Procedure in conflict of laws
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In all lawsuits involving
conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a Legal case, case, Transactional law, transaction, or other occurrence that has connections to more than one jurisdiction."Conflict o ...
, questions of procedure as opposed to substance are always determined by the '' lex fori'', i.e. the law of the state in which the case is being litigated.


What issues are procedural?

This is a part of the process called characterisation. Issues identified as procedural include the following: *By initiating the action before the forum
court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
, the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
is asking for the grant of the local remedies. This will not be a problem so long as the form of the relief is broadly similar to the relief available under the '' lex causae'', i.e. the law selected under the choice of law rules. But forum courts may refuse a remedy in two situations: ::if the effect of granting the relief sought would offend against the
public policy Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...
of the forum court; ::if the effect of the relief would be so different from that available under the ''lex causae'' that it makes the right sought to be enforced a different right. For example, in
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
, the court was asked in ''Phrantzes v Argenti'' 9602 QB 19 to enforce a Greek
marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes rights and obligations between them, as well as between them and their children (if any), and b ...
dowry A dowry is a payment such as land, property, money, livestock, or a commercial asset that is paid by the bride's (woman's) family to the groom (man) or his family at the time of marriage. Dowry contrasts with the related concepts of bride price ...
agreement. Although the forum had no public policy objections and agreed that such agreements were enforceable, relief was denied because there were no local rules to calculate the amount to be paid. A different result would have been achieved if the agreement had stipulated a liquidated sum to be paid. Thus, in ''Shahnaz v Rizwan'' 9651 QB 390, a deferred mahr (dowry) was enforced as part of an ante-nuptial agreement made in
India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...
in consideration of marriage at a time when ante-nuptial agreements were not generally enforceable under English law. The judge accepted the difference between maintenance and a dowry, and enforced payment as a right '' ex contractu'' rather than as a matrimonial right. Hence, a remedy was granted to enforce a right '' in personam'', enforceable by the wife or widow against the husband or his heirs. The same result is achieved in the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, see ''Aziz v. Aziz'' 985where a New York court enforced a deferred mahr of $5,000 because the terms of the contract complied with New York's General Obligations Law. The court rejected the husband's claim that it was a matrimonial action. *The local law determines who can sue and be sued as parties to the action. The case law on this question is not very consistent. For example, the English court held in ''Banque Internationale de Commerce de Petrograd v Goukassow'' 9232 KB 682 that a dead person cannot be a party to an action even though this was possible under the ''lex causae''. However, if a foreign entity has legal personality under the law where it was established, it can be a party to English proceedings. Thus, in ''Bumper Development Corp. v Commissioner of Police for the Metropolis''
991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between Æthelred the Unready and Richard I o ...
1 WLR 1362 an Indian temple that was "little more than a pile of stones" could be a party. *All questions of
evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...
to determine the admissibility and probative value of evidence and whether a witness is competent, are dealt with under the ''lex fori'', except that presumptions, both rebuttable and irrebuttable, are usually rules of substance. In some cases, the application of the ''lex fori'' makes sense—after all, if the forum rules require legal documents to be printed in a twelve-point
font In metal typesetting, a font is a particular size, weight and style of a ''typeface'', defined as the set of fonts that share an overall design. For instance, the typeface Bauer Bodoni (shown in the figure) includes fonts " Roman" (or "regul ...
, and the choice of law state requires the same documents to be printed in a fourteen-point font, it makes little sense to require the court to determine which font size should be used in a choice of law dispute. However, many contentious cases have centred on findings that issues such as the burdens of proof, the admissibility of evidence, and statutes of limitations are procedural rather than substantive, because these rules can change the outcome of a case. *In the
Law of Contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
Article 10(c) EC Convention on the Law Applicable to Contractual Obligations (Rome 1980) provides that the assessment of
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...
is a matter for the ''lex causae''. In other cases, the cause of action will give rise to issues that are both procedural and substantive. For example, in
tort A tort is a civil wrong, other than breach of contract, 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 cri ...
questions of remoteness and causation will be determined by the ''lex causae'' whereas the quantification of damages will be determined by the ''lex fori''. *The status of statutes of limitations is usually regarded as having public policy implications, particularly where foreign periods are either very long or very short. In extreme cases, the lex fori will be applied to protect the interests of vulnerable parties, e.g. the English court held in ''Jones v Trollope Colls Cementation'', The Times, January 26, 1990, that a foreign limitation period of twelve months would be ignored because the plaintiff had spent a significant proportion of this time in hospital and had been led to believe her claim would be met. In the U.S., statutes of limitations would normally be considered procedural, but most states have enacted so-called borrowing statutes, which "borrow" the statute of limitations for the cause of action from the state in which the cause of action arose. *The ''lex fori'' determines whether a foreign judgment can be recognised and, if so, how it will be enforced, e.g. what property belonging to the
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 juris ...
may be taken to satisfy the judgment (see enforcement of foreign judgments). But in the Law of Contract, this is subject to Article 10 of the Rome Convention 1980 which provides that the applicable law governs the consequences of breach, including the quantification of damages.


References

*J H C Morris. "Law of Procedure". The Conflict of Laws. Third Edition. Stevens and Sons. London. 1984. ISBN 0-420-46890-0. Part 8, which consists of chapter 29 ("Substance and procedure"), at pages 453 to 466. *A E Anton. "Procedure". Private International Law: A treatise from the standpoint of Scots law. (Scottish Universities Law Institute). W Green & Son. Edinburgh. 1967. Reprinted 1970. Chapter 25. Pages 541 to 571. {{DEFAULTSORT:Procedure (Conflict) Conflict of laws Legal procedure