1. INTRODUCTION TO CONFLICT OF LAWS
Conflict of laws has been the subject of theories since the very beginnings of its considerations. Most texts on private international law commence with or at least contain an historical analysis of conflicts theory. Tetley prefers to establish a “methodology” as opposed to the historical approach.
Four Classic Approaches to Solving Conflict of Laws
The First Approach – Single Concepts or Principles
Up to the present, conflict of law theories fall into the first category or approach where the solution to conflicts is found in one or a very few concepts or principles.
The Statutists
· Between the 13th and 18th centuries, the Statutists sought solutions to conflicting state laws by applying simplistic theories (“uncomplicated times”). Statutes were either real, personal or mixed according to their object and each followed different rules of conflict.
Napoleon, Mancini and the Law of the Citizen
· The laws concerning the status and capacity of persons governed French citizens, even those residing in foreign countries. Napoleon felt that the French Civil Code was so superior that all French citizens should benefit from it wherever they were.
· Mancini made further advances to the lex patriae theory.
· The law of the ship’s flag is similar to this concept of the law of the citizen.
Savigny and legal relations
· Savigny broke with the Statutists and suggested that there could be a common theory of conflicts for all nations thus promoting uniformity and preventing forum shopping. It was necessary to classify legal relationships, not laws, and not by their object but rather according to their seat/place.
· Four key factors/contacts determined the seat: (i) domicile of the parties; (ii) geographic location of the object or thing in dispute; (iii) place of performance of the juridical act; (iv) the forum
· Savigny is the father of the multilateralists who hold that once can have a common body of conflict of law rules applicable to legal transactions in all jurisdictions
Story – Territoriality, Vested Rights & Comity
· Story’s theory is based on comity, the principle that one state should recognize the legitimate laws of another so that the laws of the first state will be recognized when appropriate (typically based on territory). Law of the flag can be described as an offshoot of this theory.
Cook & Ehrenzweig – Lex fori
· Concluded that no other theory is viable and that the lex fori provides virtually the only justice in conflicts cases – law of the forum.
Morris and Cheshire – the Proper Law (Closest and Most Real Connection)
· Westlake – “proper law of the contract” = defined as the law of the country with which the contract has its most real connection.
· The closest and most real connection is the basic concept today of most conflict of law legislation, national or international. As per Tetley, this is the “greatest single contribution ever to the theory and practice of conflict law.”
· Boissevain v. Weil (1972, UK – Denning): “depends on the proper law of the contract… the place with which it has the most substantial connection.”
· also discussed the proper law of tort, which also brought in the most significant connection with the chain of acts and consequences in the situation before us
· Excerpt from s. 188 of the Restatement Second: “The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties…”
The American Conflicts Revolution (Interest Analysis – an important international effect)
Important to understand that American courts do not particularly follow any contemporary conflicts theory but often just apply one theory on one occasion and another on another occasion, when it is most convenient to them.
Governmental Interest Analysis – Pioneered by Brainerd
advancement of the forum’s governmental interests; (5) application of the better rule of law. Equal emphasis on all five considerations – have been deemed teleological or substantive recently.
MacDougal III – “best rule of law” – must identify all the interests asserted by the decision makers of all the significantly affected states. Have recently become considered ius gentium (development and application of transnational laws)
Juenger – substantive or teleological approach – debunked classical conflicts of law (multilateralists and universalists) to arrive at his own teleological or substantive approach: that the proper law be chosen by result-oriented conflict rules, thus attaining a just solution of stability and fairness (a call for a new ius commune). Argues that courts are in fact already applying this approach.
Evaluation of the American Conflicts Revolution
i) Strengths and Achievements – This US revolution has led the world in development of choice of law rules in both contract and tort – notably by the Restatement Second of 1969. Has had important international effects. US conflicts theory remains open to transformation, exemplified by Rule 5 of Restatement Second which adds that conflict rules “are as open to reexamination as any other common law rules.”
ii) Weaknesses – Although US conflicts theory is advanced, it is primarily national in character (theory & practice – between American states or Federal gov’t and citizens). It for the most part ignores international theories of conflicts. Theorists hardly ever study a wholly international problem.
