INTRODUCTION TO CONFLICT OF LAWS

INTRODUCTION TO CONFLICT OF LAWS

1. Four Classic Approaches to Solving Conflict of Laws

   1. The First Approach - Single Concepts or Principles

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  Between the 13th and 18th centuries, the Statutists sought solutions to conflicting state laws by applying simplistic theories ("uncomplicated times"). Statutes were either real, personal or mixed according to their object and each followed different rules of conflict.
  

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  The laws concerning the status and capacity of persons governed French citizens, even those residing in foreign countries. Napoleon felt that the French Civil Code was so superior that all French citizens should benefit from it wherever they were.
  
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  Mancini made further advances to the lex patriae theory.
  
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  The law of the ship's flag is similar to this concept of the law of the citizen.
  

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  Savigny broke with the Statutists and suggested that there could be a common theory of conflicts for all nations thus promoting uniformity and preventing forum shopping. It was necessary to classify legal relationships, not laws, and not by their object but rather according to their seat/place.
  
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  Four key factors/contacts determined the seat: (i) domicile of the parties; (ii) geographic location of the object or thing in dispute; (iii) place of performance of the juridical act; (iv) the forum
  
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  Savigny is the father of the multilateralists who hold that once can have a common body of conflict of law rules applicable to legal transactions in all jurisdictions
  

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  Story's theory is based on comity, the principle that one state should recognize the legitimate laws of another so that the laws of the first state will be recognized when appropriate (typically based on territory). Law of the flag can be described as an offshoot of this theory.
  

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  Concluded that no other theory is viable and that the lex fori provides virtually the only justice in conflicts cases – law of the forum.
  

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  Westlake – “proper law of the contract” = defined as the law of the country with which the contract has its most real connection.
  
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  The closest and most real connection is the basic concept today of most conflict of law legislation, national or international. As per Tetley, this is the “greatest single contribution ever to the theory and practice of conflict law.”
  
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  Boissevain v. Weil (1972, UK – Denning): “depends on the proper law of the contract… the place with which it has the most substantial connection.”
  
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  also discussed the proper law of tort, which also brought in the most significant connection with the chain of acts and consequences in the situation before us
  
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  Excerpt from s. 188 of the Restatement Second: "The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties..."
  

Important to understand that American courts do not particularly follow any contemporary conflicts theory but often just apply one theory on one occasion and another on another occasion, when it is most convenient to them.

i) Strengths and Achievements – This US revolution has led the world in development of choice of law rules in both contract and tort - notably by the Restatement Second of 1969. Has had important international effects. US conflicts theory remains open to transformation, exemplified by Rule 5 of Restatement Second which adds that conflict rules "are as open to reexamination as any other common law rules."

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  A conflicts analysis which balances the policies and interests of 'competing' governments presents a difficult if not impracticable standard – is it even a proper/possible criterion for deciding questions relating to conflicts of law problems?
  
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  Interest analysis applies equity and although equity is an important part of all law, there is a question as to whether it should be a major criterion of choice of laws or choice of jurisdiction (given, for example an air crash, where different people have signed contracts in different places – why should they get equal protection?).
  
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  Equity may be necessary, though, because the American legal system is often unfair and expensive (UK P & I Club example). The problems of American tort/personal injury law are long and complicated as compared with countries like England/Canada.
  
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  The United States uses corrective justice in its tort system to correct each case individually, which is in the end paid by private insurance. Other countries, on the other hand, settle claims by distributive justice applied equally to all of society. Large disasters, as a result, are often handled more fairly through the latter programs.
  

iii) Conclusion – While this system is very advanced, it is also very peculiar to the United States.

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  The social and legal system in the US, in particular, is corrective rather than distributive in approach. Its private insurance industry which is expected to provide the benefits to society after suit, rather than government, which in most other industrialized nations provides social services to the whole population without suit through social programs. It favors litigation, and inequalities in compensation are thus generated by the system. Because of these inequalities, many of the various forms of US conflict of law theory look to equity to solve conflict problems rather than seeking the properly applicable law.
  

2. The Second Approach - Multiple Numbered Rules (Private Conflict Codes)

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  Their text, Conflict of Laws, is the most authoritative source of English conflicts law today and carries strong international reputation and influence. Presents some rules from cases as well as alternatives. 210 rules.
  

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  James McLeod is the Canadian conflicts authority. Generalities and jurisdiction as well as specific rules for particular questions. He accepts that issues such as domicile, residence and situs are really only connecting factors. Proposes 205 rules.
  

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  The Restatement First provides 625 rules – Beale – principle of vested rights.
  
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  The Restatement Second provides the most authoritative solutions to conflict of laws in the US. Largely the work of Willis Reese, this text incorporates governmental interest analysis – 423 rules. Similar to Savigny’s legal relationship, but the relationship is the state’s who interests are such that the law of that state should apply. Theory says that court will choose the law that best reflects the needs, policies and interests of the states in question providing the law so chosen also reflects principles of certainty, predictability and uniformity, as well as providing ease of determination and application. Not the authority of law but very persuasive – referred to in Lauritzen. Done by professors.
  
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  Trying to do a third
  

3. The Third Approach - General Texts

4. The Fourth Approach - National Legislation/International Conventions

1. 
   Louisiana, 1991 arts. 3515-3549 (USA – Civil Law)
   
2. 
   Quebec, 1991 arts. 3076-3168 (Canada – Civil Law) – p.1-16 CB
   
3. 
   Switzerland, 1987, Germany, 1986, Austria, 1978 (Europe – Civil Law)
   
4. 
   Maritime Law Conflict Codes – Netherlands, 1993; China, 1993
   

The Rome Convention on Contractual Obligations is one of the most important single developments in the history of private international law in Europe or elsewhere. In particular the Convention:

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  applies uniform choice-of-law rules to contracts with very few exceptions
  
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  applies to contract conflicts in twelve states and overrides their domestic laws
  
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  applies to conflicts between different legal systems in a single state (ex: England and Scotland)
  
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  applies to conflicts involving the laws of states not party to the Convention - thus it will apply to Canadian or US contracts when they come before the courts of the signatories of the Rome Convention
  
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  applies to commercial as well as to consumer and employment contracts and contracts between non-merchants.
  
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  Art. 18 reinforces the international character of the rules and desirability of achieving uniformity in their interpretation and application, entrusting the interpretation to the Court of Justice of the E.C.
  
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  has effect outside the border of the European Union and any European nation may adopt it as well
  

Despite all the authority of the United Nations and other international bodies regulating conflict of laws, the EU has the advantage of being a political entity composed of member states who are motivated, if not bound, to ratify the conventions it prepares. The EU also has the benefit of its Court of Justice (ECJ) for purposes of interpreting conventions.

2. 
   
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