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also called private international law the existence worldwide, and within individual countries, of different legal traditions, different specific rules of private law, and different systems of private law, all of which are administered by court systems similarly subject to different rules and traditions of procedure. The law of the conflict of laws pertains to the resolution of problems resulting from such diversity of courts and law.
Even in countries whose political structure is unitary rather than federal, regional differences can be found. In the United Kingdom considerable differences exist between the laws of England, Scotland, the Isle of Man, the Channel Islands, and Northern Ireland. Significant bodies of regional law also exist alongside national private law in France, Spain, and The Netherlands. Thus, in the Alsace-Lorraine area of France, parties may still resort to concepts of German law in matters of locally applicable law (droit local), particularly when the otherwise-governing French law lacks an applicable provision. One such example involves the Handlungsgehilfe, a type of commercial agent for whom there are special rules in German law regarding continued compensation and prohibitions of competition after termination. In this case, specific articles within the local Handelsgesetzbuch apply. Similarly, associations of civil law in Alsace-Lorraine are governed by portions of the 1914 Brgerliches Gesetzbuch, the version of the German Civil Code in use before Alsace-Lorraine was returned to France. An organization founded in 1985, the Institut de Droit Local Alsacien-Mosellan, publishes commentary on local law in books and journals such as Revue du droit local. In Spain foral (leasehold) law, rooted in medieval practices and documented in compilaciones, applies in place of the Civil Code (Cdigo Civil) to aspects of family and succession law in many regions, particularly in Navarra, Aragn, and Basque areas. In The Netherlands there are provincial and municipal bylaws, and the Netherlands Antilles and Aruba have their own laws (staatsregeling). Legal diversity may be based on religion or ethnicity as well as on territory. Such a situation has existed historically in many Islamic countries. In India the laws concerning matters of the family, including succession upon death, are different for Hindus, Muslims, Parsis, Buddhists, and other religious groups, and in Lebanon and Israel they are different for Muslims, Jews, and the various groups of Christians. American Indian reservations present similar problems when the occurrence of events on a reservation or the affiliation of a person with a reservation results in the application of tribal law rather than the law of the state in which the reservation is located. Membership in an American Indian tribe, for example, may determine the applicable law. The imperatives of religious law or the traditions of foreign law may need to be accommodated within the framework of local law and procedures. Examples are the state of New York's requirement that a party seeking a divorce must remove impediments to the spouse's ability to remarry (which takes into account the Jewish law that the husband must issue a letter of divorcementa getto the wife) and the various ways employed by German courts to accommodate the Morgengabe (a transfer of property in contemplation of marriage within Islamic law) when dealing with questions of support upon divorce under local law.
Nations Convention on Contracts for the International Sale of Goods (1980)it may displace national law, rendering the rules of conflicts law obsolete. In contrast, when an international treaty unifies conflicts law, substantive differences between national laws continue to exist, but the uniform rules provide a way to bridge them. However, conventions exist in relatively few areas of substantive law and conflicts law; also, the number of states participating in them is relatively small, and the interpretation and application of international treaties remain matters for the courts of the individual participating states. A notable exception was the Convention on the Law Applicable to Contractual Obligations (1980), commonly known as the Rome Convention, which applied in the member states of the European Union (EU) and whose interpretation lay within the scope of the European Court of Justice upon reference from national courts. The EU possesses lawmaking powers that enable it to establish uniform rules of substantive law, thereby displacing previous national law and eliminating conflicts. In 2008 the EU adopted the Rome I Regulation, which transformed the Rome Convention into binding EU law, and promulgated the Rome II Regulation, which provided rules for determining the applicable law in cases of noncontractual obligations. Projects for the unification or harmonization of laws on a wider (in some cases worldwide) basis have been pursued since the middle of the 19th century, when the Italian minister of justice Pasquale Stanislao Mancini sought to convene a conference for the harmonization of private international law. Similar efforts by the Dutch jurist Tobias Michael Carel Asser proved successful in 1893 with the founding of the Hague Conference on Private International Law. In 1904 Japan became the first non-European state to participate in the Hague Conference. Over the years, the Hague Conference has produced many conventions, some of which have enjoyed notable success, such as the Convention on the Civil Aspects of International Child Abduction (1980) and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965). The International Institute for the Unification of Private Law (Unidroit), established in Rome in 1926, sponsors projects for the unification of substantive law. Examples include its early efforts with respect to international sales law and the more recent drafting of the Unidroit Principles of International Commercial Contracts (2004). In Latin America, Mercosur (also known as the Common Market of the South)whose members include Argentina, Brazil, Paraguay, and Uruguayled the harmonization of important aspects of international business law, particularly in the areas of trademark, investment, and competition (antitrust) law. The Andean Community (Comunidad Andina; CAN) has promoted the harmonization of copyright and patent law between its member countries of Bolivia, Colombia, Ecuador, and Peru. (See also intellectual-property law.) Another unifying force of growing importance is international business practice and custom (the so-called lex mercatoria [Latin: law merchant]), to which courts, arbitration tribunals, and parties increasingly refer in their decisions and commercial dealings.
Common principles
Although few uniform international conflicts rules exist, there are a number of common principles that are recognized to varying extent throughout the world. The ancient international principle of comitywhich, like the biblical Golden Rule, posits that even sovereign states should extend courtesies and privileges to each otherexplains why one country would give effect to the law of another. A formal requirement of reciprocity could actually limit the extent of these courtesies and privileges to those that the other state is willing to extend. Party autonomy (i.e., the freedom of parties to decide what court shall hear their case and what law shall govern it) is recognized by most countries, those of Latin America being a notable exception. Legal systems have established different criteria for the selection of one country's law over that of another for application to a particular case or problem. There are, however, some widely (albeit not uniformly) shared principles. For questions of family law, inheritance, and (in limited types of cases) even liability in tort, legal systems will consider the nationality or, alternatively, domicile or habitual residence of a person. For commercial transactions, a transaction's closest connection to a legal system may be emphasized over traditional connecting factors such as where the transaction was concluded. Factors determining a close connection to a particular state and its law may be the place of business or principal residence of the party that is to effect the performance in question, the language used by the parties in their negotiations and contract formation, the currency and modalities of payment specified, and other factors that are not as incidental as the place of contracting may be (e.g., when a contract is concluded in a hotel or other meeting place because both parties are in transit). For cases involving legal persons (corporations), many countries, particularly those of the common-law tradition, refer to the law of the state where the entity is incorporated, but others, especially those employing civil-law principles, refer to the law of the corporate seat, defined as the place of central management and decision making. Among the latter countries, especially in the EU, there is now a trend to change to the place-of-incorporation rule. Especially with respect to commercial transactions (e.g., contracts), modern conflicts law emphasizes flexibility. This quality is evident in Article 4 of the Rome Convention, which first established the general principle that the applicable law should be that to which the contract has the closest connection. Although the article provided some presumptions regarding what law that might be, it concluded by making it possible for the court to correct the result: if the court found that, exceptionally, another law was more closely connected to the contract or to one of its issues, then it should apply that law. The convention's successor, the Rome I Regulation, replaces the presumptions with specific rules for a number of contract types and retains the general reference to the most closely connected law for all other contracts (see below Choice of law).
Jurisdiction
As stated above, the first question in an international case potentially involving conflictof-laws problems is which court has jurisdiction to adjudicate the matter. Although the plaintiff decides where to sue, the courts in that location may not have jurisdiction, or they may have jurisdiction but be unwilling to exercise it, for reasons of forum non
foreign defendant as much as it protects the local court from unfair burdens of foreign litigation. Courts likewise will not entertain actions concerning title to real property located in another country; while their judgment would bind the parties before them, the power to deal with the property itself (with effect as against all potential claimants) belongs solely to the country of location (situs). Civil-law countries generally do not dismiss actions for reasons of forum non conveniens. The European Court of Justice has held expressly that the allocation of jurisdiction by EU law (namely, the Brussels I Regulation) is binding on national courts. As an exception, the Brussels II Regulation permits dismissal or transfer for forum non conveniens reasons in child-custody cases. (See below Recognition and enforcement of judgments.) Each country determines the jurisdiction of its courts to entertain a civil law suit. In federal countries or unitary systems with strong traditions of regional or provincial jurisdiction (e.g., the United States, the United Kingdom, Canada, and Switzerland), it becomes necessary to have rules to determine in which jurisdiction a civil suit may be brought. In some countries (e.g., Germany and Austria) the central (national) law governs, while in others the constituent states may determine the jurisdiction of their courts themselves (e.g., the United States). Although state-court jurisdiction is a matter of state law in the United States, federal constitutional law, particularly the Fourteenth Amendment's due process, equal-protection, and privileges-and-immunities clauses, limits the assertion of state-court jurisdiction. Most countries allow the parties to agree to the jurisdiction of a court. Consent may take the form of an express agreement in the initial business contract or at the time the dispute arises. Alternatively, consent may be the result of conduct. The plaintiff's consent appears from the filing of the action. The defendant's consent may be presumed when, rather than objecting to the court's jurisdiction, the defendant confesses judgment or appears and begins to litigate the controversy. Even when both parties consent to a court's jurisdiction, the court in a common-law country may still decline to hear the casefor example, when neither of the parties nor the controversy has a connection to the country in which the court is located. In most cases, however, a court's jurisdiction is not an issue unless and until the defendant objects to it.
Differences between civil-law and common-law countries in the absence of a choice by the parties
Traditionally, civil-law and common-law countries have followed different approaches in determining which court has jurisdiction in a civil action when the parties have not agreed on or submitted to the forum. Civil-law countries start from the premise that there is one principal place where a suit can be filed: the domicile of an individual or the seat of legal persons such as a corporation (general jurisdiction). In addition to these general bases of jurisdiction, a suit ordinarily may be brought in the courts of the place to which the suit has a special connectione.g., where a tort was committed or where its effects were felt, where the alleged breach of a contract occurred, or, if title to real property is involved, where the property is located (specific jurisdiction). Increasingly, countries have limited the exercise of jurisdiction (and have prohibited parties from varying these
limitations by agreement) for the protection of weaker parties, such as employees and consumers. Such a pattern has emerged, for example, in the procedural law of the EU. Courts in common-law countries, particularly the United States, also assert jurisdiction on these bases but additionally will exercise jurisdiction simply on the basis of physical power over the person of the defendant. Thus, a court in the United States has jurisdiction over a defendant if he has been served with the documents commencing the suit in the territory of the state in which the court is located, even if he was there only temporarily or while in transit (transient jurisdiction). The United Kingdom and Ireland also exercise jurisdiction on this basis. U.S. law also provides for jurisdiction over a company when it has been connected in some ongoing way with the state, even if the particular dispute does not arise out of that connection. Thus, a court is authorized to assert jurisdiction when the defendant is doing systematic and continuous business within its state, even if the dispute arose elsewhere. Most countries provide some bases of jurisdiction for the benefit of local plaintiffs. French law, for example, grants jurisdiction if the plaintiff possesses French nationality, and German statutory law permits a local plaintiff to sue an absent defendant on the basis of any property the defendant may have in Germany, regardless of whether the litigation is related to the property or even to Germany in any other way (though modern German court decisions have given provision a more limited reach). Rules such as these, which favour plaintiffs (transient jurisdiction also falls into this category), are known as exorbitant rules of jurisdiction. Within the EU they have been abrogated in cases in which the defendant is habitually resident within the EU. However, EU member-states may retain exorbitant jurisdictional bases of national law in cases involving non-EU defendants. Internationallyi.e., beyond the EUthese rules, as well as the American doing business jurisdictional rule, are a source of considerable tension. The Hague Conference on Private International Law sought to formulate an international convention on jurisdiction and judgment recognition. The effort was abandoned when the differences proved too large to bridge. Instead, a much more limited convention on choice of court agreements was adopted in 2005 and proposed for adoption by member states and others. Both civil-law and common-law countries have special rules governing suits for judgments in rem (Latin: with respect to the thing), which concern proprietary legal rights. Unlike actions for judgments in personam (Latin: with respect to the person), which concern personal legal rights and may seek money damages or injunctions to do or not to do an act, an in rem action seeks a judgment that produces effects of its own on a legal relationship. Examples include actions to quiet title to land, to foreclose a mortgage on land (by selling it), and to remove a party's interest that encumbers title to land. In common-law countries, family-status actions (e.g., divorce or the creation of an adoptive family-child relationship) have been likened to in rem actions; for example, in divorce proceedings, particularly in the United States, the domicile of each spouse localizes the status and permits the court at the domicile to assert divorce jurisdiction. At the same time, residence of varying length (from several weeks to several months) may take the place ofor may presumptively equaldomicile for divorce-jurisdiction purposes. In contrast, civil-law countries have not likened divorce jurisdiction to in rem proceedings. They provide for divorce, including the possibility of ex parte divorce (i.e., only the
petitioner is before the court), on the basis of a close relationship to the forum statee.g., residence of a specified length of time. Central to the continued divergence of these jurisdictional approaches is the applicable law: a court following an in rem approach to status matters will always apply its own law. In contrast, courts in civil-law countries treat the action as in personam and make a choice-of-law determination that focuses on personal connecting factors such as the nationality or marital residence of the parties. Because civil-law courts make choice-of-law decisions with reference to the particular parties and their case, jurisdictional standards can be more liberal in those countries than in common-law countries, where less-restrictive standards would lead to forum shopping.
Notification of parties
Fundamental fairness requires that the defendant receive notice sufficient to afford him an opportunity to defend. In common-law countries this notice is effected by service of process on the defendant; similar procedures exist in civil-law countries. Service on the defendant in person is considered ideal; alternatively, substituted service (e.g., even by publication) is a last resort when the whereabouts of the defendant are unknown. International cases pose special problems. Countries often cooperate bilaterally, either on the basis of express agreements or as a matter of practice, in aiding each other's courts to effect service on the defendant. A very effective multilateral mechanism is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, to which some 50 countries, including the United States, China, Russia, and all the EU states, are party. It provides for a Central Authority in each member state that receives service requests from other convention states and executes them according to its own national procedures.
Choice of law
In its choice of the applicable law, the court that exercises jurisdiction determines which law to apply to a case that involves foreign parties, foreign transactions, or a number of foreign elements. In a simple world, the court would always apply its own law, the law of the forum (known in Latin as the lex fori). Indeed, some modern methodologies, particularly in the United States, favour the lex fori approach.
Historical development
Classic theories of conflicts law were territorially oriented. The German jurist and legal scholar Friedrich Karl von Savigny (17791861) sought to identify the law where, according to its nature, the legal problem or relationship had its seat. AngloAmerican law also sought the territorially applicable law because, in the view of the American legal scholar Joseph Beale (18611943), whose thoughts shaped much of American conflict-of-laws theory in the first half of the 20th century, that is where the rights and obligations of the parties vested. This vested-rights doctrine maintained that, once a right was created in one locale, its existence should be recognized everywhere.
Classic theories of conflicts law used a number of connecting factors to determine the territorially applicable law. In matters of family law, Anglo-American law used the parties' domicile (narrowly defined). In civil-law countries, by contrast, a person's nationality was until recently the most important connecting factor. Because of the influence of the Hague Conference on Private International Law, however, the reference is now more commonly to the law of a person's habitual residence (as it is in the law of jurisdiction). For torts, American law traditionally looked to the law of the place of injury, whereas European law referred either to it or to the law of the place where the wrongful conduct had occurred. Some European systems referred to the law of either of these places; this was, and continues to be, the plaintiff-favouring choice-of-law rule in Germany. For contracts, most legal systems looked to the place of performance for breach but stipulated that the place of formation was a more important connecting factor for questions of validity. These examples illustrate that rather well-defined connecting factors can identify the applicable law in a predictable manner, subject to exceptions in certain difficult cases. Despite, or perhaps because of, their predictable results, these rules at times failed to serve the interests of justice: they were inflexible, and they did not prevent important aspects of a particular case from being overlooked. Such problems could have occurred in cases involving the fortuitous commission abroad of a tort involving parties with a common domicile in the forum or in another state (where the long-term effects of the tort would be felt) or the conclusion of a contract in an unrelated state (for example, at a trade fair) between two or more parties, all of whom conducted business in a common (but different) state. In both examples, the common (home) law of the parties might serve the parties' interestsand those of societybetter than the mechanical application of traditional tort or contract choice-of-law rules. Consequently, courts and parties resorted to so-called escape devices that yielded better, more appropriate results. Among these is the recharacterization of a set of factse.g., the recasting of a question of contract as a tort or a tort question as one of family law. For example, what law governs the question of whether spouses have the capacity to sue each other or whether they have immunity? In a personal-injury case, is this a question of tort law (i.e., the law of the place of injury) or family law (law of the state of the marital domicile)? If the two laws differ, the characterization of the issue may produce different outcomes. The escape from rigid rules by means of recharacterization resulted in a period of considerable uncertainty, especially in the United States.
Contemporary developments
New approaches to choice of law, starting with the governmental-interest analysis developed by the American legal scholar Brainerd Currie, began to emerge in the 1950s. Currie's approach sought to determine whether a true or false conflict exists between the law of the forum state and that of the other involved state. A false conflict exists if the laws of both states do not differ; if, though ostensibly different, both laws are designed to effectuate the same policy; or if one law is construed to be inapplicable to cases such as the one before the court. If by these guidelines the other state is determined not to have an
interest, a false conflict exists, thus making the local law of the forum the applicable choice of law. In cases of true conflicti.e., in cases in which both the forum's law and another law claim applicabilityCurrie called for the application of forum law. He rejected any evaluation or weighing of the competing state interests, considering this to be a legislative, not a judicial, function. Contemporary applications of interest analysis do undertake to weigh the relative interest; an example is California's comparative impairment approach. Overall, governmental-interest analysis has had a significant influence on modern American conflicts law. Another approach, known as the better-law approach, attempts to determine which of two potentially applicable laws is better as a solution to the problem at hand. Not surprisingly, both the governmental-interest and the better-law approaches tend to apply the lex fori, either because the other law is deemed to be inapplicable (i.e., the other state is disinterested, or there is a so-called false conflict) in view of the forum's determination that it has the greater interest in having its law applied or because forum law, according to the better-law approach, is deemed to be better. American case law employing these approaches has tended to display a homeward trendi.e., one that favours the home forum.
Nevertheless, several of its features can make its application somewhat uncertain. For example, because the criteria provided by the Restatement (Second) are not ranked in order of priority, different courts may assign different priorities, thereby contributing to different (divergent) results. The Restatement (Second) also provides expressly that the choice-of-law determination be made for each issue of the case; as a result, different laws may apply to different issues of a case (a situation known as dpeage [French: break into smaller pieces]). This splitting of a case into its various component issues may promote just solutions for difficult international cases, but the practice significantly increases the burden on courts and on the involved parties. In addition, it diminishes the decision's value as a precedent for later cases, even if they differ only slightly. Finally, the general principles of the Restatement's section 6 accommodate all doctrinal schools from interest analysis to the better-law approachthus giving courts substantial leeway. Predictability thus depends on the development of a consistent body of case law, yet its orientation may differ from state to state.
Other considerations
Differences between the conflicts law of different countries may raise additional choiceof-law questions, such as those pertaining to the renvoi (French: send back) principle. If the foreign law, to which the forum's conflicts rule refers, contains a conflicts rule that
refers back to the law of the forum, will the latter accept the reference and apply its own law? Similarly, if the foreign law contains a conflicts rule that refers to the law of a third country, will the forum follow that reference? The underlying question hinges on whether the forum's reference to foreign law includes that law's conflicts rules in the first place. Many legal systems answer the question in the affirmative and thereby resolve the two questions posed in the foregoing. But not all conflicts systems utilize renvoi (most American courts do not), and even those legal systems that do use it or have used it in the past exclude renvoi. This is now the case in EU conflicts law with respect to tort and contract cases. On procedural issues, a court will always apply its own law. There is no agreement, however, on which issues are procedural and which are substantive. Time limitations (statutes of limitations), for example, are considered substantive in civil-law countries but procedural in certain other countries and in many states of the United States.
German court, for example, will refuse to recognize an American punitive damage judgment because, according to the German view, punitive damages exceed the purview of tort law, which seeks compensation but not punishment. Similarly, an American court may refuse to recognize an English judgment for damages because English substantive and procedural law (e.g., the burden of proof in defamation) violates U.S. constitutionallaw principles. In composite jurisdictional systems such as those of the United States and the EU, where a central norm establishes jurisdictional limits for the constituent units, alleged jurisdictional defects must be raised directly (on appeal within the particular constituent unit's system) when both parties are before the court. They cannot be raised collaterally i.e., as a defense against recognition of the judgment in another constituent unit. The effect of the first court's judgment (and of issues necessarily bound up with it) on the immediate parties, when not appealed or when affirmed on appeal, becomes res judicata (Latin: the matter is adjudicated or a thing adjudged) and is not open for reexamination in a second forum (nor in the original forum after a period fixed by the statute of limitations has expired). The scope of a judgment's res judicata effect (the recognition of a judgment as a bar to the initiation of a new suit all over again) is ordinarily that which attaches under the law of the rendering state. Exceptions may apply when the judgment is rendered by default (i.e., the defendant is not before the rendering court), when certain effects are unknown in the law of the recognizing country, or perhaps also when a judgment goes beyond the res judicata effect that the latter's law would accord.