Robles Notes on Conflict of Laws Principles

ROBLES NOTES ON CONFLICT OF LAWS
TRANSCRIBED BY L+A 2014A
acts done within it. A State may, therefore, regulate the manner and
circumstances under which property, whether real or personal or in
action, within it shall be held, transmitted, bequeathed, or transferred, or
enforced; the condition, capacity, and state of all persons within it; the
resulting rights and duties growing out of these contracts and acts; and
the remedies, and modes of administering justice, in all cases calling for
the interposition of its tribunals to protect, vindicate, and secure the
wholesome agency of its own laws within its own domain.
CONFLICT OF LAWS
INTELLECTUAL HISTORY
There is a general recognition that conflict of laws rests on a
general principle of territoriality that comes from public international law
that is, that states have the right to regulate the activities and persons
within their territories and, conversely, have no right to regulate conduct
or persons beyond their borders.
No State or nation can, by its laws, directly affect or bind

property out of its own territory, or persons not resident therein, whether
they are natural born subjects or others. This is a natural consequence of
the first proposition; for it would be wholly incompatible with the
equality and exclusiveness of the sovereignty of any nation that other
nations should be at liberty to regulate either persons or things within its
territories.
The instances of deference to foreign law are seen as an attempt

to promote international harmony by accommodating the views of a
foreign sovereign in the expectation of receiving reciprocal treatment.
This is a principle of enlightened self-interest.
Under the vested rights theory, there is no exception from the
territorial application of law, since foreign law is never applied as such.
Instead, local law simply recognize a right that had become vested in an
individual under the foreign law at the time when the individual was
subject to the foreign law. The theory emphasizes the individuals
entitlement to his or her vested right than the courts politeness or
concession to foreign sovereigns.
From these two maxims or propositions there flows a third, and

that is, that whatever force and obligation the laws of our country have in
another depends solely upon the laws and municipal regulations of the
latter; that is to say, upon its own proper jurisprudence and politely, and
upon its own express or tacit concern.
The true foundation on which the administration of international
law must rest is, that the rules which are to govern are those which arise
from mutual interest and utility, from a sense of the inconveniences
which would result from a contrary doctrine, and from a sort of moral
necessity to do justice in order that justice may be done to us in return.
Under the local law theory, conflict of laws is a branch of the

local municipal law, and that local law alone determined what, if any,
relevance and operation would attach to foreign law. Under this theory,
no right was vested in individuals by the operation of any foreign law
alone. Instead, the right became operational only after it was recognized
and given effect by the local law, and the local law alone determined
when that would happen.
The application of foreign law is not a matter of caprice or

option, it does not arise from the desire of the sovereign to show courtesy
to other states; It flows from the impossibility of otherwise determining
whole classes of cases without gross inconvenience and injustice to
litigants, whether natives or foreigners.
Every nation possesses an exclusive sovereignty and jurisdiction

within its own territory. The direct consequence of this rule is that the
laws of every State affect, and bind directly, all property whether real or
personal, within its territory; and all persons who are resident within it,
whether natural born subjects or aliens; and also all contracts made, and
The topic called conflict of laws deals with the recognition and
enforcement of foreign created rights.
1
A right having been created by the appropriate law, the

recognition of its existence should follow everywhere. Thus an act valid
where done cannot be called in question anywhere.
In certain circumstances, as well, our courts will enforce personal

judgments given in other states. Thus our courts will enforce an action
for breach of contract given by the courts of another country if the
defendant was present at the time of the action or has agreed to the
foreign courts exercise of jurisdiction. This is in conformity with the
requirements of comity, which has been stated to be the deference and
respect due by other states to the actions of a state legitimately taken
within its territory. Since the state where the judgment was given had
power over the litigants, the judgments of its courts should be respected.
If the court finds that one state has an interest in the application
of is policy in the circumstances of the case and the other has none, it
should apply the law of the only interested state.
If the court finds an apparent conflict between the interests of the
two states it should reconsider. A more moderate and restrained
interpretation of the policy or interest of one state or the other may avoid
conflict.
If, upon reconsideration, the court finds that a conflict between
the legitimate interests of the two states is unavoidable, it should apply
the law of the forum.
If the forum is disinterested, but an unavoidable conflict exists
between the laws of the two other states, and the court cannot with
justice decline to adjudicate the case, it should apply the law of the forum
until someone comes along with a better idea.
The conflict of interest between states will result in different
dispositions of the same problem, depending on where the action is
brought.
The common law regarding the recognition and enforcement of
foreign judgments is firmly anchored in the principle of territoriality.
This principle reflects the fact that sovereign states have exclusive
jurisdiction in their own territory. As a concomitant to this, states are
hesitant to exercise jurisdiction over matters that may take place in the
territory of other states. Jurisdiction being territorial, it follows that a
states law has no binding effect outside its jurisdiction. Modern states
however cannot live in splendid isolation and do give effect to judgments
given in other countries in certain circumstances. Thus, a judgment in
rem, such as a decree of divorce granted by the courts of one state to
persons domiciled there, will be recognized by the courts of other states.

PUBLIC POLICY, PUBLIC LAW CLAIMS:
proposition that, to justify a refusal to recognize a foreign law or

decision, the result must be offensive to fundamental forum public
policy].
Every legal system reserves an ultimate discretion to exclude the

application of the foreign lex causae normally applicable under its
choice-of-law principles if the result is offensive to forum public policy.
The operation of this exception is not restricted to the choice-of-law
level; public policy also provides a defence to the enforcement of foreign
decisions and judgments that would otherwise be entitled to recognition.
Conflict of laws jurisprudence is concerned essentially with the

just disposal of proceedings having a foreign element. The jurisprudence
is founded on the recognition that in proceedings having connections
with more than one country an issue brought before a court in one
country may be more appropriately decided by reference to the laws of
another country even though those laws are different from the law of the
forum court. The laws of the other country may have adopted solutions,
or even basic principles, rejected by the law of the forum country. These
differences do not in themselves furnish reason why the forum court
should decline to apply the foreign law. On the contrary, the existence of
differences is the very reason why it may be appropriate for the forum
court to have recourse to the foreign law. If the laws of all countries were
uniform there would be no conflict of laws.
Claims and judgments based on foreign sovereign or public

rights are also vulnerable to exclusion. This is well established in the
case of foreign tax and penal laws. Apart from these two classic
examples, the jurisprudential terrain is still largely unexplored.
English courts have no jurisdiction to entertain an action for the
enforcement, either directly or indirectly, of a penal, revenue or other
public law of a foreign state....
The class of laws which will be enforced are those laws which
are an exercise by the sovereign government of its sovereign authority
over property within its territory or over its subjects wherever they may
be. But other laws will not be enforced. By international law every
sovereign state has no sovereignty beyond its own frontiers. The courts
of other countries will not allow it to go beyond the bounds. They will
not enforce any of its laws which purport to exercise sovereignty beyond
the limits of its authority.
Where public policy is successfully invoked as a defence to the

recognition or enforcement of a foreign judgment, the result is plain the
judgment will not be enforced. Similarly, where the exception is invoked
to exclude a cause of action created by the impugned foreign law, the
action will simply be dismissed.
The exclusion of foreign penal law has deep roots: The
common law considers crimes as altogether local, and cognizable and
punishable exclusively in the country where they are committed. No
other nation, therefore, has any right to punish them; or is under any
obligation to take notice of, or enforce any judgment, rendered in such
cases by the tribunals having authority to hold jurisdiction within the
territory, where they are committed. The penal exception thus avoids the
necessity for courts to engage in difficult value judgments about the
fairness and wisdom of a foreign countrys criminal justice policies.
Viewed in this light, the principle is essentially an a priori application of
the general public policy exception.
The penal, revenue, public law, and public policy defences to the
recognition of a foreign judgment are distinct from the natural justice
defence. The natural justice defence is concerned with the fairness of the
procedure by which the foreign judgment was obtained whereas the other
defences rest on the substantive character of the foreign laws on which
the judgment was based.
The provisions of the law of a foreign country do not apply if
their application would be manifestly inconsistent with public order as
understood in international relations. [It is a generally accepted

The penal exception is limited to denying a foreign sovereign the

power to enforce its criminal laws outside the territory of their
enactment. It does not preclude forum recognition of the relevant laws in
other contexts.
The rule that the Courts of no country execute the penal laws of
another applies not only to prosecutions and sentence for crimes and
misdemeanours, but to all suits in favour of the state for the recovery of
pecuniary penalties for any violation of statutes for the protection of its
revenue or other municipal laws and to all judgments for such penalties.
The lex fori ultimately governs the characterization of a foreign
law as penal.
The revenue or tax exclusion has similarly deep roots to the
penal law exclusion. No country ever takes notice of the revenue laws
of another.
Enforcement of a claim for taxes is but an extension of the
sovereign power which imposed the taxes, and that an assertion of
sovereign authority by one State within the territory of another as distinct
from a patrimonial claim by a foreign sovereign, is (treaty or convention
apart) contrary to all concepts of independent sovereignties.
MAXIMS:
From the words of the law there should be no departure.

A simple proposition needs no expositor.
Abundant caution does no harm.
The plaintiff must follow the forum of the thing in dispute.
Equity assists ignorance, but not carelessness.
Things acquired in war go to the state.
When the reason of the law ceases, so does the law itself.
Where the evidence of a debt is not in existence it is presumed to
have been discharged.
To make laws agree with other laws is the best mode of
interpreting them.
Credence should be given to one skilled in his peculiar art.
Time runs against the slothful and those who neglect their rights.
Every one ought to be subject to the law of the place where he
offends.
An error not resisted is approved.
When the substance is gone, the adjuncts disappear.
Extremes being proved intermediate things are presumed.
The hurrying of justice is the stepmother of misfortune.
Fiction yields to truth; where the truth appears, there can be no
fiction of law.
When form is not observed, a nullity of the act is inferred.
It is vain to prove that which if proved would not aid the matter
in question.
It is unjust to give judgment or advice concerning any particular
clause of a law without having examined the whole law.
A judge should have two salts: the salt of wisdom, lest he be
foolish; and the salt of conscience, lest he be devilish.
Ignorance of fact prejudices no one, ignorance of law does.
Where the law gives a right, it gives a remedy to recover.
Conscience is the most changeable of rules.
The laws of nature are most perfect and immutable; but the
condition of human law is an unending succession, and there is
nothing in it which can continue perpetually; human laws are

born, live, and die.
Money is judt medium and measure of all exhangeable things,
for by the medium of money a convenient and just estimation of
all things is made.
It is much more useful to pout forth a few useful things than to
oppress men with many useless things.
Necessity defends what it compels.
Negligence always has misfortune for a companion.
Presumptions are conjectures from probable proof, assumed for
purposes of evidence.
Things which are tolerated on account of necessity ought not to
be drawn into precedent.
When anything is commanded, everything by which it can be
accomplished is also commanded.
When anything is prohibited, everything by which it is reached is
prohibited.
When the law gives anything, it gives the means of obtaining it.
When the law grants a thing to any one, it grants that also
without which the thing itself cannot exist.
Presumptions are conjectures from probable proof, assumed for
purposes of evidence.
Things which are tolerated on account of necessity ought not to
be drawn into precedent.
When anything is commanded, everything by which it can be
accomplished is also commanded.
When anything is prohibited, everything by which it is reached it
prohibited.
When the law gives anything, it gives the means of obtaining it.
When the law grants a thing to any one, it grants that also
without which the thing itself cannot exist.
When the law gives anything, it gives tacitly what is incident to
it.
He who destroys the means destroys the end.
He who is prior in time is stronger in right.
He who does anything through another is considered as doing it

himself.
He who offends drunk must be punished when sober.
He who spares the guilty punishes the innocent.
He who does not repel a wrong when he can, occasions it.
He who does not forbid what he can forbid, seems to assent.
He who does not prevent what he can, seems to commit the
thing.
He who does not forbid when he can forbid, commands.
He who does not disapprove, approves.
He who is silent does not indeed confess, but yet it is true that he
does not deny.
He who pays tardily pays less than he ought.
That which is paid by the order of another is, so far as such
person is concerned, as if it had been paid to himself.
That which natural reason has established among all men, is
called the law of nations.
What is not good as to things principal, will not be good as to
accessories or consequences; and what is not of force as regards
things near will not be of force as to things remote.
What is first is truest; anf what comes first in time is best in law.
Whenever the same words express two meanings, that is to be
taken which is the better fitted for carrying out the proposed end.
When the principal clause does not hold its ground, neither do
the accessories find place.
The custom of the place where the action is brought is to be
observed.
We call him a vagabond who has acquired nowhere a domicil of
residence.
Scarely any law can be made which is beneficial to all; but if it
benefit the majority it is useful.
Every principle is its own evidence, and plain truths are not to be
proved.
When a common remedy ceases to be of service, recourse must
be had to an extraordinary one.
Statutes are confined to their own territory, and have no extraterritorial effect.
Simplicity is favorable to the law, and too much subtlety is
blameworthy in law.
The multitude of those who err is no protection for error.
LEX FORI:
Questions of the admissibility and effect of evidence are to be

determined by the lex fori.
The local or territorial law of the country to which a court,

wherein an action is brought, or other legal proceeding is taken, belongs.
The administration of a deceased persons movables is governed

wholly by the law of the country where the administrator acts and from
which he derives his authority to collect them (lex fori); and without
regard to the domicil of the deceased; but the distribution of the
distributable residue is governed by the lex domicilii. Usually the
distributable residue is remitted to the administration of the domicil for
distribution, but it is in the discretion of the court of the ancillary
administration to distribute such residue.
The forms of remedies, modes of procedures, and execution of

judgments are regulated solely and exclusively by the laws of the place
where the action is instituted.
The lex fori is to decide who are proper parties to a suit.
The lex fori governs as to the nature, extent, and character of the
remedy.
An action is tort for an act done in a foreign country will not lie
in England unless the act was a tort both in such foreign country and in
England.
The lex fori decides as to deprivation of remedy in that

jurisdiction.
The law of the forum as to the validity of a bequest will be

applied to a gift by will, especially when this carries out and does not
frustrate the testators intention, although the law of the state (of the
recipient) may be different.
The insolvent laws of the various states which purport to

discharge the debt are, at most, allowed that effect only as against their
own citizens; as between their own citizens and strangers, where the
claims of the latter have not been proved, they only work a destruction of
the remedy in the state of the insolvency jurisdiction.
The statutes of one state giving an action for wrongful death may
be enforced in the courts of another state, if not inconsistent with the
statutes and policy thereof.
Statutes of limitation affect the remedy only, and hence the lex
fori will be the governing law. [If a statute in force in the place where the
cause of action arose extinguishes the obligation and does not merely bar
the remedy, no action can be maintained in another jurisdiction after it
has taken effect.]
The right of set-off is to be determined by the lex fori. Liens,
implied hypothecations, and priorities of claims, generally are matters of
remedy, but only it would seem, where the property effected is within the
jurisdiction of the courts of the forum. A prescriptive title to personal
property, acquired in a former domicil, will be respected by the lex fori.
LEX LOCI:
interpretation of it, the legal duties and obligations imposed by it and the
legal rights and immunities acquired under it.
LEX LOCI CONTRACTUS law of the place of making a contract
The validity or invalidity of a contract as affected by the lex loci

may depend upon the capacity of the parties or the legality of the act to
be done.
LEX SITUS LAW OF THE PLACE WHERE A THING IS SITUATED

LEX LOCI ACTUS LAW OF THE PLACE WHERE A LEGAL TRANSACTION
The capacity of the parties as affected by the questions of

minority or majority, incapacities incident to coverture, guardianship,
emancipation and other personal qualities or disabilities, is, it has been
said, to be decided by the law of the place of making the contract.
TAKES PLACE
LEX LOCI CELEBRACIONIS LAW OF THE PLACE WHERE A CONTRACT IS

MADE
The question of disability to make a contract on account of

infancy is to be decided by the lex loci ; so, also, as to the contracts made
by married women.
LEX LOCI SOLUTIONIS LAW OF THE PLACE WHERE A CONTRACT IS TO

BE PERFORMED
LEX LOCI DELICTI COMMISSI LAW OF THE PLACE WHERE A TORT IS
Personal disqualifications not arising from the law of nature, but

from positive law , and especially such as are penal, are strictly
territorial, and are not to be enforced in any country other than that where
they originate.
COMMITTED
Lex loci contractus is used in a double sense in many of the

cases. It is used sometimes, to denote the law of the place where the
contract was made, and at other times t denote the law by which the
contract is to be governed, which may or may not be the same as that of
the place where it was made.
Natural disabilities, such as insanity, imbecilitiry, etc., are

everywhere recognized, as that the question whether they are controlled
by the lex loci or lex domicile seems to be theoretic rather than
practical.
It is a general principle applying to contracts made, rights

acquired, or acts done relative to personal property, that the law of the
place of making the contract, or doing the act, is to govern it and
determine its validity or invalidity, as well as the rights of parties under
it, in all matters touching the modes of execution and authentication of
the form or insturments of contract; and also in relation to the use and
meaning of the language in which it is expressed, the construction and
A contract leagal bu the lex loci will be so everywhere, unless

(i) it is injurious to the public rights or morals, (ii) or contravenes the
policy; (iii) or violates a positive law of the lex fori; (iv) or violates any
rule of procedure. The application of the lex loci is a matter of comity;
and that law must, in all cases, yield to the positive law of the place of
seeking the remedy.
It is held generally that the claimes of citizens are to be preferred

to those of foreigners. Assignments, under the insolvent laws of a foreign
state, are often held inoperative as against claims of a citizen of a state, in
regard to personal property in the jurisdiction of the lex fori.
between indorsee and drawer.] [ The place of acceptance of a draft is

regarded as the locus contractus.]
The validity of a contract cannot be secured by apparently
subjecting it to a law by which it is not properly governed.
The interpretation of contracts is to be governed by the law of

the country where the contract was made.
It is said that the failure to comply with local requirement as to

form, not affecting the obligation of the agreement, will not invalidate
the contract.
The lex loci governs as the formalities and authentication

requisite to the valid execution of contracts. But in proving the existence
of, and seeking remedies for, the breach, as well as in all questions
relating to the competency of witnesses, course of procedure, etc., the lex
fori must govern.
A contract valid by the laws of the lace where made, although

not in writing will not be enforced in the courts of a country where the
Statue of Frauds prevails. But where the law of the forum and that of the
place of the execution of the contract coincide, it will be enfored,
although required to be in writing by the law of the place of performance,
because the form of the contract is regulted by the law of the place of its
celebration, and the evidence of it by that of the forum.
The lex loci governs as to the obligation and construction of

contracts, unless, from their tenor, it must be presumed that they were
entered into with a view to the laws of some other state. This
presumption arises where the place of performance is different from the
place of making.
The general rule is that a defence or discharge, good by the law

of the place where the contract is same or is to be performed, is to be
held of equal validity in every place where the question may come to be
litigated.
It has been held that a lien or privilege affecting personal estate,

created by the lex loci, will generally be enforced wherever the property
may be found; but not necessarily in preference to claims arising under
the lex fori , when the property is within the jurisdicition of the court of
the forum.
Damages for the commission of a tortious act are to be measured

by the law of the placed where the act is done.
An action for a tort committed in a foreign country will lie only
when it is based upon an act which will be considered as tortious both in
the place where committed and in the locus fori; is such case the law of
the place where the tort was committed governs.
A discharge from the performance of a contract under the lex

loci Is a discharge everywhere. [A distinction is to be taken between
discharging a contract and taking away the remedy for a breach.]
In cases of indorsement of negotiable paper, every indorsement
is a new contract, and the place of each indorsement is its locus
contractus. [The place of payment is the locua contractus, however, as
In the English courts, it has been held that the proper law of the
contract is the law or laws by which the parties to a contract intended,
or may fairly be presued to have intended, the contract to be governed.
LEX REI SITAE
will, and the devolution of land, whether in case of intestacy or under a

will.
It is the universal rule of the common law that any title or

interest in land, or in other real estate, can only be acquired or lost
agreeably to the law of the place where the same is situated; and the law
is the same in this respect in regard to all methods whatever of transfer,
and every restraint upon alienation. The lex rei sitae governs as to the
capacity of the parties to any alienation, whether testamentary or inter
vivos, or to make a contract with regard to a movable, or to acquire or
succeed to a movable as affected by questions of minority or majority; of
rights arising from relation of husband and wife; parent and child, or
gaurdian and ward; and of the rights and powers of executors and
administrators, whether the property be real or personal; and of devisee
or devisor.
The acquisition of title to land by lapse of time (prescription)

must be determined by the lex rei sitae, except so far as the limitation to
an action to recover land depends on the lex fori.
An executor foreign contract for the conveyance of lands not
repugnant to the lex rei sitae will be enforced in the courts of the latter
country by personal process.
So as to the forms and solemnities of alienation, and the

restrictions, if any, imposed upon such alienation, the lex rei sitae must
be complied with, whether it be a transfer by devise, or by a conveyance
inter vivos. So as to the amount of property or extent of interest which
can be acquired, held or transferred; and of the question of what is real
property. The law of a country where a thing is situated determines
whether the thing itself, or any right, obligation or document connected
with the thing is to be considered an immovable or movable. And,
generally, the lex rei sitae governs as to the validity of any such transfer.
The validity, construction, and effect of wills of movables
depend upon the lex rei sitae; but the law of the state where the will was
made may be considered by the court of the situs in determining the
meaning of certain words in it.
The validity of a charitable devise depends upon the lex rei sitae,
and so does the execution of a power of appointment of lands under a
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LAW MERCHANT:
The general body of commercial usages in matters relative to
commerce [CUSTOM OF MERCHANTS].
Since, however, its character is not local, nor its obligations
confined to a particular district, it cannot with propriety be considered as
a custom in the technical sense. It is not a system of law which does not
rest exclusively on the positive institutions and local customs of any
particular country, but consists of certain principles of equity and usages
of trade which general convenience and a commen sense of justice have
established, to regulate the dealings of merchants and mariners in all the
commercial countries of the civilized world.
These usages, being general and extensive, partake of the
character of rules and principle of law, not matters of fact, as do usages
which are local or special. They constittute a part of the general law of
the land, and, being a part of that law, their existence cannot be proved
by witnesses, but the judges are bound to take notice of them ex officio;
and this application is not confined to merchants, but extends to all
persons in any mercantile transaction.
The development of the law merchant as part of the common law
has continued without ceasing. Evidence of living general usage is still
admissible to add new incidents to its contents, provided they do not
contradict any rule already received.
11
DOMICILE AND RESIDENCE:
It is well-established that a court must determine a persons

domicile according to the rules for ascertaining domicile accepted by the
lex fori.
In private international law, it is traditionally thought necessary to

identify an individuals personal law the law of the community to
which he/she has the most significant continuing connection. In common
law systems, domicile has traditionally been regarded as the most
appropriate connecting factor to establish personal law. This is in
contrast to the position in most legal systems in continental Europe and
South America where nationality began to be adopted as the dominant
connection from the early 19th century forward.
The conventional common law view is that residence, as an

element of domicile, means very little more than physical presence. But
it does mean something more. The court will ask whether the person is
an inhabitant, in contrast to merely a tourist or casual visitor. The
important issue, in other words, is what intention underlies the physical
presence.
Nationality has several advantages. Whereas domicile incorporated

an element of subjective intention, nationality is usually acquired by a
formal objective governmental act and is thus much easier to ascertain.
For the same reason, nationality is more likely to ensure international
harmony in the choice of law applicable to personal law questions.
Domicile connotes an exclusive connection no person can have

more than one domicile at one and the same time. However, in countries
organized on a federal model, it is possible for a person simultaneously
to have two domiciles a federal domicile for the purposes of federal
law and a domicile in one of the provinces or state for the purposes of
provincial or state law.
On the other hand, the element of intention in domicile allows

some room for choice whereas nationality may remain with a person
long after he/she has sought to terminate all real ties with the relevant
country.
Alien status does not ipso facto preclude a finding of domicile and
there is even authority that a person who is illegaly in the country can
still have the intention necessary to establish a domicile of choice there.
Today, some variation of residence or simply real and substantial

connection is more often the relevant concept.
Legal residence, inhabitancy, and domicil are generally used as

synonymous.
Domicile is a persons permanent home which requires the act of

residence and the intention to remain there permanently. While a person
may have more than one home, he can only have one domicile. An
existing domicile is presumed to continue until it is proved that a new
one has been acquired and the burden of proving a change in domicile
lies on those who assert it.
Two things must concur to establish domicil the fact of residence

and the intention of remaining. These two must exist or must have
existed in combination.
Domicile involves two elements the fact of residence and the

intention to stay there permanently.
The domicil of origin always remains in abeyance, as it were, to be

resorted to the moment the domicil of choice is given up.
Domicil is said to be of three kinds domicil of origin, or by birth,

domicil by choice, and domicil by operation of law.
Domicil by choice is that domicil which a person of capacity of his

free will selects to be such.
12
Domicil is conferred in many cases by operation of law, either

expressly or consequentially.
The local law is to determine the character of property. And it is

held that a state may regulate the succession to personal as well as real
property within its limits, without regard to the lex domicilii.
There may be a commercial domicil acquired by maintenance of a

commercial establishment in a contry, in relation to transactions
connected with such establishments.
The interpretation of a will of movables is to be according to the

law of the place of the last domicil of the testator. But so far as its
validity is concerned, it does not matter that after the will was made in
one domicil the testator obtained a new domicil, where he died. But it
must be valid under the law of the new domicil.
Any person, sui juris, amy make any bona fide change of domicil
at any time. To constitute a change of domicil three things are essential :
(1) residence in another place; (2) an intention to abandon the old
domicil; and (3) an intention of acquiring a new one.
Distribution of the personal property of an intestate is governed

exclusively by the law of his actual residence at the time of his death.
This includes the ascertainment of the person who is to take. The descent
of real estate depends upon the law of the place of the real estate. Thes
question whether debts are to be paid by the administrator from the
personalty or realty is to be decided by the law of his domicil.
The law of the place of domicil governs as to all acts of the parties,
when not controlled by the lex loci contractus or lex rei sitae.
The state and condition of the person according to the law of his
domicil will generally, though not universally, be regarded in other
countries as to acts done, rights acquired, or contracts made in the place
of his native domicil; but as to acts, rights, and contracts done, acquired,
or made out of his domicil, the lex loci will generally govern in respect
to his capacity and condition.
An assignment of property for the benefit of creditors valid by the

law of the domicil is generally recognized as valid everywhere, in the
absence of positive statute to the contrary; but not to the injury of
citizens of the foreign states in which property is situated.
The disposition of, succession to, or distribution of the personal

property of a decedent, wherever situated, is to be made in accordance
with the law of his actual domicil at the time of his death.
The principle applies equally to cases of voluntary transfer, of
intestacy, and of testaments.
Wills are to be governed by the law of the domicil as to the
capacity of parties, and as to their validity and effect in relation to
personal property; but by the lex rei sitae as to the transfer of real
property.
The forms and solemnities of the place of domicil must be
observed.
13
JURISDITION IN PERSONAM:
any judgment it may render. Jurisdiction, therefore, normally depends

upon the presence of the defendant within the territorial limits of the
court or upon the voluntary submission of the defendant to the authority
of the court.
The status of an individual is ocassionally relevant to questions

of jurisdiction. There are some persons whose status prohibits them frm
bringing an action and there are some whose statuts confers immunity
from action.
-
There are three ways in which jurisdiction may be asserted against

an out-of-state defendant: 1) presence-based jurisdtion; 2) consent-based
jurisdiction; and 3) assumed jurisdiction. Presence-based jurisdiction
permits jurisdiction over an extra-state defendant who is physically
present within the territory of the court. Consent-based jurisdiction
permits jurisdiction permits jurisdiction over an extra-state defendant
who consents, whether by voluntary submission attornment
by
appearance and defense, or prior agreement to submit disputes to the
jurisdiction of the domestic court. [Both bases of jurisdiction also
provide bases for the recognition and enforcement of extra-state
judgments.] Assumed jurisdiction is initiated by service of the courts
process out of the jurisdiction. [This jurisdiction does not provide a basis
for recognition and enforcement.]
Doing business doctrine

Isolated transaction doctrine
estoppel
The question whether a foreigner can be a party to proceedings in

the English courts is one to be determined by English law (as the lex
fori). In the case of an individual, no difficulty usually arises. And the
same be said of foreign legal persons which would be recognized as such
by our own law.
The novel question which arises is whether a foreign legal person
which would not be recognized as a legal person by our own law can sue
in the English courts.
Where more than one forum is capable of assuming jurisdiction,

the most appropriate forum is determined through the forum non
conveniens doctrine, which allows a court to decline the jurisdiction on
the ground that there is another forum more appropriate to entertain the
action
Theories of territorial sovereignty give to the sovereign the right to

control any person physically present in the territory. The corollary is an
absence of power to regulate persons in other jurisdiction because that
would constitute an interference with the sovereignty of that jurisdiction.
So at common law, English courts were entitled to assume jurisdiction
over any person present in England on when a writ could be served.
Service of a writ on a defendant in England gave the English court
jurisdiction as a right of subject only to discretionary principles of selfrestraint.
A corporation has no legal status beyond the bounds of the

sovereignty by which it is created. It exists only in contemplation of law
and by force of the law, and where that law ceases to operate, the
corporation can have no existence. It must dwell in the place of its
creation, and cannot migrate to another sovereignty. This principle does
not prevent a corporation from acting in another state or country with the
latters express or implied consent. But every power which a corporation
exercises as such in another state depends for its validity upon the laws
of the sovereignty in which it is exercised. A corporation can exercise
none of the functions and privileges conferred by its charter in any other
state or country except by the comity and consent of such state or
country.
Traditionally, the presence of the defendant within the territorial

limits of the court or his voluntary submission to the authority of the
court has founded jurisdiction in a personal action in that court.
Traditionally, the view has been held that jurisdiction in a personal
action rests upon physical power and the ability of the court to enforce

14
A corporation has the capacity to act and contract, by its agents, in

a state or country other than that by which it was created, with the
express or implied consent of that country or state, under the rules of
comity. And by rules of comity bidning upon the courts of a state, a
foreign corporation has a right to do business therein, the consent of the
state being presumed, except 1) where it is prohibited by express
statutory or constitutional enactment, 2) where it is seeking to perform
acts which are contrary to the public policy of the state, 3) where it is
seeking to exercise extraordinary and special franchises, and 4) where it
is seeking to perform acts which are unauthorized by its corporate
charter.
foreign corporation actually doing business here has not applied for
license to do so ad has not designated an agent to receive summons, then
service of summons will be made pursuant to the provisions of the Rules
of Court (lex fori).
As a general rule, the court of one state will not exercse the power
of deciding controversies relating merely to the internal management of
the affairs of a corporation organized under the laws of another state or
of determining rights dependant upon such management. Questions
relating to the management of the internal affairs of a foreign corporation
are to be settled by the tribunals of the state which created the
corporation.
A state, if it sees fit, may by legislation exclude a foreign

corporation altogether or it may, subject to constitutional limitations,
prescribe any conditions it may deem fit as a prerequisite to its right to
do business within its limits. So a state may restrict the right of a foreign
corporation to engage in business within its limits, and to sue in its
courts.
A court, in deciding the question of whether it or a court outside is

the more appropriate forum in which to hear a proceeding, must consider
the circumstances relevant to the proceeding, including:
a) the comparative convenience and expense for the parties to the
proceeding and for their witnesses, in litigating in the court and in
any alternate forum,
b) the law to be applied to issues in the proceeding,
c) the desirability of avoiding multiplicity of legal proceedings,
d) the desirability of avoiding conflicting decisions in different
courts,
e) the enforcement of an eventual judgment, and
f) the fair and efficient working of the forum legal system as a whole.
The legal effects if a foreign corporation would transact in the

Philippines without a license are : 1) it cannot maintain by itself or
assignee any suit for the recovery of any debt, claim, or demand
whatever; 2) any officer, agent or person transacting business for the said
corporation shall be criminally liable; and 3) the contract entered into by
said foreign corporation is null and void, being prohibited by law and
contrary to public policy.
A foreign corporation doing business in the Philippines without
license cannot sue, but may be sued in our courts for a claim or demand.
A foreign corporation not doing business in the Philippines may sue, but
cannot be sued in our courts.
A foreign corporation doing business in the Philippines, with or
without license or authority to do so, is amenable to process and the
jurisdiction of local courts. If such foreign corporation has a license to do
business, then summons to it will be served on the agent designated by it
for the purpose, or otherwise in accordance with the law. Where such

15
DISCRETION TO DECLINE JURISDICTION AND RESTRAINT OF

FOREIGN PROCEEDINGS
In the U.S.A., the courts hesitate to disturb the plaintiffs choice of

forum and will not do so unless the balance of factors is strongly in
favour of the defendant. In Canada, the doctrine is that unless the balance
is strongly in favour of the defendant, the plaintiffs choice of forum
should rarely be disturbed.
The basic principle is that each jurisdiction is independent. There

is therefore, no embargo on concurrent proceedings in the same matter in
more than one jurisdiction. There are simply these two weapons, a stay
(or dismissal) of proceedings and an anti-suit injunction. Each of these
has its limitations. The former depends on its voluntary adoption by the
state in question, and the latter is inhibited by respect for comity. It
follows that, although the availability of these two weapons should
ensure that practical justice is achieved in most cases, this may not
always be possible.
If the court concludes that there is no other available forum which

is clearly more appropriate for the trial of the action, it will ordinarily
refuse a stay. If, however, the court concludes that there is some other
available forum which prima facie is clearly more appropriate for the
trial of the action, it will ordinarily grant a stay unless there are
circumstances by reason of which justice requires that a stay should
nevertheless be granted.
In cases where justification has been founded as of right, i.e. where

defendant has been served with proceedings within the jurisdiction, the
defendant may apply to the court to exercise its discretion to stay the
proceedings on the ground which is usually called forum non
conveniens. [Such plea can never be sustained unless the court is
satisfied that there is some other tribunal, having competent jurisdiction,
in which the case may be tried more suitably for the interests of all
parties and for the ends of justice.]
The law relating to injunctions restraining a party from

commencing or pursuing legal proceedings in a foreign jurisdiction has a
long history, stretching back at least as far as the early 19th century. From
an early stage, certain basic principles emerged which are now beyond
dispute. First, the jurisdiction is to be exercised when the ends of
justice require it. Second, where the court decides to grant an injunction
restraining proceedings in a foreign court, its order is directed not against
the foreign court but agisnt the parties so proceeding or threatening to
proceed. Third, it follows that an injunction will only be issued retraining
a party who is amenable to the jurisdiction of the court against whom an
injunction will be an effective remedy; Fourth, since such an order
indirectly affects the foreign court, the jurisdiction is one which must be
exercised with caution.
The object of the words forum non conveniens is to find that

forum which is the more suitable for the ends of justice, and is
preferabke because pursuit of the litigation in that forum is more likely to
secure those ends.
In order to justify a stay two conditions must be satisfied, one
positive and the other negative: a) the defendant must satisfy the court
that there is another forum to whose jurisdiction he is amenable in which
justice can be done between the parties at substantially less
inconvenience or expense, and b) the stay must not deprive the plaintiff
of a legitimate personal or juridical advantage which would be available
to him if he invoked the jurisdiction of the courts.
As a general rule, before an anti-suit injunction can properly be

granted by an English court to restrain a person from pursuing
proceedings in a foreign jurisdiction, comity requires that the English
forum should have a sufficient interest in, or connection with, the matter
in question to justify the indirect interference with the foreign court
which an anti-suit injunction entails. In an alternative forum case, this
will involve consideration of the question whether the English court is
the natural forum of the resolution of the dispute.
16
Laker Airways v. Sabena, Belgian World Airways

731 F2d 909 (1984))
Comity in the legal sense, is neither a matter of absolute

obligation, on the one hand, nor of mere courtesy and good will, upon the
other. But it is the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of another nation,
having due regard both to international duty and convenience, and to the
rights of its own citizens or of other persons who are under the protection
of its laws.
Laker filed an antitrust action in the United States against

several defendants, including domestic, British, and other foreign
airlines. The defendants filed suit in the United Kingdom seeking an
anti-suit injunction barring Laker from proceeding with its action in
the United States. Meanwhile, the district court granted Laker an
injunction barring the defendants from proceeding in the United
Kingdom. The D.C. Circuit upheld the importance of comity, stating
that "comity serves our international system like the mortar which
cements together a brick house." Id. at 937. However, the D.C.
Circuit affirmed the district court:
The courts have developed two forms of remedy to control the

choice of forum of the parties. The first and more conventional device is
a stay of proceedings. This enables the court of the forum selected by
the plaintiff (the domestic forum) to stay the action at the request of the
defendant if persuaded that the case should be tried elsewhere. The
second is the anti-suit injunction, a more aggressive remedy, which may
be granted by the domestic court at the request of a defendant, actual or
potential, in a foreign suit. In the usual situation the plaintiff in the
domestic court moves to restrain the defendant from launching or
continuing a proceeding in the courts of another jurisdiction.
Occasionally, the defendant in a foreign jurisdiction who alleges that the
plaintiff in that jurisdiction has selected an inappropriate forum seeks an
injunction from the courts of the alleged appropriate forum, in which no
proceeding is pending, to restrain continuation of the foreign
proceedings. While the restraining order operated in personam on the
plaintiff in the foreign suit and not on the foreign court itself, it has the
latter effect and therefore raises the serious issues of comity.
Comity is the usual basis for staying the domestic action

due to a foreign antisuit injunction. However, comity does not apply
to the appeal of KLM and Sabena.
"Comity" summarizes in a brief word a complex and
elusive concept -- the degree of deference that a domestic forum must
pay to the act of a foreign government not otherwise binding on the
forum. . . . However, there are limitations to the application of
comity. When the foreign act is inherently inconsistent with the
policies underlying comity, domestic recognition could tend either to
legitimize the aberration or to encourage retaliation, undercutting
the realization of the goals served by comity. No nation is under an
unremitting obligation to enforce foreign interests which are
fundamentally prejudicial to those of the domestic forum. Thus, from
the earliest times, authorities have recognized that the obligation of
comity expires when the strong public policies of the forum are
vitiated by the foreign act. Id.
Although both the remedy of a stay and an injunction have as their

main objectives the selection of an appropriate forum for the trial of the
action, there is a fundamental difference between them which is crucial
to the development of principles which should govern each. In the case
of the stay the domestic court determines for itself whether in the
circumstances it should take jurisdiction whereas, in the case of the
injunction, it in effect determines the matter for the foreign court.
There may be different views among circuits as to the

relative importance to be given to comity in deciding whether to file
an anti-suit injunction. Compare Quaak, 361 F.3d at 17 ("We deem
international comity an important integer in the decisional
calculus"), and Laker Airways, 731 F.2d at 927 (anti-suit injunctions
should be granted "only in the most compelling circumstances"), with
Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir. 1996) ("We
READ:
17
decline . . . to require a district court to genuflect before a vague and

omnipotent notion of comity every time that it must decide whether to
enjoin a foreign action").
Laker Airways, 731 F.2d at 927 also states that courts
"have a duty to protect their legitimately conferred jurisdiction to the
extent necessary to provide full justice to litigants. Thus, when the
action of a litigant in another forum threatens to paralyze the
jurisdiction of the court, the court may consider the effectiveness and
propriety of issuing an [anti-suit] injunction".
Parties to a contract often agree at the time of contracting on the

applicable law and on the forum for resolution of dispute between them.
There may be an agreement to use arbitration and not litifation to resolve
dispute.
In the not too distant past, the common law held such agreements
void. It was contrary to public policy to oust the jurisdiction of the
courts. Public policy now favors such clauses and the law defers to such
agreements, although not absolutely. There are still issues concerning
validity and interpretation of jurisdictionselecting and arbitration
clauses but they are not now void per se on grounds of public policy.
Even where parties have agreed to submit their disputes to
arbitration, they still may resort to the courts for other assistance.
18
JURISDICTION:
wholly out of the transaction sued upon by plaintiff, and in the nature of
recoupment rather than set-ff.
Jurisdiction is given by the law, and cannot be conferred by

consent of the parties;
READ:
Jurisdiction given by the law of the sovereignty of the tribunal is

held sufficient everywhere, at least as to all property within the
sovereignty, and as to persons on whon process is actually and personally
served within the territorial limits of jurisdiction, or who appear and by
their pleadings admit jurisdiction. But the appearance of a person on
whom no personal service of process has been made, merely to object to
the jurisdiction is not such an admission.
Merchants Heat & Light Co. v. Clow & Sons, 204 O.S. 286;
51 L. Ed. 488
Contract executed in Chicago Illinois, between Schott, General
Manager of Merchants Heat & Light Co (Indiana Company), and
J.B. Clow & Sons (Illinois corporation), for the latter to supply
materials to be used in constructing and equiping a heating plant.
Service made on Schott and Merchants filed MTQ, and later pleaded
on merits and asked for recoupment or set-off on damages.
Jurisdiction must either be of the subject-matter, which is acquired

by exercising powers conferred by law over property within the
territorial limits of the sovereignty, or of the person, which is acquired by
actual service of process or personal appearance of the defendant. The
question as to the possesion of the former is to be determined according
to the law of the sovereignty; of the latter, as a simple question of fact.
Court did not discuss other issues, held that by setting up a

counterclaim, Merchants had become a plaintiff in turn and had
submitted to the jurisdiction of the court. Court said a demand in
recoupment is recognized as a cross demand as distinguished from a
defense.
The courts of one state have no jurisdiction over persons of other

states unless found within their territorial limits.
The lack of any valid service of process upon a foreign corporation

does not defeat the jurisdiction of a Federal circuit court of an action
in which such corporation pleaded in its answer a demand in
recoupment, especially since, under the local practice, as defined
in 111. Rev. Stat. chap. 110, SS 30, 31, the defendant may have a
verdict and judgment in his favor if it appears that the plaintiff is
indebted to him for a balance when the two claims are set against
each other, and, after the cross claim is set up, the plaintiff is not
permitted to dismiss his suit without the contact of the defendant or
leave of court granted for cause shown.
Jurisdiction in rem over a non-residents property can be obtained

by proceedings against it, of which notice should be given in order to
give a binding effect to the proceedings; such notice may be actual or
constructive. Any judgment obtained in such proceedings has no effect
beyond the property in question; no other property can be reached under
it; nor can any suit be maintained on it, either in the same court [or some
other court].
While a non-resident defendant corporation may not lose its right
of objecting to the jurisdiction of the court on the ground of insufficient
service of process by pleading to the merits pursuant to order of the court
after objections overruled, it does waive its objection and submits to the
jurisdiction of it also sets up a counterclaim even though it be one arisinf
19
Exemplified or sworn copies of written laws and other public

documents must, as a general thing, be produced when they can be
procured; but should they be refund by the competent authorities, then
inferior proof may be admitted.
FOREIGN LAW:
The courts do not take judicial notice of foreign laws; and they
must, therefore, be proved as matters of fact, and pleaded. Written laws,
by the text, or a collection printed by authority, or a copy certified by a
proper officer, or , in their absence, perhaps, by the opinion of experts as
secondary evidence; they may be construed with the aid of text-book as
well as of experts. Where experts are called, the sanction of an oath is
required.
When our own government has promulgated a foreign law or

ordinance of a public nature as authentic, that is held sufficient evidence
of its existence. The usual modes of authenticating them are by an
exemplification under the great seal of a state, or by a copy proved by
oath to be a true copy, or by a certificate of an officer authorized by law,
which must itself be duly authenticated.
Where a statute of another state has been properly brought to the

notice of the court, it will in all future cases take notice of that statute and
presume the law of the foreign state to be the same until some change is
shown.
Proof of unwritten law is usually made by the testimony of

witnesses learned in the law and competent to state it correctly under
oath.
A copy of the authorized statute - book is recognized as proof of

foreign law; and the construction of those statutes may be proved either
by the reports of cases, or by one familiar therewith.
Foreign laws have, as such, no extra-territorial force, but have an

effect by comity. In the absence of pleading and proof to the contrary,
the laws of another state are presumed to be like those of the state in
which the action is brought.
In the absence of proof as to what the law of a foreign state or

country is, the court, when it takes judicial notice that the foreign state
has fundamentally the same system of law as that of the forum, will
presume that the law of the foreign state is the same (exclusive of
statutory changes) as that of the law of the forum.
The effect of foreign laws when proved is properly referable to the

court; the object of the proof of foreign laws is to enable the court to
instruct the jury what is, in point of law, the result from foreign laws to
be applied to the matters in controversy before them. The courts are,
therefore, to decide what is the proper evidence of the laws of a foreign
country; and when evidence is given of those laws, the courts are to
judge of their applicability to the matter in issue.
Foreign unwritten laws, customs, and usages may be proved, and

are ordinarily proved, by parol evidence; and when such evidence is
objected to as the ground that the law in question is a written law, the
party objecting must show that fact.
The manner of proof varies according to circumstances. As a
general rule, the best testimony or proof is require; for no proof will be
received which presupposes better testimony available by the party who
offers it. When the best testimony cannot be obtained, secondary
evidence will be received.
20
FOREIGN JUDGEMENT:
entitled to no credit in another state [but facts establishing the want of

jurisdiction must be shown]
It is a general rule that foreign judgments are admitted as

conclusive evidence of all matters directed involved in the case decided,
where the same question is brought up accidentally. Such judgments and
decrees in rem, whether relating to immovable property or movables
within the jurisdiction of the foreign court are binding everywhere.
It is the better opinion that judgments in personam regular on their
face, which are sought to be enforced in another country, are conclusive
evidence, subject to a re-examination, in the courts where the new action
is brought, only for irregularity, fraud, or lack of jurisdiction as to the
cause or parties. [Note: it was formerly held that they were prima facie
evidence merely]
Foreign judgments may be evidenced by exemplifications certified
under the great seal of the state or country where the judgement where
the judgment is recorded, or under the seal of the court where the
judgment remains; by a copy proved to be true copy, or by the certificate
of an officer authorized by law, which certificate must itself be properly
authenticated.
Proceedings will lie in equity to enjoin the enforcement of
judgment obtained by fraud in a foreign state.
If the court of the foreign state had jurisdiction over the parties its
judgment cannot be impeached, even if it went upon a misapprehension
of its own law.
The foreign judgment must be given the same faith and credit as is
given to domestic judgments. If a judgment or decree is enforcable in the
state where it is rendered, it is enforcible in any other state.
Credit is not to be given to judgments of another state if they were
wanting in due process of law. Thus a judgment against defendant who
was not served with proper process, and who did not appear, would be
21
NOTES:
On a bill of exchange drawn in one state and payable in another,

the time within which notice of protest must be mailed is determined by
the law of the latter state.
The power of determining whether, or how for, or with what

modification, or upon what conditions, the laws of one state or any rights
dependent upon them shall be recognized in another, is a legislative one.
The comity involved is a comity of the states, and not of the courts, and
the judiciary must be guided in deciding the question by the principle and
policy adopted by the legislative.
A statute of limitations of a foreign state providing that an action

on a note shall be brought withing a certain time after the cause of action
accrues bars the debt itself if not brought within the time limited, and
may be pleaded in bar of an action brought on the note in another state.
When a state or the unwritten or common law of the country forbid

the recognition of the foreign law, the latter is of no force whatsoever.
When both are silent, then the question arises, which of the conflicting
laws is to have effect. Every sovereignty must determine for itself
whether it will enforce a foreign law.
The damages recoverable on a bill of exchange not paid are those

of the place where the plaintiff is entitled to reimbursement.
A note made in one state and payable in another, is not subject to
the usury laws of the latter state, if it is valid in that respect in the state
where it was made.
Generally, force and effect will be given by any state to foreign

laws in cases where from the transactions of the parties they are
applicable, unless they affect injuriously her own citizens, violate her
express enactments, or are contra bonus mores.
Chattel mortgages valid and duly registers under the laws of the
state which the property is situated at the time of the mortgage, will be
held valid in another state to which the property is removed, although the
regulations are different; and it will be enforced in the state to which the
property has been removed, although it would have been invalid if made
in that state. (But Wharton believes that the law in regard to chattel
mortgage is governed by the lex rei sitae, etc.)
In general, the mode of conveying, encumbering, transmitting,

devising, and controlling real estate is governed by the law of the place
of situation of the property.
The law governing the mortgage, as such, is the law of the situs of
the land which the mortgage covers, but the debt is governed by the law
of the domicil of the party to whom it is due, is no matter where the
property be situated; and that when the money is invested on the and for
which the mortgage is given, the lex sitae prevails. For the purposes of
taxation, a debt has its situs at the domicil of the creditor.
Questions of priority liens and other claims are, in general, to be

determined by the lex rei sitae even in regard to personal property.
The existence of this lien will generally depend on the lex loci.
In an action brought in one state for injuries done in another, the
statues and decisions of the courts of the latter state must fix the liability.
Bills of exchange and promissory notes are to be governed as to

the validity and interpretation, by the law of the place of the making, as
are either contracts. The residence of the drawee of a bill of exchange,
and the place of making a promissory note where no other place of
payment is specified, is the locus contractus.
The validity of an assignment of documents, such as policies of

insurance, or negotiable instruments, is determined by the law of the
place where the assignment is made.;
Executors and administrators, in the absence of a specific statute
authorizing it, have no power to sue or be sued by virtue of a foreign
22
appointment as such. Guardians have no power over the property,

whether real or personal, of their wards, by virtue of a foreign
appointment; they must have the sanction of the appropriate local
tribunal.
Judgments and decrees of foreign courts relating to immovable
property within their jurisdiction are held binding everywhere. And the
rule is the same with regard to movables actually within their
jurisdiction. Heir admiralty proceedings in rem are held conclusive
everywhere if the court had a rightful jurisdiction founded on actual
possession of the subject matter.
Voluntary assignments of personal property, valid where made,
will transfer property everywhere, but not as against citizens of the state
of the situs attaching prior to the assignees obtaining possession.
An involuntary assignment by operation of law as under bankrupt
or insolvent laws will not avail as against attaching creditors in the place
of situation of the property.
Discharges by the lex loci contractus are valid everywhere (butit
is held that a state insolvent or bankrupt law may not have extraterritorial effect to discharge the debtor.)
23

RECOGNITION AND ENFORCEMENT
ARBITRAL AWARDS:
OF
FOREIGN JUDGMENTS
cause of action arose outside the jurisdiction and he was

only within it for a short period. The plaintiffs, a United
States company, obtained a judgment against the defendant
in New York. He was found to have no assets there. While
he was staying for a few days in an hotel in London, the
plaintiffs served a writ on him, relying on the New York
judgment. The defendant entered a conditional appearance
which the Master ordered should stand as unconditional.
Lyell, J., applying the decision in Watkins v North
American Land & Timber Co Ltd (1904) 20 T.L.R. 534
dismissed his appeal. (Colt In. v. Sarlie, No. 1)
AND
It is a fundamental tenet of territorial sovereignty that the laws and

orders of one sovereign cannot be directly enforced in the territory of
another. The corollary is that all jurisdictions have rules that provide for
conversion of foreign orders to local orders, enforceable by local
processes. Nothing prevents a sovereign from waiving the right to require
conversion. Similarly, nothing prevents one state from denying
recognition to judgments and orders of all other states but such a degree
of non-cooperation is not considered to be in the self-interest of the state.
In principle, the existence of a right of appeal will not

prevent a judgment being final and conclusive but, if an
appeal is in process, then the English court will normally
stay proceedings until a decision is known. (Colt In. v.
Sarlie, No. 2)
The traditional common law rules require the foreign judgment

creditor to persuade the forum that:
1. The foreign judgment is final and conclusive; and,
2. The foreign court had jurisdiction in the international sense.
When a judgment is final and conclusive in the territory in

which it was pronounced it will be treated as such for the
purpose of enforcing it in England; and the status of the
judgment vis-a-vis the sister states of the United States while
appeals are pending is irrelevant. The plaintiffs issued a
specially endorsed writ in England on a judgment obtained in
the New York Supreme Court. The defendants denied that the
judgment was final and conclusive pending the defendant's
proposed appeal in New York State, because it would be
unenforceable in the sister states of the United States during
the pendency of outstanding appellate rights. The master
granted leave to defend conditional on the defendant paying
the amount claimed into court. On appeal, Lyell, J. held no
arguable defence was disclosed and that the plaintiffs were
entitled to judgment for the whole sum. On further appeal by
the defendants, held, that the appeal be dismissed.
SEE:
Girsberger v. Kress, 2000, 47OR(3d) 145 (SCJ)
The Superior Court declined to follow the well-established
precedent that a foreign judgment is to be treated as a
contract debt and not a judgment for the purposes of the
Limitations Act. The court accepted the argument that this
rule was inconsistent with the modern conflict of laws
principles, holding that, for the purposes of enforcement,
foreign judgments are to be treated as judgments and are
subject to a 20-year limitation period not a six-year
limitation period.
Colt Industries v. Sarlie (No. 2), 1966 1 WLR 1287 (CA)
A defendant in an action on a foreign judgment, whether or not it is

a reciprocally enforceable judgment, on proof that an appeal or other
proceeding in the nature of an appeal is pending, or the time for an
appeal has not expired, may apply for an order staying the proceeding
In the absence of fraud inducing the defendant to enter

within the jurisdiction, a writ may be served upon him if he
enters within the jurisdiction and it is immaterial that the
24
until the determination of the appeal or other proceeding on terms that

the court may impose.
his wife who was ill in Vancouver. The court found this was
sufficient for residency in the jurisdiction even though it was a
casual visit.
A foreign court will be held to have had jurisdiction in the

international sense for purposes of recognition and enforcement of a
particular judgment if:
Re: Carrick Estates Ltd. and Young, 1987, 43 DLR (4th) 161
Mere presence in the jurisdiction was enough under common
law, but not under the statute.
1. The defendant was present in the jurisdiction at the time the

action was commenced;
2. The defendant voluntarily submitted to the jurisdiction of the
foreign court; or
3. There was a real and substantial connection between the action
and the jurisdiction.
Moore v. Mercator Enterprises Ltd., 1978 90 DLR(3d) 590

Application to enforce Ontario judgment in Nova Scotia, where
defendant argued that they were not carrying out a business in
Ontario.
SEE:
This is question of fact, an agent is not enough, but an agent to

conclude contracts is sufficient for presence requirements. The
English rule also prevails in Canada, at common law: a final
judgment, if rendered by a court of competent jurisdiction and
if free from fraud, is conclusive on the merits and not open to
re-examination. This rule applies to foreign judgments in rem
and in personam.
Schibsby vs. Westerholz, 1870, L.R. 6 QB 154

Where the defendant in a foreign action is actually present in
that country and resident there, unless the cause of action
relate[s] to land outside that country, the foreign judgment is
conclusive of jurisdiction, and no defence can be founded upon
that ground, or the doctrine of appeal would be broken. But
where the defendant is not resident in the jurisdiction of the
foreign court at the beginning of the suit, and judgment is given
against him, an English court will examine the competency of
the foreign court; and it will, it seems, consider it competent,
and will therefore enforce its decrees in the following cases :
First National Bank of Houston v. Houston E & C Inc., 1990,

5 WWR 719 (BCCA)
This is a question as to whether defendant submitted to Texas.
Defendant filed an answer to the claim and the petitioner for a
review challenging the judgment, which was denied. The defendant
did not show up for trial however and a default judgment was
entered: court held that filing an answer, defending on the merits,
was attornment.1
(a) When the absent defendant is domiciled or usually

resident in the foreign country
Forbes v. Simmons, 1914, 20 DLR 100 (Alta SC)
The act of granting authority or jurisdiction to a party even though no legal rights exist.
Attornment most commonly relates to laws regulating real property and is designed to
acknowledge the relationship between the parties in a transaction.
For example, attornment may occur when a tenant leases an apartment only to have
the owner change during the course of the lease. The attornment agreement does not create a
The Alberta Supreme Court enforced a British Columbia

judgment given against the defendant. The British Columbian
court assumed jurisdiction while he was on a causal visit to
25
Clinton v. Ford, 1982, 137 DLR(3rd) 281 (Ont. CA)
The Court of Appeal of Ontario affirmed the order of the trial

judge applying the rate prevailing at the date of the statement
of claim on the view that in awarding judgment on a foreign
judgment the trial judge should be free to adopt a date for the
conversion of foreign currency into domestic currency which
avoids injustice and which is in step with commercial needs.
The correctness in fact or in law of a foreign judgment is irrelevant

in an action to enforce that judgment in Canada. This is so, regardless of
whether the foreign judgment followed a trial of the merits or a default.
As the correctness of the decision of the foreign court is irrelevant, it
follows that the merits of the claim or the merits of defenses to the claim
are equally irrelevant.
The merits of a foreign judgment in rem or in personam are not

examinable at all whether the judgment is relied upon by one plaintiff as
a cause of action or pleaded by the defendant as a bar to an action
instituted against him.
A foreign judgment which is otherwise enforceable will not be

enforced if it was obtained by fraud. [The fraud relied on must be
something collateral or extraneous, and not merely the fraud which is
imputed from alleged false documents made at the trial, which were met
by counter-statements by the other side, and (_______)
The English rule, also prevailing in Canada is: a final judgment if

rendered by a court of competent jurisdiction and if free from fraud, is
conclusive on the merits and not open to re-examination.
In principle, the courts of a common law territory will not enforce

a foreign penal law or judgment, whether directly or indirectly. A penal
law is one which imposes punishment for some breach of duty to the
state as opposed to a remedial law directed at securing compensation for
a private person who has suffered damage as a result of a breach of duty
owed to him or her.
A valid foreign judgment creates a new right in the judgment

plaintiff and imposes a new duty on the judgment defendant, these rights
being independent of and distinct from the cause of action alleged in the
suit wherein the judgment was rendered. A suit on this judgment being
one on a new right, it is immaterial whether or not a valid cause of action
existed prior to the judgment.
Enforcement of a foreign judgment will not be refused on the

ground that the foreign law on which the judgment is based is more harsh
than the law of the forum.
Castel: Provided that the foreign court had jurisdiction to

pronounce a judgment in personam, in principle, it is
immaterial to the recognition and enforcement of the foreign
judgment that the foreign court lacked authority by the law of
its own sovereign to adjudicate concerning the cause of action
or subject matter that resulted in the alleged judgment or
concerning the person of the alleged judgment debtor.
ARBITRAL AWARDS:
1958 NEW YORK CONVENTION ON THE RECOGNITION AND
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
1985 UNCITRAL MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION
Read:
new set of rights for the owner unless it is signed by the tenant. If the tenant refuses to sign, the
landlord may be able to use this as grounds for eviction.
Dicey: A foreign judgment cannot, in general, be impeached

on the ground that the court which gave it was not competent
to do so according to the law of the foreign country concerned.
26
Four Embarcadero Center Venture v. Kalen

(1988) 65 OR(2d)551
A foreign judgment is considered final and conclusive by Canadian
courts if it determines the rights and liabilities of the parties to it so
as to be res judicata in the place where it is pronounced, but not if
the foreign court can still vary or rescind it. The judgment sought to
be enforced must be both final and unimpeachable. Henry, J. set out
five grounds upon which a foreign judgment could be impeached:
(a)
(b)
(c)
(d)
(e)
The judgment is a nullity because the court did not have

jurisdiction over the subject matter and the parties;
The defendant was not a party to the foreign action;
The judgment was procured by fraud on the court;
There was a failure of procedural natural justice; and,
to enforce the judgment would be contrary to public policy
in Ontario.
** additional grounds2:
(f) The foreign judgment lacks finality
(g) The judgment is for foreign taxes or penalties.
Waterside Ocean Nav. Co., Inc. vs. International Nav. Ltd. 737
F2d 150 (1984)
Foreign Judgment Enforcement Ontario 13.02 [D], Judgment Enforcement

By James J. Brown
27
an issue falling under that category must be decided according to the law
of a country designated by means of a connecting factor place of
celebration of the marriage, domicile, place of commission of the tort or
place which the case is being heard. The designated legal system may be
that of another promise, a foreign nation, a state, or the forum itself.
CHOICE-OF-LAW METHODOLOGY:
Choice of law is an integral part of all legal systems, both in
practical terms and in terms of conceptual structure. To all intents and
purposes, it is a practical necessity because not reasonably developed
system of justice could function with a principle of strict territoriality.
As a practical matter, a choice-of-law rule only comes into play if

a party to the legal dispute 1) pleased that an issue should be decided by
a law other than that of the forum (a foreign law) and 2) proves, as a
fact, that the outcome of the issue is different under the foreign law than
it is under the law of the forum (the lex fori). If none of the parties to a
dispute raises the question of choice of law, the court must simply decide
the issue according to the rules of its own legal system. The same
applies, even if a party does rely on a foreign legal rule. If that party fails
to satisfy the court as to what the relevant foreign legal rule is or how it
applies to the facts. Again, the court must apply its own law. Without
doubt, most potential choice-of-law issues are never raised, either
because the foreign law would just lead to the same result as the lex fori,
or because it is not worth anybodys while to marshal the evidence to
prove the foreign legal rule.
Lawyers have developed legal rules of choice of law. These are

rules according to which, where it is felt to be more consonant with
justice, peoples rights and obligations can be determined by reference to
a law other than that if the forum (the country in which a court sits).
These rules allow people and prosperity to move from one country or
province to another, and to undertake transactions that straddle borders,
without having the disparities in local laws undermine their personal
status or the security of their rights, at least not without good reason. So a
marriage that is valid under the law of the country where it is celebrated
usually stays valid in the eyes of other countries to which the parties may
move. An interest in prosperity that is duly acquired under the law of one
country is usually not divested by the owner of the property moving to
another country. An act that is perfectly legal in the country where it is
done is usually not turned into a tort, just of another country, and so on.
Choice-of-law rules are sometimes described as multilateral, in

the sense that they determine the respective fields of application of the
lex fori and of foreign legal systems. They function as a kind of umpire,
giving the nod to a rule of the lex fori or a rule of foreign law based on
the legal systems to which the connecting factor in the rule points. This
distinguishes them from unilateral choice-of-law rules, which indicate
only when ne countrys (usually the forums) internal legal rule should
apply to a particular issue without saying anything about when any other
countrys internal legal rule should be applied.
Some arose of private law can do without choice-of-law makes.

One reason that in certain matters the courts jurisdiction may be such as
to exclude disputes that are closely linked to another countrys law.
Another reason why choice of law is virtually excluded in some areas is
that the law on these subjects is internationally uniform, or nearly so.
This uniformity can be established by a multilateral treaty.
Choice-of-law principles have traditionally been expressed in rules
that say that a particular type of legal issue is to be determined according
to the internal law of a country with which the case has a defined
connection. (By internal law is meant the law that supplies to a case
arising entirely within that country.)
Unilateral choice-of-law rules are inadequate to be the basis of a

complete choice-of-law system. If a case fals outside the scope of
application of the relevant countrys rule, as indicated by the unilateral
choice-of-law rule, there is nothing to tell you which other countrys rule
ought to apply.
Each choice-of-law rule identifies a category of legal issuefor

example, formal validity of a marriage or liability in tortand says that

28
The process of applying a choice-of-law rule is usually analysed in

a quasi-chronological fashion. First, you characterize the issue (is it
within the category of issues to which the rule applies?). Then you
follow the connecting factor to a particular legal system (what is the
country of the place of celebration, domicile, or other relevant factor?).
Finally, you apply the law that you fine in the country to which the
connecting factor has led you.
The major exceptions to a choice-of-law rule take two forms. One

is simply the existence of a more specific choice-of-law rule that
mandates a different result. Usually, the more specific choice-of-law rule
takes the form of a statutory directive of the lex fori. The other exception
is that the foreign rule of law may be barred from application by their
being a rule of penal law, a tax law, or against public policy of the
forum.
Any party who relies on a foreign legal rule must justify its
application by invoking a choice-of-law rule. Different legal systems use
different approaches to choice-of-law. For instance, common law
jurisdictions traditionally decide issues relating to personal status
(marriage, legitimacy, etc.) by applying the law of the persons
domicile. Civil law jurisdictions traditionally apply the law of the
country which the person is a citizen, which may be a completely
different country. So, it is quite possible for a choice-of-law question to
be decided according to one countrys law if the issue arises in the court
of a common law jurisdiction and by another countrys law if it arises in
the court of civil law jurisdiction. There is no such thing as an
internationally accepted system of choice of law. So the choice-of-law
rule invoked by a party must be dawn from a specified jurisdiction.
That jurisdiction is, and must be, the forum itself. Choice-of-law
rules, whether judge-made or statutory, are, in positivist terms,
commands to the court by the law making authorities of the courts own
country. The law says to the judge: Here is the basis on which you must
decide whether to apply a rule of our own internal law or a rule of
foreign law to decide on a particular persons legal rights. You are not
free to apply or not to apply rules of foreign law as the spirit moves you.
You can only apply rules of foreign law if the choice-of-law rule says
that you can.
Even if the relevant choice-of-law rule otherwise indicates that a
certain foreign internal legal rule is applicable to a case, there are still a
number of reasons why this may not happen. Some of these are
exceptions to the application of a choice-of-law rule and others are due to
ambiguities that are inherent in the choice-of-law system itself.

29
or defense on it. However, neither party is under an obligation to invoke

or prove foreign law. The law of the forum applies by default no matter
how patent the foreign elements in the case may be.
INVOKING AND DETERMINING FOREIGN LAW:

Under the long-established common law view, foreign law is not
engaged simply because the choice-of-law rules of lex fori support its
application. Instead, foreign law is conceived as a question of fact. As
such, its applicability must be pleases expressly and its content and effort
then proved according to the ordinary rules of evidence by expert
testimony.
Read:
Marceau J.A. held that the salient distinction is not whether the
law of the forum is statutory or common law:
What has appeared constant to me, however, in reading the cases,
is the reluctance of the judges to dispose of litigation involving
foreign people and foreign law on the basis of provisions of our
legislation peculiar to local situations or linked to local conditions
or establishing regulatory requirements. Such reluctance
recognizes a distinction between substantive provisions of a
general character and others of a localized or regulatory
character; this distinction, a distinction, formally endorsed I think
by Cartwright J. in the two passages I have just quoted, is wholly
rational which is more than can be said of a simple division
between common law and statute law.
The common law conception of foreign law as fact is by no means

universal. Most legal systems in continental Europe and Latin America
treat foreign law as law with the result that must (or at least may) be
applied ex officio by the court whether or not invoked by the parties.
Although the parties can be (and usually are) enjoined to assist in
ascertaining the foreign law, the court has the final word. Information
and opinions on the relevant foreign law are often obtained from
university-based comparative law institutes. In addition, the European
Convention of Foreign law (the London Convention) provides a
system to assist national courts in determining the application of a
foreign law in cases having a private international law component.
Morgardshammar AB vs. HR Radomski & Co., Ltd. 1983,

145 DLR(3d) III (Ont. HC)
English law treatment of foreign law is straightforward. As

traditionally conceived, its approach may be expressed in four principles.
The first, from which the other follow is that foreign laws are facts not
laws. As such, they are beyond the scope of judicial notice, being
unknown and unknowable to the judge. Secondly, being facts, foreign
laws must be formally proved, generally by expert evidence, for a judge
is unaware of their content. Thirdly, being such facts, foreign laws are
subject to such principles of pleading as govern(ing) other facts. This
means that one who relies upon foreign law must expressly plead it, but
equally, one who does not so rely need not do so. Fourthly, if foreign law
is not pleaded, or is pleaded but not adequately proved, a court will apply
English law instead, for knowing only English law it presumes foreign
law to be the same.
As with any other question of fact, the burden of pleading and of
proving foreign law lies on the party who wishes to base his or her claim
Fernandez vs. The Mercury Bill 1986, 3 FC 454 (CA)
When a foreign statue has been proved by admission, in the

absence of proof to the contrary, the court will assume that the rules of
construction in the foreign country are the same as those of the lex fori.
Two classes of expert witnessesfirst, those who have practised
or applied the relevant foreign law as lawyers or judges, and second, law
teachers and others whose office or position requires them to have a
working knowledge of the relevant foreign law.
In certain circumstances, the courts will not apply foreign law even
if they are applicable and properly proven. Such is the case when the
foreign law is penal in naturea determination made by the lex fori.
30
Also, courts will neither directly or indirectly enforce the revenue laws of
another country. A foreign law may further fail to apply where it is
fundamentally offensive to the public policy of the forum.
Of course, foreign law need not be proved formally if the parties
can agree on its legal effect. Typically, this will be done by an agreed
statement of facts submitted prior to the trial but the foreign law can be
admitted, like any other question of fact, at any point in the proceedings.
31
TORTS (CASES):
Banco do Brasil SA v. The Alexandros G. Tsavliris (1992) 3 FC 735

(CA)
READ
Walt Disney Corp. v. Triple Five Corp. (1994) 113 DLR (4th) 229
(Alta. CA)
Philips v. Eyre (1870) LR 6 QB1 (Ex. Ch.)

The Halley (1868) LR 2 PC 193
James Burroughs Distillers Plc. V. Speepmalt Whisky Distrs. Ltd.

(1989) SLT 561 (Ct. Sess.)
Machado v. Fontes (1897) 2 QB 231 (CA)

Jenner v. Sun Oil Co. Ltd. (1952) 2 DLR (2d) 526 (Ont. HC)
McLean v. Pettigrew (1945) 2 DLR 65 (SCC)
Pindling v. National Broadcasting Corp. (1984) 14 DLR (4th) 391

(Ont. HC)
Babcock v. Jackson 191 NE 2d 279 (NY Ct. Apps. 1963)

Schultz v. Boy Scouts of America, Inc. 480 NE 2d 679 (NY Ct. Apps.
1985)
Breavington v. Godleman (1988) 169 CLR 41

John Pfeiffer Pty. Ltd. v. Rogerson (2000) 203 CLR 503
Tolofson v. Jensen; Lucas etc. v. Gaguon (1994) 3 SCR 1022

Regie National des Usines Renault SA v. Zhang (2002) 76 ALJR 551
(Aust. HC)
Somers v. Fournier (2002) 60 OR (3d) 225 (CA)
In tort cases where the parties or events have some relationship

with a jurisdiction outside Australia, substantive matters should be
governed by the law of the place where the tort occurred.
Australian Broadcasting Corp. v. Waterhouse (1991) 25 NSWLR 519

(CA)
Auten v. Auten 308 NY 155, 124 NE 2d 99
An Australian Court cannot be an inappropriate forum merely by

virtue of the circumstance that the choice of law rules that apply in
the forum require its courts to apply a foreign lex causae.
Moran v. Pyle National (Canada) Ltd. (1973) 43 DLR (3d) 239 (SCC)
Canadian Commercial Bank v. Carpenter (1989) 62 DLR (4th) 734
(BC CA)
Proper Law of A Tort (1951) 64 Harvard Law Review 881

[Morris]
Peterson v. AB Bahco Ventilation (1979) 107 DLR (3d) 49 (BC CA)
Is it inherently probable that courts will achieve socially desirable

results if they apply the same conflict rule to liability for automobile
negligence, radio defamation, escaping animals, the seduction of
women, economic conspiracies and conversion? NO.
Ichi Canada Ltd. v. Yamauchi Rubber Industry Co. (1983) 144 DLR
(3d) 533 (BCCA)
32
Substitution of the theory of the proper law of the tort which, by a

single, subordinate, almost hidden sentence Morris defined as the
law which, on policy grounds, seems to have the most significant
connection with the chain of acts and consequences in the
particular situation before us.
Bagg v. Budget Rent-A-Car of Washington Oregon, Inc. (1989) 35

BCLR (2d) 36 (CA)
The proper law of the tort doctrine ... would enable the problems to
be broken down into smaller groups and thus facilitate a more
adequate analysis of the social factors involved.
Cowley v. Brown Estate (1997) 147 DLR (4th) 282 (Alta. CA)
Regie de Lassurance automobile du Quebec v. Brown (1990) 71

DLR (4th) 457 (NB CA)
The better law or proper law approach proposed by Morris is

that judges resolve multistate torts problems by selecting the law
which, on policy grounds, has the most significant connection
with the particular tort and the specific issue posed. Here, both
nationality and domicile become soft connecting factors with
considerably more manipulative potential. Courts may either stress
the intent of the parties to stay in the country of residence, or the
objective links that connect the situation with the host state, in order
to justify their preference for the law of the domicile over the
personal law of the parties. They may instead prefer to emphasize
nationality over domicile in order to achieve results that appear to
be more appropriate to the particular circumstances of the case.
The approach places parties to rely on the judge, with the danger
that the approach does not provide guidance to the judges on how
to use these powers; undermining predictability without imposing
safeguards.
The Choice of Law in Multistate Defamation and Invasion of

Privacy: An Unsolved Problem (1947) 60 Harvard Law Review 941
Bowes v. Chalifour (1991) 18 CPC (3d) 391 (Ont. Gen. Div.)
Boys v. Chaplin (1971) AC 356 (HL)
Donald v. Huntley Service Centre Ltd. (1987) 42 DLR (4th) 50 (Ont.
HC)
33
TORTS:
There is little doubt that the extent to which a plaintiffs right of

recovery is reduced by the plaintiffs own negligence is a matter of
substantive law and so governed by the law that governs the defendants
liability, presumebly the lex loci delicti. So, if contributory negligence is
a complete bar by the lex loci delicti, the plaintiffs cause of action will
be defeated.
As a general rule, in order to found a suit in England for a wrong

alleged to have been committed abroad, two conditions must be fulfilled.
First, the wrong must be of such character that it would have been
actionable if committed in England. Secondly, the act must have been
justifiable by the law of the place where it was done.
In Canada, it was held that the right to recover a particular head

of damage in tort is characterized as an issue of substantive law (and so
to be governed, presumebly, by the lex loci delicti), whereas an issue of
quantification (such as the dollar amount to be awarded for a broken leg
or for pain and suffering) is so closely tied to the working of the judicial
machinery that it probably should be seen as procedural (governed by the
lex fori).
As to foreign laws affecting the liability of parties in respect of

bygone transactions, the law is clear that, if the foreign law touches only
the remedy or procedure for enforcing the obligation, as in the case of an
ordinary statute of limitations, such law is no bar to an action (in
Canada); but if the foreign law extinguishes the right, it is a bar (in
Canada) equally as if the extinguishment had been by a release of the
party, or an action of Canadas legislature.
Vicarious liability rules are to be characterized as substantive,

not procedural.
The traditional choice of law rule has been that the substantive
rights and liabilities arising out of tortious occurrence are determinable
by the law of the place of the tort. [The modern view center of
gravityThe local law of the state which has the most significant
relationship with the occurrence and with the parties determines their
rights and liabilities in tort.]
Under traditional rules, the law of the place of the wrong governs
all substantive issues, but when the defendants negligent conduct occurs
in one jurisdiction and the plaintiffs injuries are suffered in another, the
place of the wrong is considered to be the place where the last event
necessary to make the actor liable occurred.
For jurisdictional purposes, tortious misrepresentation, whether
fraudulent or negligent, will usually be deemed to be committed in the
country where the misrepresentation was received and acted on, because
that country is substantially affected by the wrong and the law of that
country ought to have been in the contemplation of the wrongdoer.
34
THE RESTATEMENT (SECOND) OF CONFLICT OF LAWS

(PROF. WILLIS L.M. REESE)
b) The place where the conduct causing the unjury

occurred,
c) The domicil, residence, nationality, place of
incorporation, and place of business of the parties, and
d) The place where the relationship, if any, between the
parties is centered.
Choice-of-law principles..
1. A court, subject to constitutional restrictions, will follow a
statutory directive of its own stat on choice of law;
2. When there is no such directive, the factors relevant to the choice
of the applicable rule of law include
In personal injuries, the presumptive rule is

The local law of the state where the injury occurred
determined the rights and liabilities of the parties, unless, with
respect to the particular issue, some other state has a more
significant relationship to the occurrence and the parties, in
which event the local law of the other state will be applied.
a) The needs of the interstate and international system,

b) The relevant policies of the forum,
c) The relevant policies of other interested states and the
relative interests of those states in the determination of
the particular issue,
d) The protection of justified expectations,
e) The basic principles underlying the particular field of
law,
f) Certainty, predictability and uniformity of result, and
g) Ease in the determination and application of the law to
be applied.
The general principle relating to tort is as follows:
1. The rights and liabilities of the parties with respect to an issue in
tort are determined by the local law of the state which, with
respect to that issue, has the most significant relationship to the
occurrence and the parties;
2. Contacts to be taken into account to determine the law applicable
to an issue include:
a) The place where the injury occurred,
35
SUCCESSION:
Payment to such executor will be an equitable discharge if the

money has been distributed to those entitled.
Courts distinguish between administration and succession.

Questions of administration are said to be governed by the location of the
deceased persons assets, while questions of succession are generally
governed by the last domicile of the deceased person.
The general rule in England and the U.S.A. is that letters granted
in one jurisdiction give no authority to sue or be sued in another
jurisdiction, though they may be ground for new probate authority.
Rules of administration are not uniform and in each jurisdiction

the representative is required to administer according to local rules.
A foreign probate at the place of domicil has in itself no force or

effect beyonf the jurisdiction in which it was granted, but on its
production from probate will be granted thereon in all other jurisdictions
where assets are found.
Generally, all questions concerning the succession to land are

governed by the lex situs.
The principle is, that a grant of power to administer the estate of

a decedent operates only as of right within the jurisdiction which grants
the letters, and in order that a foreign representative may exercise any
such function he must be clothed with authority from the jurisdiction into
which he comes, and conform to the requirements imposed by local law.
The choice-of-law rules for testator succession are not as simple

as those for intestate succession. They start with the same general idea
that movables should be governed by the law of the last domicile of the
deceased person and immovables by the lex situs. However, these
general principles have been modified so that some aspects of testate
succession are referable to other laws.
The term foreign as applied to executors and administrators

refers to the jurisdiction from which their authority is derived and not to
residence. The estate of a deceased person is substantiallly one estate, in
which those entitled to the residue are interested as a whole, even though
situated in various jurisdictions, and although each distinct part of it must
be settled in the jurisdiction by which letters were granted whether for
the purpose of ancillary or principal administration. Ordinarily, it is the
practice to recognize the person appointed executor or administrator at
the domicil of the deceased as the person to whom ancillary letters will
be granted. But there is no privity between persons appointed in different
jurisdictions whether they be different or the same.
The general rule is that foreign personal representatives have no

authority to act without a local grant.
Academic authorities suggest that personal capcity to make a
will disposing of movables should be governed by the law of the
testators domicile at the time the will is made rather than the testators
domicile at the time of death.
Executors and administrators, in the absence of a special statute
authorizing it, have no power to sue or be sued by virtue of a foreign
appointment as such.
When any surplus remains in the hands of a foreign or ancillary

appointee after the discharge of all debts in that jurisdiction, it is usually,
as a matter of comity, ordered to be paid over to the domiciliary
appointee; and in his hands becomes applicable to debts, legacies, and
expenses.
Where a foreign executor has brough assets into a state, then as

the title is in him, he can sue as an individual, but not as executor.
36
There may be independent wills in different jurisdictions.
Bona vacantia ' is the name given to property to which no one

can make a good claim, and is said to be vested by law in the
Crown to avoid the strife and contention to which a title arising
from mere occupancy might give rise. The distinguishing feature of
the property is that it is ownerless, i.e., it has no owner, and not that
the owner cannot be found as in the case of lost or abandoned
property.
There is a general rule that testators are presumed to intend their

wills to be interpreted by the law of their domicile (when they drafted
them).
READ
In the Estate of Maldonado (1954) P 223 (CA)
On 11 October 1924, the deceased, a Spanish citizen domiciled in
Spain died there a widow and intestate, leaving movable property in
England. On 4 June 1930, the State of Spain obtained in Spain a
declaration of heirship on failure of heirs on intestacy, and now
claimed a grant of letters of administration of the English property.
On the evidence, the State of Spain was "a true heir just as any
individual heir according to Spanish law", but it was contended by
the Crown that the maxim "mobilia sequuntur personam" stopped
short of recognition of a State as successor.
Held - Assuming that there was a valid distinction between the case
where a foreign State claimed property in England of a person
dying intestate and domiciled in the territory of the foreign State on
the footing that it was ownerless and bona vacantia and the case
where the foreign State claimed to be the successor by virtue of its
own laws, in the latter case there was no rule of English law which
confined such succession to individuals having a particular quality
or characteristic or had the effect of excluding a State from
entertaining the capacity of an heir, and, therefore, the State of
Spain, as true heir was entitled to a grant.
The distribution of the distributable residue of the movables of the
deceased is (in general) governed by the law of the deceased's
domicil (lex domicilii) at the time of his death (Rule 177, Dicey).
In re Musurus (1936) 2 A11 ER 1666
37
IMMOVABLES/MOVABLES:
exercising an in personam jurisdiction. This in personam jurisdiction

is an exception to the general rule that Canadian courts have no
jurisdiction to decide title to foreign land. The exception recognizes that
some claims may have both a proprietary aspect and a contractual aspect.
This exceptional in personam jurisdiction will be exercised by
Canadian courts only if four criteria are met:
It is a rule of comity that, in matters of succession, movables

devolve according to the law of the domicile of the deceased, and
immovables devolve according to the lex rei sitae.
The general rule is that the courts of a country have no
jurisdiction to adjudicate on the right and title to lands not situated within
its borders. Only the courts of the jurisdiction in which lands are situated
may adjudicate on the rights and title to such lands.
1. The court must have in personam jurisdiction over the

defendant. The plaintiff must accordingly be able to serve the
defendant with originating process, or the defendant must submit
to the jurisdiction of the court.
Read
2. There must be some personal obligation running between the
parties. The jurisdiction cannot be exercised against strangers to
the obligation unless they have become personally affected by it.
British South Africa Co. v. Companhia de Mozambug (1893)

AC 602 (HL)
3. The jurisdiction cannot be exercised if the local court cannot

supervise the execution of the judgment.
War Eacgle Mining Co. v. Robo Management Co. (1995) 13

BCLR (3d) 362
4. Finally, the court will not exercise jurisdiction if the order would
be of no effect in the situs
It is clearly established by judicial authority and no longer
controversial among learned writers that a contract with regard to land is
governed by its proper law as defined. A conveyance or transfer of an
interest in land, on the other hand, is always governed by the LEX
SITUS. If, by a contract made in Englang, X, a British subject resident in
England, agrees to sell French land to A, another British subject resident
in England, the contractual relationship between X and A may , and
probably will, be governed by English law, but French law will govern
the consequence of the land.
The formal validity of a transfer of immovables is governed by the

law of the situs.
The law of the situs is to govern all questions relating to one partys
capacity to transfer immovables.
The law of the situs determines all questions relating to the essential
validity of a transfer of immovables such as whether an incumbrence
on title has been validly created.
A long line of authorities has held that Canadian courts have

jurisdiction to enforce rights affecting land in foreign countries if these
rights are based on contract, trust or equity and the defendant resides in
Canada. In exercising this jurisdiction, Canadian courts are enforcing a
personal obligation between the parties. In other words, they are
The validity of a transfer of movables and its effect on the property

rights of any person claiming to be interested therein are governed by the
law of the country where the property is situated at the time of the
transfer [lex situs].
38
determined by the lex loci actus.
If personal property is disposed of in a manner binding according to

the law of the country where it is, that disposition is binding everywhere.
Additionally, the transfer of personal property must be regulated by

the law of the owner's domicil, as the law which determines the
parties capacity to act and enter into contracts, and thus if valid by
that law ought to be so regarded by the Courts of every country
where it is brought in question.
The validity of a transfer of movable property and its effects on the

proprietary rights of any persons claiming to be interested therein are
governed by the law of the country where the property is situated at the
time of the transfer (lex situs).
A contract void in the place where it is made, by reason of the

omission of formalities required by the law of that place, is void
elsewhere. Courts will not treat as valid an assignment of a
movable where the formal requirements of assignments and the
assignee is, owing to his minority incapable of taking, both under
his lex domicilii and under the lex loci actus.
In case of personal property, the capacity of the parties to a

transaction has always been determined either by the lex domicilii or the
law of the place of the transaction.
A contract void in the place where it is made , by reason of the
omission of formalities required by the law of that place, is void
elsewhere.
Maden v. Long, (1983) 1 WWR 649 (BCSC)

Maden sold to Wesson, alias Hall, a mobile home in Washington.
After paying the down payment, but not the whole of the purchase
price, Wesson and the home was nowhere to be found. Wesson was
later found and convicted with larceny or theft. The home,
meanwhile, was found in Canada in the hands of a third person,
and in the suit filed in the Canadian court the prosecution sought to
present Wessons conviction in Washington as proof in their action
to recover the mobile home that the home was the proceeds of theft
or larceny. Under Canadian law the transaction between Madan
and Hall does not contitute theft. Canadian court applied Canadian
law and held for defendant.
READ:
Republica de Guatemala v. Nunez, (1927)
1 KB 669 (CA)
Manuel Estrada Cabrera, president of Guatemala, and Nunez are
domiciled in Guatemala. Cabrera deposited a sum of money in a
London bank, Messrs. Lazard Bros., and assigned the money to his
illegitimate infant son Nunez as a gift.
Under the laws of England such assignment is valid. However,
under the laws of Guatemala assignment of money made without
consideration is void unless made by a document executed before a
notary on stamped paper, and signed by both parties. Further by
Guatemalan law a minor cannot accept a voluntary assignment; it
must be made to and accepted by a tutor or legal representative
appointed by a judge to act on his behalf.
The validity of a transfer of tangible movable property is governed

by the law where the movable is at the time of the transfer.
Although a foreign plaintiff will be treated fairly, he will never be
placed in a better position than a comparable dissatisfied resident
plaintiff complaining about the same kind of transaction which took
place within the boundaries of the province. Put in the context of
this case, Washington state law cannot give the plaintiffs any better
title than they would get in British Columbia if the original sale and
Questions of form or lack of capacity in respect of an assignment

are to be determined by the proper law of the assignment, as
39
disposition on 28th and 29th September 1977 occurred here instead

of in Washington.
Century Credit Corporation v. Richard, (1962)

34 DLR (2d) 291 (Ont. CA)
Plaintiff sold and delivered a car to the buyer in Quebec. The
contract of sale reserved the title in the car to the seller until full
payment of the purchase price was made. The buyer, however, took
the car to Ontario, where he sold it to a party who was unaware of
the reservation of title. Under Quebec law, the lex situs of the first
transaction, the reservation of title did not have to be registered in
order to be effective. Under Ontario law, however, the reservation
of title had to be registered. Moreover, under Ontario law, the first
buyer could pass a good title to the second buyer although the
formers title was defective under Quebec law.
The Ontario court held that the reservation of title made in Quebec
did not affect the sale of the car in Ontario, for Ontario law should
apply to the second transfer. Accordingly, the second buyer had
obtained a good title.
In general, the mode of conveying, incumbering, trasmitting,

devising, and controlling real estate is goverened by the law of the place
of sitution of the property.
The law governing the mortgage, as such, is the law of the situs
of the land which the mortgage covers; but the debt is governed by the
law of the domicil of the party to whom it is due, no matter where the
property be situated.
The law of a country where a thing is situated determines
whether the thing itself, or any right, obligation or document connected
with the thing is to be considered an immovable or a movable.
40
CONTRACTS AND RESTITUTION:
The circumstance that parties agree that any differences are to be

settled by arbitration in a certain country may and very likely will lead to
an inference that they intend the law of that country to apply. But is is
not a necessary inference or an inevitable one though it will often be the
reasonable and sensible one.
SEE
The Warsaw Convention for the Unification of Certain Rules
Relating to International Carriage of Avi (1929), as amended by the
Hague Protocol (1955);
The fact that the parties have expressly choses to submit their
disputes under the contract to a particular arbitral forum of itself gives
rise to a strong inference that they intended that their mutual rights and
obligations under the contract should be determined by reference to the
domestic law of the country in which the arbitration takes place, since
this is the law with which arbitrators sitting there may be supposed to be
most familiar.
United Nations Convention on the Carriage of Goods by Sea (1978)

Convention on limitation of liability for Maritime Claims (1976)
Athens Convention relating to the Carriage of Passengers and their
Luggage by Sea (1974)
The place where the contract was made is not by any means
decisive in determining the question of what law is applicable to the
contract. The substance of the obligation must be determined by the
proper law of the contract, i.e., the system of law by reference to which
the contract was made or that with which the transaction had its closest
and most real connection.
United Nations Convention on Contracts for the International Sale

of Goods (Vienna 1980)
Convention on the Law Applicable to Contractual Obligations
(Rome 1980)
Inter-American Convention on the Law Applicable to International
Contracts (OAS Convention 1994)
No court will give effect to a choice of law if the parties intended

to apply it in order to evade the mandatory provisions of that legal
system with which the contract has its most substantial connection and
which, for this reason, the court would, in the absence of an express or
implied choice of law, have applied.
Where a contract is void on the ground of immorality, or is

contrary to such positive law as would prohibit the making of such a
contract at all, then the contract would be void all over the world, and no
civilized country would be called on to enforce it.
The fact that the parties have chosen a foreign law, whether or
not accompanied by the choice of a foreign tribunal shall not where all
the other elements relevant to the situation at the time of the choice are
connected with one country which cannot be derogated from by contract,
hereinafter called mandatory rules.
A contract shall be governed by the law chosen by the parties.

The choice must be expressed or demonstrated with reasonable certainty
by the terms of the contract or the circumstances of the case. By their
choice the parties can select the law applicable to the whole or a part
only of the contract.
An evasive choice of law is unreal and unreasonable and

therefore without effect. Hence, the court will not necessarily regard an
express choice of law as being the governing consideration where a
41
system of law is chosen which has no real or substantial connection with

the contract looked upon as a whol. The reason is that the lack of
connection may, in a given situation, be evidence of an evasive intent.
When the parties expressly agree that the contract shall be

subject to a certain law, it has been intimated that the court will give
effect to this intention; but no such stipulation will be given effect where
it is regarded as against public policy, or where the parties would thereby
avoid the provisions of a statute of the place of making.
Since the rules of private international law are usually not of

constitutional force, they are subject to being overridden by legislative
fiat. The ordinary treatment of foreign contracts (meaning contracts
whose proper law is not the law of the forum) is that rules of the lex fori
apply to the contract only is the rules are procedural. However, the
legislature may choose to depart from the ordinary approach by directing
the court to apply a particular substantive rule even to a foreign contract.
The legislature will do this if it regards the policy behind the particular
rule as important enough to prevail over the more general policies
notably party autonomy underlying the rule that the proper law
ordinarily governs.
The criterion by which to ascertain whether a particular inquiry

relates to the substance of the contract or the remedy merely is said to be:
Suppose the legislature of the locus contractus to enact the law of the
forum, making it applicable to the existing contract. If the result is that
the obligation of the contract is either increased or impaired thereby, then
the point to which the law of the forum relates is part of the obligation or
substance of the contract and is not merely a matter of remedy, and the
lex loci, not the lex fori, should control. If, on the other hand, the result is
that the obligation of the contract is not at all affected, being neither
increased nor diminished, then the inquiry relates to a matter of remedy
only, and the lex fori should govern.`
A court can apply the law of its own jurisdiction in substitution

or supplementation for the proper law of the contract in two
circumstances. The first is where the local law is procedural. The second
is where the local law, although substantive rather than procedural, is of
such a nature that it should be applied. The court has no alternative but to
do this where the local legislation specifically states that certain
procedures will apply, notwithstanding that the proper law of the contract
may indicate otherwise. This sort of provision is referred to by the
authorities as a choice of law rule, the court may nevertheless apply a
provision of local law in preference to the foreign proper law of the
contract where it is satisfied that it would be contrary to public policy to
do otherwise.
WHARTONA contract, so far as concerns its formal making, is to be
determined by the place where it is solemnized, unless the lex situs of
property disposed of otherwise requires; so far as concerns its
interpretation, by the law of the place where its terms are settled, unless
the parties had the usages of another place in view; so far as concerns the
remedy, by the law of the place of suit; and so far as concerns the
performance, by the law of the place of performance.
42
MARRIAGE AND COHABITATION

Re: Hassan and Hassan
(1976) 12 OR (2d) 432 (HC)
A legislature may as a matter of social policy choose whether and under

what circumstances to extend some or all of the attributes of marriage to
unmarried couples.
There are, basically, two alternative choice-of-law rules the dual

domicile rule and the intended matrimonial home rule. Under the former,
each party is required to be capable of marrying the other according to
the law of each partys ante-nuptial domicile. Although this is an onerous
rule, it is the one that has been generally preferred by common law
courts. According to the latter doctrine, it is the law of the intended
matrimonial home that is to govern the capacity of both parties at the
time of marriage.
Whether a marriage is valid or not usually arises as a preliminary issue in

other litigious proceedings. For example, in challenging a will, a legatee
may claim that a wife named in a will is not, in fact, the testators
spouse; Alternatively, faced with a charge of bigamy, a defendant may
seek to impugn the validity of the first marriage as void according to the
laws of the country where it was celebrated.
There can be no doubt of the general rule that a foreign marriage, valid
according to the law of a country where it is celebrated, is good
everywhere. But while the forms of entering into the contract of marriage
are to be regulated by the lex loci contractus, the essentials of the
contract depend upon the lex domicilii [the law of the country in which
the parties are domiciled at the time of the marriage, and in which the
matrimonial residences is contemplated.] Although the forms of
celebrating the foreign marriage may be different from those required by
the law of the country of domicile, the marrigae may be good
everywhere. But if the marriage is such, in essentials, as to be contrary to
the law of the country of domicile, and it is declared void by that law, it
is regarded as void in the country of domicile, though not contrary to the
law of the country in which it was celebrated.
The number of persons cohabiting outside marriage continues to expand

in may parts of the world. Nevertheless, the phenomenon of increased
cohabitation remains an elusive defying generalizations with respect to
its characteristic forms, its social causes, and the personal motivations
involved. The legal responses to the growth in unmarried cohabitation in
different systems remain equally diverse.
Under the common law rule, courts are prepared to recognize ceremonies
that are completely alien to those of their own law. For example,
marriages by proxy have been upheld where this was allowed under the
lex loci celebrationis but not under the law of the domicile.
Common-law spouse = common-law partner
Registered Partnerships
Cohabitationfor same sex couples who are debarred from
marriage; also for heteresexual couples as an alternative to marriage.
Same-sex couples = same-sex partners
READ:
Toope v. Syvertsen
(1995) 5 BCLR (3d) 174 (SC)
READ:
Legal Recognition of Same-Sex Partnerships: A Study of

National, European and International Law [Wintemute and
Andenaes, editors; Oxford; Hart Publishing, 2002]
Brook v. Brook
(1861) 8 HL Cas. 193
43
DISSOLUTION OF MARRIAGE AND OTHER UNIONS:

Downton v. Royal Trust CO.
(1972) 34 DLR (3d) 403
Generally, the courts of the parties domicile at the time divorce

proceedings were commenced had exclusive jurisdiction. [At some time,
a married woman necessarily shared her husbands domicile.]
Knight v. Knight
(1995) 16 RFL (4th) 48 (Ont. Gen. Div.)
The impact of an invalid foreign divorce decree on a subsequent

marriage is greatly diminished where legal obligations flow from the fact
of cohabitation as opposed to the marital status of the parties.
Fromovitz v. Fromovitz
(1977) 16 OR (2d) 751 (HC)
The time-honored rule is that a decree of divorce granted in the country

where the parties are domiciled will be recognized as dissolving the
marriage.
Qureshi v. Qureshi
(1971) All ER 325 (Fam. Div.)
A divorce granted in any of the states (of the U.S.A.) must, subject to a
few limitations, be recognized in all other states under the full faith and
credit clause of the U.S. Constitution. This means that so long as the
person was domiciled in one of the United States, a divorce obtained
anywhere in the U.S. will be recognized here regardless of which state
granted the decree or how short the residence in that state was, because
the state of the domicile will be constitutionally bound to recognize it.
Schwebel v. Ungas
(1965) SCR 148 (headnote)
Rathqiesser v. Rathqiesser
(2000) 46 OR (3d) 577 (CA)
A foreign divorce can be recognized if an English court could have taken

jurisdiction in the same circumstances, mutates mutandis, as the foreign
court did.
In order for a foreign divorce decree to be recognized in Canada, it must
fulfill certain basic conditions beyond simply meeting the requirement of
appropriate jurisdiction of the rendering court: the decree must be a final
order requiring no further steps to dissolve the marriage conclusively; it
must not have been obtained by collusion or fraud; and the proceedings
must have conformed to Canadian rules of natural justicefailure to
notify the other party will usually present recognition. If all of these
conditions are met, the foreign court granted the divorce or otherwise
look at the merits of the case.
READ:
44
The courts of a foreign country have jurisdiction ot pronounce a decree

of nullity of marriage if the marriage was celebrated in such foreign
country.
NULLITY:
The distiction between void and voidable marriages continues to retain
some importance in resolving questions of nullity jurisdiction and the
recognition of foreign nullity decrees.
If a nullity decree is granted by a Court where one of the parties has a

real and substantial connection, the Courts (of England) would now
recognize such a decree.
Joint residence is a sufficient basis for the existence of nullity

jurisdiction, whether the marriage is void or voidable.
Like foreign divorce decrees, a foreign nullity decree can be refused

recognition on the ground that it was obtained by fraud or in
contravention of the rules of natural justice or even, it appears, on the
ground that it would offend notions of substantial justice.
Residence of the respondent alone within the state/province at the date of

commencement of proceedings is a sufficient basis for jurisdiction.
The fact that a marriage was celebrated in a particular country may be
sufficient to give the courts of that place jurisdiction to annul the
marriage.
READ:
Rafferty, Recognition of Foreign Nullity Decrees (1981-82),
46 Saskatchewan Law Review 73
READ:
Sangha v. Mander
(1985) 6 WWR 250 (BCSC)
Subject to certain exceptions, a decree of nullity of marriage pronounced

by a foreign court of competent jurisdiction will be recognized as
binding and conclusive by the (English court). Such a decree would be
recognized if, at the commencement of the proceedings in the foreign
country, the parties were residents of such foreign country, and in the
case of a void marriage, the marriage was celebrated in the country
where the decree was pronounced. A foreign decree of nullity will also
be recognized (in England) if the English court would have had
jurisdiciton in converse circumstances to entertain the proceedings.
Easterbrook v. Easterbrook
(1944) P 10, (1944) 1 A11 ER 90
Hutter v. Hutter
(1944) P 95, (1944) 2 A11 ER 368
Gwyn v. Mellen
(1979) 6 WWR 385 (BCCA)
There is a presumption that unproven foreign law is the same as that of

the forum.
45
CHILDREN:
RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR

THE PROTECTION OF CHILDREN.
The attitude of the common law to international disputes over children

has been very strongly influenced by the way in which child custody and
similar disputes should be resolved at the domestic level, and little
influenced by general principles of private international law. It could
never be argued that respect for international comity pervaded the rules.
The overriding consideration has been that in determining such issues the
paramount consideration for the court should be the childs welfare.
As in many family law areas, choice of law has never been considered
relevant in relation to custody rules. The law of the forum applies
without fail, the justification being that the interests of the child, given
precedence under substantive domestic law, cannot be superseded b
incompatible foreign rules. Jurisdictional rules, including the discretion
to decline jurisdiction, will often ensure that the lex fori is the
appropriate law. In addition, where custody is decided as an ancillary to
divorce, the lex fori rule for divorce is simply carried over.
Although parts of the common law would have seen significant

developments in the field of jurisdiction over custody disputes, the
choice of law position seems unaffected. The law of the forum is
appliedOne of the policy justifications for the application of the law of
the forum is the fact that substantive family law requires the welfare of
the child to be regarded as the paramount consideration. That concern
carries over from the substantive law to influence the choice of law
decision.
At common law, it is not possible to enforce a foreign custody order;

such an order can only be considered by the domestic court as an element
to be weighed in the course of a new proceeding to determine custody.
[The broad common law jurisdiction to hear applications for custody
despite existing foreign orders can lead to conflicting custody orders with
all the hardship that such a situation entails.]
Adoption is unknown to the common law. As a result, rules governing
adoption are exclusively statutory in nature.
Determination of custody is ancillary to divorce. A custody issue should

be decided in the state/province with which the children have the closest
connection. It is, therefore, possible for the divorce petition and the
custody issue to be heard in two different places. Nevertheless, a custody
claim must be filed with the court hearing the divorce petition, which
then must decide whether a transfer of the custody claim is warranted.
Intercountry adoption is legally complex not only because the rules of

private substantive law governing adoption vary significantly from one
country to another, giving rise to problems of private international law
questions of jurisdiction, applicable law and recognition of foreign
adoptions but also because in many countries intercountry adoption is
in addition subjected to various provisions which overrie those rules of
private international law: laws requiring preliminary permission to adopt
a child in intercountry cases, immigration laws, nationality laws and
others.
Read:
UNIFORM
CHILD
CUSTODY
ENFORCEMENT (UCCJEA, 1999)
JURISDICTION
AND
HAGUE CONVENTION ON JURISDICTION, APPLICABLE LAW,

RECOGNITION, ENFORCEMENT AND CO-OPERATION IN
46
READ: 1965 Hague Adoption Convention and the Inter-American

Adoption Convention of 1984.
foreign adoption must not be contrary to public policy. Beyond that, they
vary considerably both as to the degree of liberalism of their recognition
and as to the criteria for recognition.
Some systems tend to see adoption primarily in terms of the relationships

it creates and the question then is what law governs its conditions and
effects. These systems focus on the question of applicable laws and the
problem of the jurisdiction of authorities remains of a subsidiary
character. This approach might be called the conflicts approach. Other
systems, in contrast, see adoption primarily as a decision of the courts (or
administrative authorities) who create a new status by virtue of the power
conferred upon them by their own law, the lex fori. Here the question of
international jurisdiction is of primary importance, the applicable law
being in principle the authorities own law. This might be called the
jurisdictional approach.
In re: Valentines settlement

(1965) Ch. 831 (CA)
since adoption creates a new status and since
questions affecting status are generally determined by
the law of the domicile, a foreign adoption in order to
be recognized everywhere, must be validly created by
the law of the domicile of the adopting parent
Conflicts approach and the Jurisdictional approach may lead to

significantly different results. Whereas in the former approach the
personal law of the adopters and/or the child are of primary importance,
in the jurisdictional approach, even in an international case, the courts
will apply their own law, the lex fori. Yet, there seems to be a growing
agreement worldwide that whatever choice of law system is preferred,
the welfare of the child should be of paramount importance and should
temper a mechanical application of conflict rules.
The recognition or non-recognition of foreign adoption is a question of
great practical importance in the intercountry adoption in particular
because several countries from which many adopted children come
require that the child be adopted in the country of origin either before the
child leaves the country or some time thereafter. The field of recognition
is characterized by a considerable lack of uniformity. The core problem
is the recognition of a foreign adoption order by persons who are
nationals of or domiciled or habitually resident in the country where
recognition is sought. All systems agree that the recognition of the

47
MATRIMONIAL PROPERTY
Where matrimonial property proceedings are launched in more than one

jurisdiction, questions may be raised as the whether one of the actions
should be stayed in the discretion of the court or even whether an antisuit injunction should be granted to prohibit one of the parties from
taking action abroad.
At common law, the effect of marriage on the parties proprietary rights

depended initially on whether they had entered into a valid marriage
contract or settlement. If they had, then the rights of the parties in respect
of all the property within the contracts ambit would be referred to the
terms of the contract, despite any subsequent change in the parties
domicile.
The marriage contract will be construed with reference to the proper law
of the contract, i.e., in the absence of reason to the contrary, by the law of
the husbands actual domicile at the time of the marriage generally
denominated the matrimonial domicile. That term means the husbands
actual domicile at the time of the marriage, and not the domicile which
the spouses may have intended to acquire and did acquire immediately
after the marriage.
It is settledthat where there is a marriage contract, the terms of the

contract governs the mutual rights of husband and wife in respect of the
property affected by the contract which may be then possessed or
afterwards acquired.
When a marriage contract existsthe rights of the parties cannot be
affected by a subsequent change of domicile, but will always be covered
by the proper law of the marriage contract or settlement. The foundation
for this rule is the principle that a change of domicile cannot affect
existing contractual obligations.
The parties may enter into a contract to be governed by a particular legal

regime in order to override the lex situs choice of law rule. Though the
courts of a foreign nation may not have power to adjudicate over the land
inherited in (British Columbia), it is open to the parties to contract to
have their rights adjudicated in (British Columbia) according to the law
of a foreign system if that be their intention.
In the absence of an express marriage contract, there is authority for the

view that the parties might be held to have impliedly contracted to adopt
the marital property regime of their matrimonial domicile, generally
interpreted to be the husbands domicile at the time of marriage.
READ:
TEZCAN V. TEZCAN (1992), 62 BCLR (2d) 344 (CA)
Failing an express or implied marriage contract, the matrimonial

domicile governs the spouses rights to each others movables whereas
the law of the situs governed their rights to each others immovable. The
cases suggest, however, that, as regards movables, the matrimonial
regime would vary with a change of domicile save in so far as vested
proprietary rights has been acquired under the law of the former
domicile.
DEVOS V. DEVOS (1970), 10 DLR (3d) 603 (Ont. CA)

In many jurisdictions, a marriage contract is by no means conclusive and
the court retains a broad discretionary power to divide property otherwise
than in accordance with the agreement.
48
FOREIGN CORPORATION
may impose such terms for the admission of foreign corporations as it

may deem best; or may exclude them, and this power extends to a single
one already within its jurisdiction, if the act does not deprive it of
property without due process of law, and the mere right to extend its
business into a state is not property in this sense. The right of a state to
prevent foreign corporations from continuing to do business within its
borders is a correlative of the right to exclude them therefrom, and as this
power is plenary, the state, so long as no contract is impaired, may
exercise it in consideration of acts done in another jurisdiction.
One created by or under the law of any other state or government.

A corporation can have no legal existence out of the boundaries of the
sovereignty by which it is created. It exists only in contemplation of law,
and by force of the law, and where that law ceases to operate, ans is no
longer obligatory, the corporation can have no existence. It must dwell in
the place of its creation, and cannot migrate to another sovereignty.
It may contract in other states within the scope of its own powers and
subject to the laws of the lex loci contractus or the lex loci solutionis, as
the case may be, as natural person my contract where they do not reside.
Business cannot be carried on in a state by a foreign corporation which

has not complied with all the conditions imposed by the state as a
prerequisite to doing business within its limits.
Unless expressly forbidden to do so a corporation may acquire rights of

contract and property in a foreign jurisdiction, private corporations will
be permitted to transact in other states the business authorized by the
state of their creation, subject to any limitations imposed by express
legislation, or to the laws and policy of the state in which it does
business.
The question of the power of a foreign corporation to take hold and

transmit title to land is one of public policy and no general rule can be
formulated. [In the absence of prohibitory local law, there is much
authority that, if authorized to do so in the state of their creation,
corporations may hold land their states; unless forbidden to do so wither
by the public policy of the state, or its statue law.] In all cases involving
the right of foreign corporations to hold lands the lex rei sitae governs.
Every power, however, which a corporation exercises in another state,

depend for its validity upon the laws of their sovereignty in which it is
exercised, and a corporation can make no valid contract without their
sanction, express or implied; any other exercise of powers by it rests
absolutely upon the doctrine of comity; and is subject to the laws and
regulation, process and remedial jurisdiction of the state of business or
temporary domicil. Whatever limitations a state statute may impose upon
a foreign corporations liberty of contracting, whatever its
discriminations, they become conditions of the permission to do so
business in the state and such conditions were accepted with the permit.
In suits against foreign corporations, the question of jurisdiction is of

first importance, and it is the general rule that a corporation, like a
natural person, cannot be sued in personam in a state within whose limits
it has never been found. Exceptions: a) Where a corporation had
established a permanent agency in the state or country; b) When it is
agreed with the state that process may be served on it; c) When it is
agreed with the opposite party that an action may be brought against it to
enforce a contract against it in a state or country other than its domicil.
With respect to what constitutes a valid service on a foreign corporation,
the subject is generally regulated by statues.
Foreign corporation are sometimes by the legislation of a state made

domestic corporations for certain pruposes, as for jurisdiction. A state

49

Robles Notes on Conflict of Laws Principles

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Robles Notes on Conflict of Laws Principles

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ROBLES NOTES ON CONFLICT OF LAWS

TRANSCRIBED BY L+A 2014A

No State or nation can, by its laws, directly affect or bind

The instances of deference to foreign law are seen as an attempt

From these two maxims or propositions there flows a third, and

Under the local law theory, conflict of laws is a branch of the

The application of foreign law is not a matter of caprice or

Every nation possesses an exclusive sovereignty and jurisdiction