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| Conflict of laws and private international law |
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| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws. [1]
When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are substantive differences, the choice of which law to apply will produce a different judgment. Each state, therefore, produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the proper law. This is the law that seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied. The term "proper" refers back to the older English sense as being "proper to". In other words, the law proper to the contract or the contractual term or issue involved.
All laws, to a greater or lesser extent, are reflections of the public policies of the state that enacted them. The more important the policy to the society, the greater the claim of the relevant law to be applied. Thus, if laws exist to protect citizens, the law of the place where loss or damage is sustained might have a strong claim to apply: e.g. in a traffic accident, two cars collide because of faulty maintenance and both drivers are injured –the local laws exist to provide some degree of protection for all those who use the roads in that state, setting minimum standards for the design and maintenance of vehicles, specifying what levels of insurance should be carried, setting the minimum age and qualifications for the right to drive, etc.
But the problem with accepting the claim of anyone state to have its law apply is that the result may be somewhat arbitrary. So, in the example given, if neither driver had a residence in the state, and the cars were both maintained outside the state, the laws of other states may have an equal or better claim to apply. The advantage of the proper law approach is that it builds in flexibility rather than offering a mechanical rule. Suppose that there is a contract between an Italian company and an English partnership for the sale of goods made in Greece to be shipped from Belgium on a ship flying the flag of Panama to a Swedish port. Adopting a rule such as the lex loci contractus , i.e. apply the law of the place where the contract was made, might actually select a law having no other connection with the substance of the bargain made by the parties. Similarly, picking the lex loci solutionis , i.e. the law of the place where the contract is to be performed, may prove to be equally irrelevant, assuming that there is only one place where performance is to occur: in the example, there is manufacture in Greece, delivery to Belgium, loading in Belgium, carriage on the high seas, and unloading in Sweden. So, if the contract does not make an express selection of the law to apply (see the choice of law clause), the parties are deemed to have chosen to be bound by the law with which the contract has the closest and most real connection.
The general rule is that the proper law is the primary system of law that governs most aspects of the factual situation giving rise to the dispute. This does not imply that all the aspects of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the case (see characterization). So, the process of legal analysis undertaken by the courts in each case identifies all the facts that have a specific geographical connection, e.g. where the parties reside or their businesses operate, where an agreement was made, where relevant actions were performed, etc. Once all the relevant connecting factors have been identified, the law of the state that has the greatest number of connections will be the proper law. In the event of a tie, the connecting factors which relate to performance will be given greater weight than the connecting factors affect form. In most cases, this weighting will produce a clear winner.
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.
In contract law, a choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction. An example is "This Agreement shall be governed by, and construed in accordance with, the law of the State of New York."
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 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.
Macmillan Inc v Bishopsgate Investment Trust plc [1995] EWCA Civ 55, [1996] WLR 387 is a judicial decision relating to English trusts law and conflict of laws case from the Court of Appeal. The issue arose in relation to frauds conducted by the late Robert Maxwell.
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 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 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.
A maritime lien, in English and US law and elsewhere, is a specific aspect of admiralty law concerning a claim against a ship for services rendered to it or injury caused by it.
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.
Huber v Steiner (1835) 2 Bing (NC) 202 was a judicial decision of the English Court of Common Pleas relating to choice of law issues in connection with a promissory note.
