CONFLICT OF LAW
WALKER – SPRING 2006
I. INTRODUCTION
A. The Subject Matter
i. 3 Topics in Conflicts
1. Jurisdiction
2. Choice of Law
3. Recognition and Enforcement of Judgments
ii. 3 Major Topics That Lawyers Must Address
1. Where can the parties resolve a dispute by suit or other means, such as arbitration?
2. What law will a court or arbitrators apply to resolve the dispute?
3. What will be the effect of any judgment or award?
Ø Parties to a commercial transaction should ask these same basic questions before they sign any contract.
Ø In commercial agreements, the parties can, by properly drafted provisions, exercise substantial control over the place and method of dispute resolution, and the law that courts or arbitrators will apply.
B. The Functions of the Conflicts as a Body of Law
i. Must have co-equal sovereigns to have a conflict. No conflict if one is subordinate
1. supremacy clause – constitution, federal statutes, and treaties supremacy over states
ii. Mere fact that laws are not identical does not create a conflict
1. must have a conflict where the result of the case would differ depending on law chosen
iii. There are rules governing Jurisdiction and the Enforcement of Judgments
iv. No country that believes a foreign court has improperly exercised jurisdiction will recognize that court’s judgment
v. Choice of Law
1. it has been customary to regard the attainment of uniform solutions as the chief purpose of choice of law rules as well as to protect the legitimate expectations of the parties
2. In recent decades, there has been increased recognition that one purpose for choosing law is to give effect to the policies underlying the diverse domestic rules of the jurisdictions that have contacts with the parties or the transactions.
3. Other relevant policies include facilitating interstate and international transactions.
C. History
i. Conflict of Laws had an arrested development in England
ii. The centralization of power in the King and the establishment of a common law for the whole realm put an end to the conflicting laws inside the kingdom and eliminated the intra-national conflict of laws
iii. A principle of venue kept international conflict of laws cases out of common law courts because trial required a jury of the vicinage and the courts felt unable to adjudicate cases arising in other countries
iv. Specialized courts such as merchant courts and courts of admiralty were created
v. Eventually the common law courts developed a fiction and allowed international cases using the presumption that the facts occurred in England
vi. The idea persisted that an English court must decide a case under English law
vii. In the 19th and 20th centuries England developed a coherent body of conflict of laws rules
viii. Conflicts rules developed in Italy in the 1200’s and 1300’s under the city state conditions
ix. France and the Netherlands developed conflicts theories
D. The Conflict of Laws Today
i. Judicial Jurisdiction
1. The Due Process clauses of the Fifth and Fourteenth Amendment limit the jurisdiction of state and federal courts
a.
tinue their attempts to fashion rules that avoid mechanical approaches yet provide reasonable predictability
2. One method of eliminating conflicts between state rules is to substitute federal law
a. Past attempts to do this in other areas has failed
3. Some scholars argue that states cannot be trusted to determine when to apply their laws and that either Congress or the federal courts should impose rules under the Constitution under due process, full faith and credit, commerce, and equal protection
4. The SC did impose some restrictions on choice of law early in the 20th century but more recently the SC has allowed the states to do pretty much what they will with choice of law
5. Internationally, there are many treaties in force affecting choice of law
a. Ex. The United Nations Convention on Contracts for the International Sale of Goods
i.Sets out uniform law to cover certain aspects of international sales
II. DOMICILE: THE CHOSEN POINT OF ENTRY
A. What is Domicile
i. Domicile in one sense is not the same in another place
ii. Residence may be equated with Domicile
1. Juris to Adjudicate (Judicial Juris) – authority of a court to act on persons or property before it
Personal juris – jurisdiction over the person – in personam
