Private International Law – Prof. Walsh Summer 2005


Part Three – Choice of Applicable Law



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Part Three – Choice of Applicable Law

A. Choice of Law Methodology

Characterization


Choice of law is the exercise of determining what the applicable law is to the case at hand.
Historically, the western legal tradition has had choice of law provisions since medieval Italian times. It came from trade between nearby city-states with significant variations in law. The Statutists (in France) then came up with the classification of laws into real rules and personal rules. Real rules dealt with property. Personal rules related to the status and rights of persons.
For Real rules, the law of the territory within which the property happened to be was applicable. For Personal rules, the applicable law was that of the sovereign to which that person owed allegiance. The citizens of another country carry their own (personal) laws with them. This had a lot to do with states’ rights and reciprocal respect of these. Obviously, the distinctions have never been clear cut. A contract between persons for services, for example, involves real and personal elements. It was also never intended to be a permanent, workable system.
This system evolved into the vested rights theory. This is still related to territoriality and sovereignty. It came about from an idea of trying to find the appropriate “seat” for adjudication. This involved classifying the dispute. If it was delictual, then it was the place of the fault that mattered. So, the challenge was to devise a methodology to choose the “seat” and send the dispute to be tried there. This failed as well.
Out of this came the idea of comity. This is reciprocal respect that allows and expects one state to be willing to apply another’s rules as appropriate to the situation or choice of the parties. Comity, as prerequisite as it is to choice of law, does nothing to decide how the applicable law should be chosen. This is instead done through justice, both substantive and procedural. International order also plays into the justice query. Should each country have its own choice of law rules? In some cases, following a workable compromise is part of the justice sought.
Tort seems to be the exception to the general trend to uniformity in choice of law internationally.
In each area of law we are looking for a particular “connecting factor” that leads to a particular legal system on the particular facts. Usually, there might still be different laws that could be applied from the connector. However, some are specifically geared to only one system (e.g. domicile). There are also alternative reference rules (sometimes called “validating” rules). They give several connecting factors and therefore chances for something to be validated
E.g. Marriage - CCQ

  1. essential validity  domicile (sole connecting factor)

  2. formal validity  place of solemnization, domicile, or nationality (alternative “validating factors).




§ 2. —  Marriage
3088.  Marriage is governed with respect to its essential validity by the law applicable to the status of each of the intended spouses.
With respect to its formal validity, it is governed by the law of the place of its solemnization or by the law of the country of domicile or of nationality of one of the spouses.
3089.  The effects of marriage, particularly, those which are binding on all spouses regardless of their matrimonial regime, are subject to the law of the domicile of the spouses.
Where the spouses are domiciled in different countries, the applicable law is the law of their common residence or, failing that, the law of their last common residence or, failing that, the law of the place of solemnization of the marriage.

So, what is left to decide is when we use formal vs. essential validity.


For example, can I give consent to marriage through a proxy stand-in at the ceremony? This would be a question of form. Whether or not the consent was valid (i.e. not duress) would be an issue of essential validity.
Historically, there was only one choice of law for marriage, the place of celebration. The CCQ preserves this for civil unions, but no longer for marriage. There used to be two categories in family law, blood relation and spousal relation. Blood relation led to incapacity to marry. In England there were also laws that prohibited marrying a deceased spouse’s relative. People in England then just went to Scotland to get married and then came back. The House of Lords eventually responded by changing the essential validity rule to domicile (much like the CCQ) to preserve its own order.
Characterization is made according to your own legal categories. It is the law of the forum of adjudication (lex forum). CCQ 3078
3078.  Characterization is made according to the legal system of the court seised of the matter; however, characterization of property as movable or immovable is made according to the law of the place where it is situated.
Where a legal institution is unknown to the court or known to it under a different designation or with a different content, foreign law may be taken into account.
Example: A mobile home in Texas is to be inherited. Is it the law of the forum? Maybe, but the result will depend on whether it is moveable or immoveable. Moveable  use Arkansas law where the inheritor is domiciled. Immoveable  use Texas law where the mobile home is situated.
Example: A marriage was, by Quebec CCQ, governed by the law of Ruritania where the age of capacity is 21 years and the parties are only 17 years old. However, Ruritania refers marriages to the law of nationality. These are Swiss parties where the age requirement is 16. This subsequent reference to the law of a third (or fourth, or fifth…) country is referred to as renvoi.

Renvoi



3080.  Where, under the provisions of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governing conflict of laws.

  • Quebec does not generally accept renvoi. It will not have a reference to a foreign set of laws redirected due to the other country’s choice of law rules.

  • Quebec courts could use a renvoi approach if they took their redirecting laws as internal and not necessarily “conflict of laws” rules. However, there are problems with this that have led them to avoid renvoi.

  1. Renvoi can lead to recursive redirection. Ruritania could direct by nationality to Switzerland and Switzerland could direct it straight back to Ruritania. In order to figure this out (let alone solve it) you would have to also know whether Ruritania and Switzerland have renvoi or just internal law referencing. If everyone uses renvoi, we then will often get this international ping-pong situation. So, instead, most countries have rejected renvoi.

  2. Renvoi amounts to an abdication of the policy that led to the choice of connecting factor in the law. Quebec had chosen domicile as the connecting factor. If renvoi switches the factor to nationality, the policy has also been chosen against and made meaningless.

  • Why would you prefer domicile over nationality? Practically speaking, domicile is more likely to supply the appropriate connection.

  • In order for the rules of choice of law to be engaged in a CML court, the parties must plead the applicability of foreign law (and provide evidence and experts as to the content and interpretation of foreign law). This is true even between provinces.



Procedure



3132.  Procedure is governed by the law of the court seised of the matter.

  • Procedure does not generally transfer along with the foreign law. Just because a Quebec court is seized with a NY tort law action does not mean that Quebec will convoke a jury. This then leads to the question of what is substance vs. procedure.



3131.  Prescription is governed by the law applicable to the merits of the dispute.

  • Prescription has been fuzzy in this respect, but now it is generally thought of as substantive.

3130.  Evidence is governed by the law applicable to the merits of the dispute, subject to any rules of the court seised of the matter which are more favourable to the establishment of evidence.

  • Evidence is treated in a hybrid fashion.

  • Why? The traditional English CML position is that you need to plead and prove foreign law to rely on it. This means that if local evidence law is restrictive, you might not be able to satisfy the burden of proof of applicability of foreign law that you just proved. So, some sort of exception is needed not to wind up in this paradox.

  • This traditional English CML position that you prove foreign law applicability in order to rely on it also leads to the option not to apply foreign law if it isn’t pleaded (as opposed to the more mandatory CVL approach). This might be done because it is not in the best interests of the client to have the foreign law applied. The foreign law might also be the same (or lead to the same result) or close enough that it is not worth the effort and expense involved in pleading it. The foreign law might yet also be unpredictable because of conflicting decisions and therefore worth avoiding.

  • The issue of cost is less important in the continental European system because the court can itself order the evidence and experts instead of leaving that burden on the parties.

  • The one exception to the CML adversarial approach in Canada was the Federal Court in an admiralty law matter. However, this was more recently declared contrary to the Charter by the SCC (Yep, the entire continental European approach was declared contrary to fundamental justice, go figure!).

  • The CML thus also makes the same distinction as CVL for procedure (lex fora). Evidence is in this circumstance considered procedure and lex forum applies.





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