankfurter delivered the majority opinion further refining the doctrine set forth in Erie Railroad Co. v. Tompkins.

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), was a United States Supreme Court case involving the Alien Tort Statute and the Federal Tort Claims Act.