Conflict of law

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Conflict of law:

Introduction: Conflict of laws (sometimes called private international law) concerns relations across different
Conflict of law
AuthorAakash saini
Published on20 November 2019
Last Updates30/05/2019
legal jurisdictions between natural persons, companies, corporations and other legal entities, their legal obligations and the appropriate forum and procedure for resolving disputes between them. Conflict of laws especially affects private international law, but may also affect domestic legal disputes e.g. determination of which state law applies in the United States, or where a contract makes incompatible reference to more than one legal framework.

An excellent description is provided in the British law book Dicey and Morris on Conflict on Laws (London: Sweet & Maxwell, 2000) "The branch of English law known as conflict of laws is that part which deals with cases having a foreign element. By a 'foreign element' is meant simply a contact with some system of law other than English law. Such a contact may exists, for example, because a contract was made or to be performed in a foreign country, or because a tort was committed there, or because property was situated there, or because the parties are not English."

Generally, conflict of laws is a set of procedural rules that determines which legal system and which jurisdictions applies to a given dispute. The rules typically apply when a legal dispute has a ‘foreign’ element such as a contract agreed to by parties located in different countries. Conflict of laws is sometimes interchangeable referred to as private international law or international private law. Whereas the term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition (England, Canada, and Australia, the United States, Kenya etc), private international law is usually used in France, Italy, Greece, and in the Spanish and Portuguese-speaking countries. In Germany (and German Speaking Countries such as Austria, Leichtenstein and Switzerland) as well as in Russia and Scotland the word international private law is used. Within the federal systems (e.g. in the United States and Australia) where legal conflicts among federal states require resolution, the term conflict of laws is preferred simply because such cases do not involve an international issue. Hence, conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state.

Defination: Conflict of law principles is a set of rules for determining which law to apply in a case over which two or more contradictory laws seem to have jurisdiction.

The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the manner in which the court resolve the conflict between those laws. The term, however, can be misleading when it refers to resolution of conflicts between competing systems rather than “conflict” itself. Conflict of laws signifies the difference between the laws of two or more jurisdictions that are applicable to a dispute in question. The results of the case depend upon the selection of the law to resolve the dispute. The conflict can be between federal and state laws, among the state laws themselves, or between the laws of different countries. The primary question that arises in the situation of conflicting laws is: which law should be used in resolving the case? Courts follow a certain process in order to determine the law it would apply in deciding a case. In legal parlance, this process is known as characterization or classification. Courts usually have two choices while determining which law to apply in the case of a conflict:

•Lex fori: When the conflict in laws pertains to a procedural matter, courts mostly go by lex fori 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 Provisions

If you look at business contracts, you'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. For example, let's say you have made an agreement with a company in California. This may give rise to a cause of action in California. However, you want to apply the laws of Texas to your contract and hence clearly specify that the contract would be governed by the laws of Texas. 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, your 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.

Under Indian Law:

In India, rules relating to Jurisdiction in action inter parties are laid down in sections 19, 20 of the code of Civil Procedure, 1908.

Section 19 is confined to suit for compensation for wrongs to person or movables. That section reads as:

Suits for compensation for wrongs to person or movable Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

This section confined to torts committed in India an d to defendants residing in India. It does not include within its ambit the suits in respect of foreign torts. Such cases are covered by section 20, which overlaps this section. This section deals with inter parties suits. This section reads as follows:

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction

(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) Any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises.

The explanation to this section says that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Thus, it is submitted that Indian Courts should not construe strictly the requirement of residence in private international law cases, nor should it exercise jurisdiction over persons on whom process has not be served just because cause of action arises within jurisdiction. The Indian rules of Private International Law are identical to the rules of English Private International Law. Submission to the Court. Under English Law, A person may submit to the jurisdiction of the Court either under an express agreement or by conduct. If a person to the court submits to the jurisdiction then the court gets the jurisdiction to try the action and a decree or an order is passed in such action will be valid internationally. The submission to jurisdiction cannot bring those cases within the jurisdiction, which are otherwise outside the jurisdiction. A person may submit to the court either by his/her conduct (conduct which is voluntary) or by a contract (by way of express stipulation in the contract).

Where as the Indian Law of submission, it closely follows English Law. If a person is outside the jurisdiction, the court will have the jurisdiction on him only if he submits to the jurisdiction of the court. In case, the foreign defendant does not submit to the jurisdiction of the court, then the judgment delivered in his absence would be null and void. Mere appearance in the court amounts to submission.

Conflict of law are private international law both terms are used interchangeably concerns relations across different legal jurisdiction between person and sometimes also companies corporations and other legal entities courts faced with the choice of laws you have have two sages process one the court will apply the law of the forum lex fori to all procedural matters including self evidently the choice of law rules and it counts the factors that connect or link the legal issues to the laws of potentially states and applies the laws that have the greatest connection Other Connecting Factors

Lex Fori = Law of the Court the trial is taking place

Lex Contract Law governing the Contract

Lex Loci Delicti Law of the place where the Tort was committed

Lex Loci Celebrationis Law of the place where the marriage is celebrated

Fundamental Concepts and Issues

The notorious case of Ogden v Ogden

Domiciled Frenchman (19) married domiciled English woman in England Frenchman got annulment done in French Court. Why? French Law No marriage of minor valid without parental consent; Frenchman didn't have it! English woman then married Englishman in England 2nd "Husband' wanted marriage annulled, alleging woman was still married to Frenchman!

Two Connecting Factors

A. The purported husband was domiciled in France

B. The marriage was solemnized in England

The Effect

Court of Appeal held that the French rule was only Formal and not

Essential: Therefore, 1st marriage was valid in the eyes of the English Court Annulment of 2nd marriage allowed. Outcome she was married to neither considered to be married to Frenchman in England and an Englishman in France.

What's the basis for Characterization?

LEX FORI: Where application of Local Law takes place; Justification of usurpation by Foreign Law is allowed, no application of Local Law

Problems : May result in adverse outcomes like Ogden v Ogden May be an issue which Local Law does not know

De Nichols v Curlier


Where application of the appropriate Foreign Law takes place

Widow should not get it!

Why? Full effect to English Law conflict rule, that in relation to succession Greek Law should apply Widow should get it, Why? Full effect to English Law conflict rule that, validity of marriage should be that of English Law should apply


Schwebel v Ungar

Lawrence v Lawrence

Renvoi In the latter instance - it may refer back to the 1st case, Arises whenever a rule of the Conflict of Laws refers to the 'Law' of another country; Does this refer to only the Local Law of that country OR to its Laws on Conflict of Laws as well.

Approaches taken by Court Internal Law Solution

Applies the Domestic rule of the country in the manner applicable to its citizens, without regard for any other fact

This method requires proof of the Domestic Law of the country but not of its choice of

Rules :Partial or Single Renvoi Theory

Known as 'Accepting the Renvoi

The local Court accepts the reference back from the Foreign Law and apply the Domestic Law Total or Double Renvoi

The Court would decide the same way the Foreign Court would; including

"Law' and its own Conflict of Law rules.