I. Topic One: Introduction to Conflict of Laws
The Four Classic Approaches
1. Single Concepts or Principles – The First Approach
· The Statuists: from the 13th to the 18th C, the statuists tried to find a solution to conflicts arising from the multiplicity of small states and their local laws. The simplistic theory was used.
· Napoleon, Mancini and the law of the citizen: Influenced by the personal law theory of the statuists, the French Civil Code invoked the law of the citizen for questions of status and capacity. Because the C.C. was considered superior, all French citizens should benefit from it, wherever they were. Mancini advanced the lex patriae theory further in the second half of the 19th C. The law of the ship’s flag, as a concept, is very similar to the concept of the law of the citizen of Napoleon and Mancini.
· Savigny: suggested that there could be a common theory of conflicts for all nations. It was necessary to classify legal relationships, not laws, and not by their object, but rather by their place (or “seat”) The seat was determined by 4 factors or contacts: (1) the domicile of the parties; (2) the geographic location of the object or thing in dispute; (3) the place of performance of a juridical act, or (4) the forum.
· Story, Territoriality and vested Rights: based his writings on ‘comity,’ the principle that one state should recognize the legitimate laws of another so that the laws of the first state will also be recognized when appropriate. Appropriateness was usually found in the recognition of the laws of a particular territory. Law of the flag can be described as an off-shoot of the territoriality theory.
· Lex Fori – Cook & Ehrenzweig: Local law (lex fori) provides virtually the only justice in conflicts cases.
· The Proper Law: the ‘proper law of the contract’ was used by Westlake who defined it as “the law of the country with which the contract has its most real connection.” See more at p.10. Also ‘most significant relationship’
· The American Conflicts Revolution: American courts do not necessarily follow any particular contemporary conflicts theory but often apply one theory, or part of it, on one occasion and another theory (when seemingly convenient) in other circumstances. Currie was instrumental in developing the distinction between true and false conflicts. In false conflicts, only one state had a genuine interest in having its law applied. This state was usually the forum. In true conflicts, where both states had such a genuine interest, Currie advocated application of the lex fori in all cases, refusing to weigh the competing interests if the laws concerned, on the ground that such a task belonged to Congress, and not the courts. The American Conflicts revolution has led the world in development of choice of law rules in both contract and tort.
· Problems with the American approach at p. 17 (TEXT)
· National in Theory
· National in Practice
· No stimulus to look outward
· How to evaluate ‘interests’
· Is equity the criterion
· Problems with the legal system
· Cri de coeur
· American Public Social Services
· Distributive vs. corrective (American) justice
· Conclusion – American conflicts theory: One may conclude that the American system of conflicts of law is very advanced, is the subject of intense legal writing and thinking, but in many respects is very peculiar to the US. The social and legal system in America is corrective rather than distributive in approach. And it is the private insurance industry which is expected to provide the benefits to society after suit, rather than the government, which in most other industrialized countries provides social services to the whole population without suit through social programmes. The American system thus favours litigation rather than government distribution of benefits and this, in turn, causes a different approach to problem-solving in the conflict of laws. Inequalities in compensation are thus generated by the system. Because of these inequalities, many of the various forms of American conflict of law theory look to equity to solve conflict problems, rather than seeking the properly applicable law.
2. Multiple Numbered Rules (“Private Conflict Codes) – The Second Approach
· Dicey & Morris: present conflicts of law rules as decided by English courts and occasionally disagree with the decisions and present alternatives.
· McLeod: proposes 205 rules: The first 4 refer to generalities and to jurisdiction, but the remainder consist of specific and detailed rules for very particular questions. Accepts that issues such as domicile, residence and situs are really only connecting factors.
· The First Restatement (1934):
· The Restatement Second (1969): Similar to Savigny’s legal relationship but the relationship is the government’s or the state’s whose interests are such that the law of that state should apply: “a court, except for constitutional restrictions and a directive of its own state, will choose the law which best reflects the relevant needs, policies and interests of the interested states on the question, providing the law so chosen also reflects the principles of certainty, predictability and uniformity, as well as providing ease of determination and application.” This provides the most authoritative solution to conflicts of laws in the U.S.
3. General Texts, Commentaries and Essays – The Third Approach
· p.25
4. The Modern Approach – National Legislation and International Conventions – The Fourth Approach
· If the most important recent theoretical finding in conflict of laws has been the most significant relationship or closest and most real connection theory, the most important recent approach to resolving conflicts has been international conventions and national legislation on conflict of laws.
· National Laws: p.28
· The Hague Convention: provide great authority and influence, attaining at times the stature of customary international law.
· Rome Convention (1980): see
the absolutism of their dicta, the authorities always follow with a general plea of the difficulty in making the substance/procedure distinctions. i.e. “The difficulty in applying this Rule lies in discriminating between rules of procedure and rules of evidence.” And thereafter follows a long discussion of exceptions with respect to witnesses, presumptions, estoppel, set-off and counter-claim, priorities, statutes of limitations, etc.
· Lord Wilberforce in Miliangos: expresses best the ambivalence of the current UK position on substance and procedure. The dichotomy is accepted but it must be circumvented if it causes injustice. The HoL was able to order the payment of a debt in Swiss francs, as claimed by the creditor, rather than in pounds sterling, which a strict application of UK procedural rules would have mandated, because the proper law of the contract was Swiss, as were the money of account and the money of payment: “though English law (lex fori) prevails as regards procedural matters, it must surely be wrong in principle to allow procedure to affect, detrimentally, the substance of the creditor’s rights.
· First Restatement: all formalities are governed by the law of the forum. Ancillaries are declared to be subject to the same treatment. Despite the averment of the First Restatement, however, ancillaries do have a proper law of their own.
· Second Restatement: Breaks the mould and does not attempt to distinguish substance from procedure. Rather, it properly describes procedure as the law with which the forum state has the most significant relationship. s.122: “A court usually applies its own local law rules prescribing how litigation shall be conducted even when it applies the local law rules of another state.” Thus sections of ch.6 which designate the law of the forum as the applicable law in all cases deal with formalities rather than procedure: see examples at p. 52. However, certain procedural rules in Ch.6 a contain exceptions which allow the court to apply a foreign law under given circumstances: “when the substantial rights and duties of the parties would be affected by the determination of the issue (s.125), where another state has “the dominant interest in the question”, and where “the primary purpose of the relevant rules of the state of the otherwise applicable law is to affect decision of the issue rather than to regulate the conduct of the trial.”
