Conflict of Laws

1
Conflict of Laws

• Snježana Husinec

2

• Conflict of Laws
• or
• Private International Law
• or
• International Private Law

3
Compare the following situations

• An Englishman and woman are British citizens,
  domiciled and resident in England, went through a
  ceremony of marriage in England. Later the wife
  petitions an English court for a divorce. The
  spouses are still domiciled and resident in
  England.
• A British couple married in France, domiciled and
  resident in England at the time of marriage.
  Later on the husband petitions for divorce. At
  the time of his divorce petition his wife is
  domiciled and resident in France.

4
Conflict of Laws

• Addresses two questions
• 1)In which legal jurisdiction may a case be
  heard?
• 2)The law of which jurisdiction(s) should be
  applied to the issues in the case?

5
Conflict of Laws (in common law legal systems) is
concerned with

• - determining whether the proposed forum has
  jurisdiction to adjudicate and whether it is the
  appropriate venue for dealing with the dispute
• determining which of the competing state's laws
  are to be applied to resolve the dispute
  choice-of-law rules
• (the court first must settle these conflict of
  law questions before beginning to hear the merits
  of the case and deciding on a resolution to the
  dispute)
• - the enforcement of foreign judgments

6
Conflict of Laws

•   - concerns conflicts between persons,
  companies, corporations and other legal entities
• - conflict of laws occurs when there are
  several possible laws that could apply, and those
  laws mandate different results
• - cases of conflict of laws arise from
  differences between legal systems
• A)    in common law system
• - a branch of international law and
  interstate law that regulates all lawsuits
• involving a "foreign" law element
•  
• B)    in civil law system
• - a law branch of internal legal system
  dealing with
• 1) the determination of which state
  law is applicable to situations crossing
• out the borders of one particular
  state and involving a "foreign" element
• (collisions of law, conflict of
  laws)
• 2) the international civil procedure
  and international commercial arbitration
• (collisions of jurisdiction,
  conflict of jurisdictions).

7
Conflict of Laws / Private International Law

• Conflict of laws
• - term stems from Ulrich Huber (Netherlands)
• - nowadays used primarily in the United States,
  Canada, and, increasingly, the United Kingdom
• Private international law
• - term first used by Joseph Story (USA) in 1834
• - used in most other countries and in the UK

8
Two major streams of legal thought on the nature
of Conflict of Laws

• A) "universalism" a stream of researchers who
  regard Conflict of Laws as a part of
  International Law, claiming that its norms are
  uniform, universal and obligatory for all states
• B) "particularism a theory which maintains the
  view that each State creates its own unique norms
  of Conflict of Laws pursuing its own policy

9
Areas of law involving conflict of laws

• Law of obligations (contracts, torts)
• Property and succession (property inter vivos,
  succession, matrimonial property relations)
• Family law (marriage, divorce, children)

10
The stages in a conflict case

• 1.The court must first decide whether it has
  jurisdiction and, if so, whether it is the
  appropriate venue resolving the issue of forum
  shopping
• 2.The characterization of the cause of action
  into its component legal categories which may
  sometimes involve an incidental question
• 3. Each legal category has one or more choice of
  law rules to determine which of the competing
  laws should be applied to each issues
• 4.Application of selected laws to reach a
  judgment.
• 5.The successful party must enforce the judgment
  which will firs involve the task of securing
  cross-border recognition of the judgment.

11
Choice of law rulesCourts faced with a choice
of law issue have a two-stage process

• 1. the court will apply the law of the forum
  (lex fori) to all procedural matters
• 2. 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

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• e.g.
• -the law of nationality (lex patriae) or
  domicile (lex domicilii) will define legal status
  and capacity,
• -the law of the state in which land is
  situated (lex situs) will be applied to determine
  all questions of title,
• -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,
• (In any case PROPER LAW will bi applied!!!
• Proper law  the law which seems to have the
  closest and most real connection to the facts of
  the case, and so has the best claim to be applied
  (US  the most significant relationship test.is
  conducted)

13

• A who has a French nationality and residence in
  Germany
• B who has American nationality, domicile in
  Arizona, and residence in Austria
• C a Swiss national, owns property in Switzerland
• A corresponds with B over the internet. They
  agree the joint purchase of land in Switzerland,
  currently owned but C, but they never physically
  meet.
• They execute initial contract documents by using
  fax machines, followed by a postal exchange of
  hard copies.
• A pays his share of the deposit but, before the
  transaction is completed, B admits that although
  he has capacity to buy land under his lex
  domicilii and the law of his residence, he is too
  young to own land under Swiss law.

14
Translate the terms

• conflict of laws
• to apply applicable
• commercial arbitration
• conflict of jurisdiction
• a proposed forum
• applicable law
• an appropriate venue
• enforcement of foreign judgments
• to give rise to a litigation
• to resolve a dispute
• forum shopping
• incidental question

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Zakon o rješavanju sukoba zakona s propisima
drugih zemalja u odredenim odnosima, NN 53/91,
88/01

• Read Chapter II of this law (APPLICABLE LAW) and
  make notes about the following situations and the
  legal rules referring to the applicability of law
  to them
• 1. Custody
• 2. Succession
• 3. Marriage and divorce