Conflict of laws
Conflict of laws (sometimes called private international law) concerns the process for determining the applicable law to resolve disputes between individuals, corporations (and in some systems the state in certain contractual relationships) in multi-jurisdictional cases and transactions. Conflict of laws especially affects private international law, but may also affect cases where a contract makes incompatible reference to more than one legal framework.
The term "conflict of laws" is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. In most other countries, the term private international law is used. Conflict of laws usually refers to domestic laws that are not part of international law, and the calculus only includes international laws when the nation has treaty obligations. For countries that use the "private international law" terminology, it comes from the private law/public law dichotomy in civil law systems. In this form of legal system, the term "private international law" does not imply an agreed upon international legal corpus.
Choice of lawsEdit
Courts faced with a choice of law issue have a two-stage process:
- the court will apply the law of the forum (lex fori) to all procedural matters (including the choice of law rules);
- it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or the law of habitual residence (lex domicilii). (See also 'European Harmonization Provisions': "The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii".) The court will determine the plaintiffs' legal status and capacity. The court will determine the law of the state in which land is situated (lex situs) that will be applied to determine all questions of title. The law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.
Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). In the EU, this is governed by the Rome I Regulation. Choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract and will be determined by the law of the state where the choice of law clause confers its competence. Oxford Professor Adrian Briggs suggests that this is doctrinally problematic as it is emblematic of 'pulling oneself up by the bootstraps'.
Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. This judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors; it also harms consumers as vendors often impose one-sided contractual terms selecting a venue far from the buyer's home or workplace. Contractual clauses relating to consumers, employees, and insurance beneficiaries are regulated under additional terms set out in Rome I, which may modify the contractual terms imposed by vendors.
- Briggs (2008). The Conflict of Laws. pp. 2–3.
Clarkson; Hill (2006). The Conflict of Laws. pp. 2–3.
Collins (2006). Dicey, Morris and Collins on The Conflict of Laws. p. 36 (paras. 1-087 et seq.).
Hay; Borchers; Symeonides (2010). Conflict of Laws. pp. 1–3.
McClean; Beevers (2009). The Conflict of Laws. pp. 4–5 (para. 1-006).
North; Fawcett (1999). Cheshire and North's Private International Law. pp. 13–14.
Rogerson (2013). Collier's Conflicts of Laws. pp. 3–4.
Symeonides (2008). American Private International Law. pp. 15–16 (para. 2).
- Encyclopedia Britannica[vague]
- Encyclopedia Britannica[vague]
- Encyclopedia Britannica[vague]
- Dow Jones v Gutnick  HCA 56[permanent dead link]
- Adrian Briggs, The Conflict of laws, Clarendon Law Series third edition 2013
- Rome I Regulation Article 3(1), Also see Macmillan v Bishopsgate Investment Trust plc  1 WLR 387 per Staughton LJ 391–392; Golden Ocean Group v Salgocar Mining Ltd  EWCA Civ 542
- Rome I Regulation, Article 5-Article 8
- American Law Institute (ed.). Restatement of the Law, Second: Conflict of Laws. St. Paul.
- Briggs, Adrian (2008). The Conflict of Laws (Second ed.). Oxford: Oxford University Press.
- Born, Gary (2009). International Commercial Arbitration. Kluwer.
- Calliess, Gralf-Peter (2010). The Rome Regulations: Commentary on the European Rules of the Conflict of Laws. Kluwer.
- CILE Studies (Center for International Legal Education – University of Pittsburgh School of Law) Private Law, Private International Law, and Judicial cooperation in the EU-US Relationship
- Clarkson, C.M.V.; Hill, Jonathan (2006). The Conflict of Laws (Third ed.). Oxford: Oxford University Press.
- Collins, Lawrence; Harris, Jonathan, eds. (2017). Dicey Morris and Collins on The Conflict of Laws (Fifteenth ed.). London: Sweet & Maxwell.
- Hay, Peter; Borchers, Patrick J.; Symeonides, Symeon C. (2010). Conflict of Laws (Fifth ed.). St. Paul, Minn.: West.
- McClean, David; Beevers, Kisch (2009). The Conflict of Laws (Seventh ed.). London: Sweet & Maxwell.
- North, Peter; Fawcett, J.J. (1999). Cheshire and North's Private International Law (13th ed.). London: Butterworths.
- Reed, Alan (2003). Anglo-American Perspectives on Private International Law. Lewiston, N.Y.: E. Mellen Press.
- Rogerson, Pippa (2013). Collier's Conflicts of Laws (Fourth ed.). Cambridge: Cambridge University Press.
- Symeonides, Symeon C. (2008). American Private International Law. Wolters Kluwer.
- The European Institute for International Law and International Relations
- CONFLICT OF LAWS .NET – News and Views in Private International Law
- American Society of Comparative Law Official website
- ASIL Guide to Electronic Resources for International Law
- Hague Conference on Private International Law official website.
- Max Planck Institute – for Comparative and International Private Law
- British Institute of International and Comparative Law
- International Chamber of Commerce
- International Court of Arbitration
- International Institute for the Unification of Private Law(UNIDROIT)
- Private International Law, Research Guide, Peace Palace Library
- United Nations Commission for International Trade Law
- U.S. State Department Private International Law Database
- Why the Hague Convention on jurisdiction threatens to strangle e-commerce and Internet free speech, by Chris Sprigman
- EEC Rome convention 1980
- International & Foreign Law Community
- Republic of Argentina v NML Capital Ltd  EWCA Civ 41, regarding a hedge fund's enforcement of claim against Argentina