Conflict of law

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The word conflict of laws , also called the Private International Law signifies the difference between the laws of two or more jurisdictions that are applicable to a dispute . It is actually concerned with relations across different legal jurisdictions between natural person , companies , corporations and other legal entities, their legal entities ,their legal obligations and appropriate procedure for resolving disputes between them. The “law of the conflict of laws” pertains to the resolution of problems resulting from such diversity of thecourts and the law. The concept is largely subject to agreements between individuals.

Conflict of law
Published on04/02/2019
EditorFaiyaz Khalid
Last Updates04/02/2019


Conflict of laws is a set of procedural rules that determine which legal system and which jurisdiction applies to a given dispute .As per DUHAIME’S law dictionary , “conflict of laws is a specialized branch of law which resolves cases which have an element of conflicting foreign law ” (i.e contact with some system of foreign law ). Each country’s legal system reflects its society’s values . As a result ,national laws and the structure of domestic judicial systems vary considerably from country to country . Nevertheless , many kinds of legal situation such as torts , marriage , transactions , often are not confined to a single country or to a single jurisdiction within a country . So, conflict of laws describes the body of law of each country that is designed to resolve problems arising from the difference between the legal systems.


CONFLICT OF LAWS is a part of law which comes into operation when legally confronted with a foreign element. The subject aims at three things . The aims are as follows – 1.Recognition and enforcement of foreign judgement.

if a dispute has been litigated in another country ; if it is applicable in current jurisdiction .

2. Establishing jurisdiction

setting out conditions in which a court is competent to hear an action .

3. Choice of Law

by what law the rights of the parties are to be ascertained “ the applicable law ”.

4. Harmony of the decisions.

The process of the following is as follows –

Establishing the jurisdiction , characterizing / classifying the exact cause of the action and at last ,selection of the legal system that governs the matter.

Conflicts law must address three principal questions. First, when a legal problem touches upon more than one country, it must be determined which court has jurisdiction to adjudicate the matter. Second, once a court has taken jurisdiction, it must decide what law it should apply to the question before it. The rules governing the court may direct it to apply its own law or call for the application of the law of another country. Third, assuming that the court ultimately renders a judgment in favour of the plaintiff, conflicts law must address the enforcement of the judgment. Governing law clauses: “without regard to conflict of law” ... First, express exclusion of conflict of laws principles prohibits a future argument from either party that conflict of laws principles require a court to apply the laws of a jurisdiction other than the express jurisdiction of governing law .this is the main provision of the concept.


- does the forum in the question have jurisdiction to deal with the matter . - if it has jurisdiction , what law shall be chosen to apply to the matter ? - how will judgements of foreign courts be recognized and enforced ?

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


Private international law has been recognisedas an aspect of municipal law.The main sources from where the concept conflict of laws have emerged are as follows –

National legislation
Customary Laws { unofficial laws or the long established customs /standards of community }
The decision of national courts – the decision of the national courts plays a important as source of the concept of conflict of laws.
Treaties ( agreement under international law )
Uniform laws ( unofficial set of laws )
European union ( EU )legislation
writings of jurists
Law books [ containing information regarding a particular topic ]
Journals ( law journals focusing on legal issues )
STATUES [ formal written enactment of the legislative body/ authority that governs the country.]
Law reports ( containing judicial opinions ) Etc.

Important Factors or the Connecting Factors that constitute the concept are –

- LEX LOCI CONTRACTUS : the law of the places where the contract is made.

- LEX LOCI SOLUTIONIS : the law of the place where the contract is to be performed .

-LEX PARTIES : the law of nationality.

-LEX SITUS : the law of the place where the property is situated .

-LEX LOCI CELEBRATIONIS : the law of the place where marriage was celebrated .


The concept of conflict of laws or the private international law is very restricted . It comes into operation whenever the court faces the problem of dispute having foreign element.So , the presence of the “foreign element” plays a important role in the functioning of the concept , without it ,the concept does not work . So, the scope of the concept is very limited .

Within the local federal systems , where intestate legal conflicts require resolution [ US ], the term “conflict of laws “ is preffered.It is because such cases are not an international issue.


Conflicts law is a part of national legal systems and is not codified in a systematic way at the supranational or international level. Nevertheless, some international treaties have unified particular areas of substantive and conflicts law with respect to the participating states. When a treatyprovides uniform rules of substantive law—as does the United NationsConvention on Contracts for the International Sale of Goods (1980)—it may displace national law, rendering the rules of conflicts law obsolete. In contrast, when an international treaty unifies conflicts law, substantive differences between national laws continue to exist, but the uniform rules provide a way to bridge them. However, conventions exist in relatively few areas of substantive law and conflicts law; also, the number of states participating in them is relatively small, and the interpretation and application of international treaties remain matters for the courts of the individual participating states. A notable exception was the Convention on the Law Applicable to Contractual Obligations (1980), commonly known as the Rome Convention, which applied in the member states of the European Union (EU) and whose interpretation lay within the scope of the European Court of Justice[ ECJ ] upon reference from national courts. The European union possesses lawmaking powers that enable it to establish uniform rules of substantive law, thereby displacing previous national law and eliminating conflicts. In 2008 the European union adopted the Rome I Regulation, which transformed the Rome Convention into binding European union law, and promulgated the Rome II Regulation, which provided rules for determining the applicable law in cases of non - contractual obligations.


In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lexfori. The case becomes more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties' nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage.

Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when married couplesenter a property agreement (agreement for the division of property at the termination of the marriage), stringent requirements are imposed, including notarization, witnesses, special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be "so ordered" by a judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, free will , lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context.



LEX LORI Courts usually have two choices while determining which law to apply in the case of a conflict:

Lexfori: When the conflict in laws pertains to a procedural matter, courts mostly go by lexfori or the law of the forum

Lex loci: When the conflict in laws pertains to a substantive matter, courts mostly go by lex loci or the law of the place where the cause of action arose.

Conflict of laws in 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). In England and the EU, this is governed by the Rome I Regulation. Choice of law clauses 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 ,which may modify the contractual terms imposed by vendors. If we look at business contracts , we'll find that most of them contain a clause in the miscellaneous section, which either excludes the principles of conflict of laws or specify the conflict of laws principles of a certain state to govern the contract. This provision is usually made to interpret the agreement outside of the state where the cause of action has occurred.

Now, most of the states have a law saying that the state where the cause of action occurs will have a jurisdiction over the dispute. Due to this, our contract may be governed by the laws of California despite your express intention to the contrary. To avoid such unintended hardship, contracts usually contain an exclusion clause to expressly nullify the provisions of conflict of laws.


The conflict of laws or the Private international law is a type of international law. ( it is the law regulating the relations between the nations )

It is actually that part of the national law of a country that establishes rules for dealing with cases having foreign element . There are no types of conflict of laws.Hence , it can not be categorized.

The STAGES are

1. The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of forum shopping.

2. The next step is the characterization of the cause of action into its component legal categories which may sometimes involve an incidental question (also note the distinction between procedural and substantive laws).

3. Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue. A key element in this may be the rules on renvoi.

4. Once it has been decided which laws to apply, those laws must be proved before the forum court and applied to reach a judgment.

5. The successful party must then enforce the judgment, which will first involve the task of securing cross-border recognition of the judgment.


There are 3 branches of conflict of laws . These are as follows –

(a) Jurisdiction –Deals with the power of legal courts to sit in judgement of a person or thing. To properly employ jurisdiction , courts 'needs to be adequately connected to a problem so they can satisfy both constitutional and statutory requirements .

(b) Choice of law – Legal courts must choose the legal rules that will control court proceedings when a legal problem involves more than one state .It is the law being applied to resolve the dispute .

(c) Foreign judgements – A judgement in favour of a defendant doesn’t mean an end to the legal problem . The plaintiff who lost the case might decide to sue in a new jurisdiction , which will prompt the winning defendant to use a win in the first case as a defence in the second case.

All branches have their importance in the concept of conflict of laws.


The first instances of conflict of laws can be traced to Roman law, where parties from foreign countries would go before a praetor perigrinus in Rome to plead their case. The praetor perigrinus would often choose to apply the law native to the foreign parties rather than Roman law.

The birth of the modern conflict of laws is generally considered to have occurred at Northern ITALY of the late Middle Ages and, in particular, at trading cities such as Genoa, Pisa, and Venice. The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of statuta, whereby certain city laws would be considered as statutapersonalia "following" the person to wherever the action took place, and other city laws would be considered as statutarealia, resulting in application of the law of the city where the action under dispute was located (cf. lexreisitae).

The modern field of conflicts emerged in the United States during the nineteenth century, with the publishing of Joseph Story's Treatise on the Conflict of Laws ,in 1834. Story's work had a great influence on the subsequent development of the field in England, such as those written by A.V. Dicey. Much of the English law then became the basis for conflict of laws for most commonwealth countries. Classic theories of conflicts law were territorially oriented. The German jurist and legal scholar Friedrich Karl von Savigny (1779–1861) sought to identify the law where, “according to its nature,” the legal problem or relationship had its “seat.” Anglo-American law also sought the territorially applicable law because, in the view of the American legal scholar Joseph Beale (1861–1943), whose thoughts shaped much of American conflict-of-laws theory in the first half of the 20th century, that is where the rights and obligations of the parties “vested.” This vested-rights doctrine maintained that, once a right was created in one locale, its existence should be recognized everywhere. Classic theories of conflicts law used a number of connecting factors to determine the territorially applicable law. In 1938, the Supreme Court ruled that each federal court must apply the conflict of laws rules of the state in which it sits.


-Schwebel v Ungar [1964] 48 DLR (2d) 644

Supreme court of Canada

In this case ,a Jewish husband and wife, domiciled in Hungary married in Hungary. While they were emigrating to Israel, they found themselves in Italy and the husband divorced his wife by get (divorce document in Jewish religious law). Under the laws of Hungary (their lexdomicilii) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous.

-Lawrence v Lawrence (1985) Fam 106

In Lawrence v Lawrence [1985] Fam 106 the English Court of Appeal was asked by the second husband to rule on the validity of a potentially bigamous marriage. The wife first married in Brazil and then divorced the husband in Nevada (this was not recognised in Brazil) and immediately married the second husband in Nevada. The two laws were the wife's lexdomicilii (her domicile was still Brazil) to which English choice of law rules referred her capacity to marry (under Brazilian law she lacked capacity to marry the second husband) and the validity of the second marriage which was determined under the lex loci celebrationis. The case was decided by characterising the case as one of divorce recognition rather than capacity to marry.

Maharanee of Baroda v. Wildenstein (1972)

In this case, the plaintiff, a French resident, purchased a painting from the defendant, an international art dealer also resident in France. When Maharanee discovered the painting was probably not by Boucher, she commenced an action for rescission of the contract of sale by serving a writ on the defendant while he was on a brief visit to England . She wished to sue in England because there might be problems in having her expert evidence admitted in France.The problem: should an English court exercise jurisdiction to hear a case that involved only the most tenuous connection with England .


In this case, appellant (Narasimha) married to respondent (Venkata) in Tirupati, India as per Hindu law in 1975. The couple last resided together in New Orleans and then appellant moved to USA. Later, in 1978, appellant filed a petition for dissolution of marriage in the Missouri, USA and obtained the decree for irrevocable breakdown of marriage by technically satisfying the requirement of residence of 90 days in the State of Missouri, USA. The wife had clearly stated that she did not submit to the jurisdiction of the Missouri Court. Appellant married other women and hence, respondent filed a criminal complaint against the appellant for bigamy. The learned Magistrate discharged the appellant in view of the decree for dissolution of marriage passed by foreign court. But High Court in appeal, reversed the order on the ground that Photostat copy of the decree is not admissible in evidence and thereof, resultantly, appellant filed an application before the Hon’ble Supreme Court for discharge against the order of the High Court. The case is regarding the matrimonial issue .



The concept of conflict of laws is different in different countries. In people’s “Republic of China”the area of conflict of laws has undergone fundamental development in past three decades and the most recent changes in 2010s , regarding both jurisdiction and choice of law rules ,mark the establishment of modern Chinese conflicts system. In “European Union” , all major jurisdictional matters are regulated under Brussels Regime, while in “USA” , conflict of laws is the field of procedural laws dealing with the choice of law rules when a legal action implicates the substantive laws of more than one jurisdiction and a court must determine which law is most appropriate to resolve the action. In UNITED ARAB EMIRATES {UAE}, the conflict law rules has not developed since 1985. The rules have been adopted and since adoption , they aren’t developed . In “UK” , the conflict of laws is slowly being changed , which is due to Brussels Convention and the new council regulation 44/2001 because jurisdiction is being limited for domestic systems and the introduction of regulations on areas such as protection of the individual of in personam contracts . In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to be made on an ad hoc basis, with such choice of law rules as have been developed embedded into each subject area of private law and tending to favor the application of the lexfori or local law. In states with a more mature system, the set of Conflict rules stands apart from the local private civil law and adopts a more international point of view both in its terminology and concepts. For example, in the European Union, all major jurisdictional matters are regulated under the Brussels Regime. European choice-of-law methodology has undergone similar changes, both in the law of individual European states and within the EU—in the latter first as a result of the Rome Convention and more recently as the result of EU legislation. In tort the EU’s Rome II Regulation contains specific rules for a few torts but in general calls for the application of the law of the place of injury, with exceptions in favour of the law of the parties’ common habitual residence and, as an alternative, of a more closely connected law. In contract the Rome I Regulation also provides specific choice-of-law rules for a number of contract types—for example, seller’s law for contracts for the sale of goods in the absence of a contrary party stipulation. In so doing, it translates the preceding Rome Convention’s reference to the law of the party rendering the “characteristic performance” (e.g., selling the goods, providing the service) into concrete rules. The Rome Convention’s underlying policy—application of the most closely connected law—becomes the default rule when no specific rule applies. The Rome I Regulation also provides special rules for consumer, insurance, and employment contracts.In many countries around the world, including many that are civil-law oriented, recent legislation similarly has made the determination of the applicable law more flexible. Many codificationsno longer make reference to a single governing law in tort but also give weight to such alternativesas the parties’ common domicile and other relevant factors. In “INDIA”, the concept the concept works in a very sound manner .