Conflict of laws (also called private international law) is the set of rules or laws a
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: ''jurisdiction'', rules regarding when it is appropriate for a court to hear such a case; ''foreign judgments'', dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and ''
choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in t ...
'', which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any
private-law context, but they are especially prevalent in
contract law
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
and
tort law
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
.
Scope and terminology
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. Elsewhere, the term ''private international law'' is commonly used. Some scholars from countries that use ''conflict of laws'' consider the term ''private international law'' confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; the calculus only includes international law when the nation has treaty obligations (and even then, only to the extent that domestic law renders the treaty obligations enforcable). The term ''private international law'' comes from the
private law/
public law dichotomy in
civil law system
Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as t ...
s. In this form of legal system, the term ''private international law'' does not imply an agreed upon international legal
corpus
Corpus is Latin for "body". It may refer to:
Linguistics
* Text corpus, in linguistics, a large and structured set of texts
* Speech corpus, in linguistics, a large set of speech audio files
* Corpus linguistics, a branch of linguistics
Music
* ...
, but rather refers to those portions of domestic private law that apply to international issues.
Importantly, while conflict of laws generally deals with disputes of an international nature, the applicable law itself is domestic law. This is because, unlike
public international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
(better known simply as ''international law''), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which a country is party.
Moreover, in federal republics where substantial lawmaking occurs at the subnational level—notably in the United States—issues within conflict of laws often arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than of foreign countries.
History
Western legal systems first recognized a core underpinning of conflict of laws—namely, that "foreign law, in appropriate instances, should be applied to foreign cases"—in the twelfth century.
Prior to that, the prevailing system was that of ''personal law'', in which the laws applicable to each individual were dictated by the group to which he or she belonged.
Initially, the mode of this body of law was simply to determine which jurisdiction's law would be most fair to apply; over time, however, the law came to favor more well-defined rules. These rules were systematically summarized by law professor
Bartolus de Saxoferrato
Bartolus de Saxoferrato (Italian: ''Bartolo da Sassoferrato''; 131313 July 1357) was an Italian law professor and one of the most prominent continental jurists of Medieval Roman Law. He belonged to the school known as the commentators or postglos ...
in the middle of the fourteenth century, a work that came to be cited repeatedly for the next several centuries.
Later, in the seventeenth century, several Dutch legal scholars, including
Christian Rodenburg
Christians () are people who follow or adhere to Christianity, a monotheistic Abrahamic religion based on the life and teachings of Jesus Christ. The words ''Christ'' and ''Christian'' derive from the Koine Greek title ''Christós'' (Χρι ...
,
Paulus Voet,
Johannes Voet
Johannes Voet, also known as John Voet (3 October 1647 – 11 September 1713) was a Dutch jurist whose work remains highly influential in modern Roman-Dutch law.
Voet is one of the so-called "old authorities" of Roman-Dutch law, along with Hu ...
, and
Ulrik Huber, further expounded the jurisprudence of conflict of laws. Their key conceptual contributions were twofold: First, nations are wholly sovereign within their borders and therefore cannot be compelled to enforce foreign law in their own courts. Second, in order for international conflicts of law to work rationally, nations must exercise comity in enforcing others' laws, because it is in their mutual interest to do so.
In the United States, salient issues in the field of conflict of laws date back at least to the framing of the Constitution. There was concern, for example, about what body of law the newly created federal courts would apply when handling cases between parties from different states (a type of case
specifically assigned to the federal courts). Within the first two decades following ratification of the Constitution, over one hundred cases dealt with these issues, though the term ''conflict of laws'' was not yet used.
Alongside domestic developments relating to conflict of laws, the nineteenth century also saw the beginnings of substantial international collaboration in the field. The first international meeting on the topic took place in
Lima
Lima ( ; ), originally founded as Ciudad de Los Reyes (City of The Kings) is the capital and the largest city of Peru. It is located in the valleys of the Chillón, Rímac and Lurín Rivers, in the desert zone of the central coastal part of ...
in 1887 and 1888; delegates from five South American countries attended, but failed to produce an enforceable agreement.
The first major multilateral agreements on the topic of conflict of laws arose from the
First South American Congress of Private International Law, which was held in
Montevideo from August 1888 to February 1889.
The seven South American nations represented at the Montevideo conference agreed on eight treaties, which broadly adopted the ideas of
Friedrich Carl von Savigny
Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian.
Early life and education
Savigny was born at Frankfurt am Main, of a family recorded in the history of Lorraine, deriving its name from the cast ...
, determining applicable law on the basis of four types of factual relations (domicile, location of object, location of transaction, location of court).
Soon after, European nations gathered for a conference in
The Hague
The Hague ( ; nl, Den Haag or ) is a city and municipality of the Netherlands, situated on the west coast facing the North Sea. The Hague is the country's administrative centre and its seat of government, and while the official capital o ...
organized by
Tobias Asser
Tobias Michael Carel Asser (; 28 April 1838 – 29 July 1913) was a Dutch lawyer and legal scholar.
In 1911, he won the Nobel Peace Prize (together with Alfred Fried) for his work in the field of private international law, and in particular ...
in 1893.
This was followed by successive conferences in 1894, 1900, and 1904.
Like their counterparts in Montevideo, these conferences produced several multilateral agreements on various topics within conflict of laws. Thereafter, the pace of these meetings slowed, with the next conventions occurring in 1925 and 1928.
[van Loon at 77] The seventh meeting at The Hague occurred in 1951, at which point the sixteen involved states established a permanent institution for international collaboration on conflict-of-laws issues.
The organization is known today as the
Hague Conference on Private International Law
The Hague Conference on Private International Law (HCCH) is an intergovernmental organisation in the area of private international law (also known as ''conflict of laws''), that administers several international conventions, protocols and soft ...
(HCCH). , HCCH includes eighty-six member states.
As attention to the field became more widespread in the second half of the twentieth century, the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been de ...
began to take action to harmonize conflict of laws jurisprudence across its member states. The first of these was the
Brussels Convention
Brussels (french: Bruxelles or ; nl, Brussel ), officially the Brussels-Capital Region (All text and all but one graphic show the English name as Brussels-Capital Region.) (french: link=no, Région de Bruxelles-Capitale; nl, link=no, Bruss ...
agreed in 1968, which addressed questions of jurisdiction for cross-border cases. This was followed in 1980 by the
Rome Convention, which addressed choice-of-law rules for contract disputes within EU member states. In 2009 and 2010, respectively, the EU enacted the
Rome II Regulation
The Rome II Regulation (EC) N864/2007is a European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations. From 11 January 2009, the Rome II Regulation created a harmonised set of rules within the Euro ...
to address choice-of-law in tort cases and the
Rome III Regulation
The European Union Divorce Law Pact or Rome III Regulation, formally Council Regulation (EU) No. 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation is a regulation co ...
to address choice-of-law in divorce matters.
Jurisdiction
One of the key questions addressed within conflict of laws is the determination of when the legislature of a given jurisdiction may legislate, or the court of a given jurisdiction can properly adjudicate, regarding a matter that has extra-jurisdictional dimensions. This is known as ''jurisdiction'' (sometimes subdivided into ''adjudicative jurisdiction'', the authority to hear a certain case, and ''prescriptive jurisdiction'', the authority of a legislature to pass laws covering certain conduct). Like all aspects of conflict of laws, this question is in the first instance resolved by domestic law, which may or may not incorporate relevant international treaties or other supranational legal concepts. That said, relative to the other two main subtopics of conflicts of law (enforcement of judgements, and choice of law, which are both discussed below), the theory regarding jurisdiction has developed consistent international norms. This is perhaps because, unlike the other subtopics, jurisdiction relates to the particularly thorny question of when it is appropriate for a country to exercise its coercive power at all, rather that merely how it should do so.
There are five bases of jurisdiction generally recognized in international law. These are not mutually exclusive; an individual or an occurrence may be subject to simultaneous jurisdiction in more than one place. They are as follows:
* Territoriality—A country has jurisdiction to regulate whatever occurs within its territorial boundaries. Of all bases of jurisdiction, the territoriality principle garners the strongest consensus in international law (subject to various complexities relating to actions that did not obviously occur wholly in one country)
* Passive personality—A country has jurisdiction over an occurrence that harmed its national.
* Nationality (or active personality)—A country has jurisdiction over a wrong of which its national is the perpetrator.
* Protective—A country has jurisdiction to address threats to its own security (such as by pursuing counterfeiters of official documents)
* Universal—A country has jurisdiction over certain acts based on their intrinsic rejection by the international community (such as violent deprivations of basic human rights). This is the most controversial of the five bases of jurisdiction.
Countries have also developed bodies of law for adjudicating jurisdiction disputes between subnational entities. For example, in the United States, the
minimum contacts
Minimum contacts is a term used in the United States law of civil procedure to determine when it is appropriate for a court in one state to assert personal jurisdiction over a defendant from another state. The United States Supreme Court has decide ...
rule derived from the
Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution regulates the extent to which one state can exercise jurisdiction over people domiciled in other states, or occurrences that took place in other states.
Choice of law
Courts faced with a choice of law issue have a two-stage process:
#the court will apply the law of the forum (''
lex fori In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the '' lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition ( ...
'') 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 In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...
'') or the law of
habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute or legal entitlement. It can be contrasted with the law on domicile, traditionally used in common law juri ...
(''
lex domicilii In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...
''). (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
Status (Latin plural: ''statūs''), is a state, condition, or situation, and may refer to:
* Status (law)
** City status
** Legal status, in law
** Political status, in international law
** Small entity status, in patent law
** Status confere ...
and
capacity. The court will determine the law of the state in which land is situated (''
lex situs In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the ''lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition (1 ...
'') that will be applied to determine all questions of
title
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
. 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
The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws.
Explanation
When the jurisdiction is in dispute, one or more state laws will be relevant to the decision-making process. If the law ...
has become a more common choice.
Contracts
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
A forum selection clause (sometimes called a dispute resolution clause, choice of court clause, jurisdiction clause or an arbitration clause, depending upon its form) in a contract with a conflict of laws element allows the parties to agree tha ...
). In the EU, this is governed by the
Rome I Regulation
The Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations) is a regulation which governs the choice of law in the European Union. It is based ...
.
Choice of law clause
A choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction. An example is "This Agreem ...
s 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
The Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations) is a regulation which governs the choice of law in the European Union. It is based ...
, which may modify the contractual terms imposed by vendors.
[Rome I Regulation, Article 5-Article 8]
See also
*
A. V. Dicey
*
Conflict of interest
*''
Dicey Morris & Collins
''Dicey, Morris & Collins on the Conflict of Laws'' (often simply ''Dicey, Morris & Collins'', or even just ''Dicey & Morris'') is the leading English law textbook on the conflict of laws (). It has been described as the "gold standard" in te ...
'', an English law textbook on the conflict of laws
*
List of Hague Conventions on Private International Law
*
Place of the Relevant Intermediary Approach
*''
Microsoft Corp. v. Motorola Inc.
''Microsoft Corp. v. Motorola Inc.'', 696 F.3d 872 (9th Cir. 2012) was a United States Court of Appeals for the Ninth Circuit case about Reasonable and Non-Discriminatory (RAND) Licensing and foreign anti-suit injunction.
The case was origina ...
''
Notes
References
*
*
*
*
*
*CILE Studies (Center for International Legal Education –
University of Pittsburgh School of Law
The University of Pittsburgh School of Law (Pitt Law) was founded in 1895. It became a charter member of the Association of American Law Schools in 1900. Its primary home facility is the Barco Law Building. The school offers four degrees: Master ...
Private Law, Private International Law, and Judicial cooperation in the EU-US Relationship*
*
*
*
*
*
*
*
External links
*
ttps://web.archive.org/web/20200220033050/http://conflictoflaws.net/ CONFLICT OF LAWS .NET– News and Views in Private International Law
American Society of Comparative Law Official websiteHague Conference on Private International Lawofficial website.
*
Max Planck Institute
Max or MAX may refer to:
Animals
* Max (dog) (1983–2013), at one time purported to be the world's oldest living dog
* Max (English Springer Spaniel), the first pet dog to win the PDSA Order of Merit (animal equivalent of OBE)
* Max (gorilla) ...
for Comparative and International Private LawBritish Institute of International and Comparative LawInternational Chamber of CommerceInternational Institute for the Unification of Private LawUNIDROIT)
Private International Law, Research Guide,
Peace Palace Library
The Peace Palace Library is a collection of studies and references specializing in international law. It is located in The Hague, Netherlands, and was established to support the Permanent Court of Justice.
Description
The library is one of ...
United Nations Commission for International Trade Law*
U.S. State Departmentbr>
Private International Law Database by Chris Sprigman
*
ttps://web.archive.org/web/20071007100825/http://www.rome-convention.org/instruments/i_conv_cons_en.htm EEC Rome convention 1980br>
International & Foreign Law Community*''Republic of Argentina v NML Capital Ltd'' [2010
EWCA Civ 41 regarding a hedge fund's enforcement of claim against Argentina
{{DEFAULTSORT:Conflict Of Laws
Conflict of laws,