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Choice of law is a procedural stage in the litigation of a case involving the
conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad t ...
when it is necessary to reconcile the differences between the laws of different legal
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. Jur ...
s, such as
sovereign state A sovereign state or sovereign country, is a political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defined terr ...
s,
federated states A federated state (which may also be referred to as a state, a province, a region, a canton, a land, a governorate, an oblast, an emirate or a country) is a territorial and constitutional community forming part of a federation. Such states di ...
(as in the US), or
province A province is almost always an administrative division within a country or state. The term derives from the ancient Roman ''provincia'', which was the major territorial and administrative unit of the Roman Empire's territorial possessions outsi ...
s. The outcome of this process is potentially to require the courts of one
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. Jur ...
to apply the law of a different jurisdiction in
lawsuits - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil acti ...
arising from, say,
family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriage ...
,
tort 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 punishable ...
, or contract. The law which is applied is sometimes referred to as 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 la ...
."
Dépeçage In law, ''dépeçage'' is a concept within the field of conflict of laws whereby different issues within a single case are governed by the laws of different jurisdictions. In common law countries, ''dépeçage'' can be used when a single contrac ...
is an issue within choice of law.


Sequence of events in conflict cases in Common Law jurisdictions

#
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. Jur ...
. The court selected by the plaintiff must decide both whether it has the jurisdiction to hear the case and, if it has, whether another forum is more suitable (the ''
forum non conveniens ''Forum non conveniens'' (Latin for "an inconvenient forum") (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal ...
'' issue relates to the problem of
forum shopping Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so h ...
) for the disposition of the case. Naturally, a plaintiff with appropriate knowledge and finance will always commence proceedings in the court most likely to give a favourable outcome. This is called forum shopping and whether a court will accept such cases is always determined by the local law. # Recognition of foreign judgments. Even where a conflict of laws exists, the court will recognize the validity of a foreign judgment in most cases. Under U.S. law, this authority is part of the
Full Faith and Credit Clause Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." Acco ...
of the U.S. Constitution. Under international law, this authority is part of the doctrine of
comity In law, comity is "a practice among different political entities (as countries, states, or courts of different jurisdictions)" involving the " mutual recognition of legislative, executive, and judicial acts." Etymology Comity derives from the Lat ...
. The court will invoke comity by its discretion and will usually look to two factors before using its discretionary powers: did the foreign court have jurisdiction, and were fair procedures used in adjudicating the case? Under English law, it is the doctrine of
obligation An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when ther ...
. Within the European Union the Brussels Recast Regulation determines jurisdiction and recognition. #
Characterization Characterization or characterisation is the representation of persons (or other beings or creatures) in narrative and dramatic works. The term character development is sometimes used as a synonym. This representation may include direct methods l ...
. The court then allocates each aspect of the case as pleaded to its appropriate legal classification. Each such classification has its own choice of law rules but distinguishing between procedural and substantive rules requires care. The court may have adopted a rule of law which prevents it from applying any procedural law other than its own. This can include the court's own choice of law rules. A danger exists if the choice of law requires that a case be heard elsewhere due to the forum's lack of expertise in deciding an issue of foreign law. #The court then applies the relevant choice of law rules. In a few cases, usually involving family law, an
incidental question Incidental questions in private international law with respect to the problems and elements discussed below In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit ...
can arise which will complicate this process. The United States has adopted a law that almost universally eliminates incidental questions involving family law. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires states to apply the law of the "home state;" that is, the forum which originally determined custody and maintenance. A state court will only apply its own law when no parent retains a connection with the original jurisdiction and when substantial evidence is available in its forum to make a custody or maintenance determination.


Choice-of-law stage

The "traditional approach" looks to territorial factors, e.g. the domicile or
nationality Nationality is a legal identification of a person in international law, establishing the person as a subject, a ''national'', of a sovereign state. It affords the state jurisdiction over the person and affords the person the protection of the ...
of the parties, where the components comprising each cause of action occurred, where any relevant assets, whether movable or immovable, are located, etc., and chooses the law or laws that have the greatest connection to the cause(s) of action. Even though this is a very flexible system, there has been some reluctance to apply it and various "escape devices" have developed, which allow courts to apply their local laws (the ''
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 (1 ...
'') even though the disputed events took place in a different jurisdiction. The parties themselves may plead the case either to avoid invoking a foreign law or agree to the choice of law, assuming that the judge will not of his or her own motion go behind the pleadings. Their motive will be pragmatic. Full-scale conflict cases take longer and cost more to litigate. However, the courts in some states are predisposed to prefer the ''lex fori'' wherever possible. This may reflect the belief that the interests of justice will be better served if the judges apply the law with which they are most familiar, or it may reflect a more general parochialism in systems not accustomed to considering extraterritorial principles of law. One of the most common judicial strategies is to skew the characterization process. By determining that a claim is one involving a contract instead of tort, or a question of family law instead of a testamentary issue, the Court can change the choice of law rules. For example, if an employee is hired by an employer in State A, is injured due to the employer's negligence in State B, and files a lawsuit to recover for the injury in State A, the court in State A might look to the employment contract to see if it contained a clause that governed the employer's duty of care with respect to the employee. If so, the court may be able characterize the claim as a breach of the contract, instead of a tort, and apply the law of the State A either because it was the place where the contract was made (the ''
lex loci contractus In the conflict of laws, the ''lex loci contractus'' is the Latin term for "law of the place where the contract is made".''Black's Law Dictionary'' abridged Sixth Edition (1991), p. 630. Explanation When a case comes before a court and all the m ...
'') or, if it were the place where the wage or salary was to be paid, where the contract was intended to be performed (the ''
lex loci solutionis 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 ...
''). In this context, since the 1960s, the courts in the United States began developing a number of new approaches, as well as new escape devices. This reflects the number of different laws that might be relevant in any given case before an American court. There is significant interstate trade and social mobility, and with the laws of each state of the Union representing a possible opportunity for conflict, it was necessary to produce a coherent system that could be applied in the courts of all fifty states.


Renvoi

To limit the damage that would result from forum shopping, it is desirable that the same law is applied to achieve the same result no matter where the case is litigated. The system of
renvoi In conflict of laws, renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. The procedure for co ...
, which literally means "send back", is an attempt to achieve that end.


Traditional approach

The traditional approach is based on the idea that the territorial
sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the person ...
of states must be respected. For example, when an event happens in a state that gives rise to a lawsuit – if two parties are involved in an automobile accident, for example – that state in which the accident occurred provides the parties with certain "vested rights". These rights include such things as the ability of a plaintiff to file a lawsuit, the imposition of a
statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In mo ...
to prevent a
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...
from being subjected to a lawsuit after too much time has passed, limitations on recovery, and specified burdens of evidence. These so-called ''vested rights'' compete with the policy claims of other states for their laws to be applied. What follows is a generalised summary of the rules. The approach in the U.S. is rather different (see Conflict of laws in the United States).


Status

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 ...
is relevant for a wide array of issues. Self-evidently, unless the proposed litigant has legal personality, there will be no jurisdiction. It will also be relevant to
immigration Immigration is the international movement of people to a destination country of which they are not natives or where they do not possess citizenship in order to settle as permanent residents or naturalized citizens. Commuters, tourists, an ...
, entitlement to social security and similar benefits, family law, contract, etc. The choice of law rule, the law of the domicile (''
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 ( ...
'') if the forum is common law or law of
nationality Nationality is a legal identification of a person in international law, establishing the person as a subject, a ''national'', of a sovereign state. It affords the state jurisdiction over the person and affords the person the protection of the ...
(''
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
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 jur ...
if the forum is civil law, applies to determine all question of status and its legal attributes. The ''lex fori'' determines the domicile, nationality or habitual residence, and applies that law to establish an
in rem ''In rem'' jurisdiction ("power about or against 'the thing) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have '' in personam'' juri ...
set of rights and capacities. Thus, under some laws, the status of
illegitimate Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as ' ...
affects the rights of inheritance in the case of an intestacy, etc. As to
corporations A corporation is an organization—usually a group of people or a company—authorized by the state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal context) and re ...
, the choice of law rule is the law of incorporation (the '' lex incorporationis'') for all matters of capacity, validity, shareholders' rights, etc.


Contracts

The choice of law rules for contracts are more complicated than the law affecting other obligations because they depend on the express or implied intentions of the parties and their personal circumstances. For example, questions as to whether a contract is valid may depend on the capacity of the parties to enter into a contract. This could be decided by reference to the ''lex domicilii'', ''lex patriae'' or habitual residence of the parties, or for policy reasons, by reference to the ''lex loci contractus'' (where the contract was made). But, if the contract was made electronically, where the contract was actually made must first be decided either by the ''lex fori'' or the putative proper law depending on the forum rules. There may also be problems if the parties selected the place where the contract was made in the hope of evading the operation of some mandatory provisions in another relevant law. On the other hand, deciding matters relating to ''performance'' will usually depend on the ''lex loci solutionis''. Another unique characteristic of contracts is that the parties can decide which law should apply for most purposes, and memorialize that decision into the contract itself (see
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 that ...
and
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 Agreeme ...
)although not every jurisdiction will enforce such provisions. For the harmonising provisions on contractual obligations in
EU law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
, see the
Rome Convention (contract) The Convention on the Law Applicable to Contractual Obligations 1980, or the "Rome Convention", is a measure in private international law or conflict of laws which creates a common choice of law system in contracts within the European Union. The c ...
. 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 ...
constrains the choice of law for special types of contracts. With a view to the weaker parties, such as consumers, employees and insurants, special choice of law rules are laid down by articles 5-8. The most important rules for companies, mostly closing contracts with consumers, are listed in Art. 6. Art. 6 (I) defines the consumer contract as a contract where the consumer acts as a private person whereas the businessman acts for his commercial purpose. This articles also says that in absence of an explicit choice of law, a protected consumer contract is governed by the law of the consumer's habitual residence. In Art. 6 (II) the involved parties are given the possibility of a free choice of law. But the choice of law is legally void, if the consumer protection is limited by this choice.


Tort

The presumptive rule for tort is that 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 la ...
'' applies. This is the law that has the greatest relevance to the issues involved. In public policy terms, this is likely to be the law of the place where the key elements of the "wrong" were performed or occurred (the ''
lex loci delicti commissi 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 ( ...
''). As established in the case of Boys v Chaplin
969 Year 969 ( CMLXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th ...
both plaintiff and defendants were British Soldiers Residents Stationed in Malta. Having an accident in Malta the court looked at the Lex Loci relating to its dual action-ability.


Family law

As to
marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
, both formal and common law, the general rule is the ''
lex loci celebrationis 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 ...
'' determines its validity, i.e. the law of the place where the marriage is celebrated, unless the purpose of the marriage offends a public policy of the domicile/nationality/habitual residence state. Hence, some states limit the capacity of their citizens to celebrate a
monogamous Monogamy ( ) is a form of dyadic relationship in which an individual has only one partner during their lifetime. Alternately, only one partner at any one time (serial monogamy) — as compared to the various forms of non-monogamy (e.g., polyg ...
marriage to a person of the opposite biological sex, or prohibit marriage between degrees of
consanguinity Consanguinity ("blood relation", from Latin '' consanguinitas'') is the characteristic of having a kinship with another person (being descended from a common ancestor). Many jurisdictions have laws prohibiting people who are related by blood fro ...
, etc. Questions of nullity and
divorce Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...
straddle Family Law and status because the outcome of the judicial proceedings affects status and capacities, and also overlap with the more general question of when the courts of one state will recognize and enforce the judgments of another state.


Property

The rule for immovable property (called real property in common law states) is that the ''
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 ...
'' applies to all questions of title. Movable property (called personal property in common law states) claims are governed by the law of the state in which the property is located at the time the rights are supposedly created. An important distinction, however, must be made for a contract which has some incidental effect on property, both immovable and movable, such as a loan with property pledged as a collateral. If the property is incidental to the contract, then the contract is evaluated under traditional choice of law principles for a contract. If, however, the primary purpose of the contract is to transfer the property, then the entire contract will be evaluated under the law of the state where the property is located.


Trusts and succession

Where an
inter vivos Inter vivos (Latin, ''between the living'') is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer that takes effect on the death of the giver. The term is often used to describe a trust ...
or testamentary trust includes immovables, reference must be made to the ''lex situs'' on all aspects relating to title and land use. Similarly, title to movables including choses in action, should be determined by ''lex situs'', i.e. the law of place where each item is located at the time the trust is created. Once created, all questions of administration are governed by the law specified in the trust instrument. In the unlikely event that the instrument is silent, the trust would be governed by the proper law. All questions of prenuptial trusts and transfers are determined by the law of the transferor's domicile, nationality or habitual residence at the time of the marriage. All questions relating to wills (and, as an incidental question, any testamentary trusts which the will purports to create), are governed by the law of domicile, nationality or habitual residence at the time of death. Questions of title affecting immovables are determined under the ''lex situs''. Illustration: Mr. "Z" died in US leaving immovable properties in US and other immovable properties in Kilimanjaro Tanzania. "lex situs" the law applicable would be of the place where the immovable is located. that is to say those in US to be administered according to the US laws and those in Tanzania according to the laws of Tanzania.(2013)


References

{{reflist Conflict of laws