GENERAL CONFLICT OF LAWS THEORY

GENERAL CONFLICT OF LAWS THEORY

Any conflict must deal with these three problems. E.g., I am going to drive you to NY in my car and you are going to buy the gas – I have an accident with the car in NY

1. 
   Choice of Law ~ What law applies? Do you sue under Quebec law or under NY law?
   
2. 
   Choice of Jurisdiction ~ Where do you sue? Do you sue in Quebec or do you sue in NY?
   
3. 
   Recognition of Enforcement ~ How do you get the judgment recognized? Assume that case is brought in NY, how would you go about enforcing the judgment in Canada (Quebec)?
   

1. A Methodology – The Fifth Approach

• 
  Rejection of single rules or single themes or multiple, all-embracing rules.
  
• 
  Rejection of the distinction based on procedure and substance – only formalities of the court are of the lex fori but foreign remedies, time limitations, presumptions, etc. may be recognized as soon as their proper law has been established
  
• 
  Rejection of the distinction based on right and remedy
  
• 
  Rejection of renvoi
  
• 
  International public order/public policy and mandatory rules are defined.
  
• 
  Public order/policy and mandatory rules are connected to, and form part of, the theory of evasion of the law/fraude a la loi.
  
• 
  Public order/public policy is distinguished from interest analysis and equity
  
• 
  Must understand the alternative consequences of the choice of law faced in each conflict case.
  
• 
  Express choice of law in contract must be bona fide and legal otherwise turn to the most significant relationship or closest or most real connection – implied choice ignored.
  
• 
  Depeçage is used, but usually to divide the problem into many parts rather than two (example of collision or air crash where many contracts or torts or ancillaries are involved).
  
• 
  The properly applicable law of the tort or contract is sought in every case, through the methodology.
  
• 
  The use of forum non conveniens is emphasized as a possible final step in the methodology
  

2. Quick Processing of a Choice of Law Problem

1. 
   Describe the facts of the conflict problem (basic step which is often forgotten)
   

2. 
   Characterize the conflict: (this is done by the lex fori)
   

• 
  choice of law
  
• 
  choice of jurisdiction
  
• 
  recognition of a foreign judgment
  
• 
  a multiple of the above
  

B. Is it a question of?:

• 
  Contract
  
• 
  Tort (delict)
  
• 
  Ancillary(e.g. damages)
  
• 
  a multiple of the above
  

C. What laws of what state are involved?

3. 
   Decide if the forum court has apparent or initial jurisdiction over the subject matter, and whether that subject matter is within the court’s territorial authority.
   

4. 
   Apply the forum’s conflict rules, including applicable international conflict of law conventions (Rome Convention). Also apply specific conflict rules of the forum (ex: s.275 of Canada Shipping Act which calls for application of the law of the ship’s port of registry to matters relating to the ship and crew, absent a specific provision in the statute)
   

5. 
   Renvoi is rejected (Art. 15 of Rome Convention)
   

6. 
   Look at the general content of the foreign law(s) and the law of the forum. Understand the alternative applicable laws and the different consequences of applying them (American contribution to conflict)
   

7. 
   Obligatory forum court statutes – apply any applicable choice of law directive found in the statutes of the forum when these statutes are obligatory in the forum court (e.g., UK version of the 1976 Limitation of Liability for Maritime Claims Convention – imposes on any limitation proceeding whatsoever taken before an appropriate UK court)
   

If there is an obligatory forum court statute, the rest of the methodology does not need to be followed except for forum non conveniens. This should be invoked if the application of the obligatory forum court law results in an absurdity or incongruity (e.g., suit in UK to limit liability between two US ships colliding in US waters – should stay the suit)

8. 
   Apply the lex fori (law of the forum) in respect to formalities of the court.
   

9. 
   Look for connecting factors (contacts) – ship registry, place of tort, place of contract, domicile or place of business of the parties, Lauritzen, Rhoditis and the 8 factors listed in these cases. With flags of convenience – look at the place of business of the actual ship operating company and lift the corporate veil to discover the genuine contact.
   

10. 
    General Rule – The properly applicable law of the contract or tort is the law with which the contract or tort has its closest and most real connection (or most significant relationship), based on the connecting factors.
    

11. 
    Look for exceptions:
    

1. 
   Contract – express choice of law, if bona fide (freely made, equal parties) and legal (essentially and formally valid under proper law), will override closest and most real connection. If no express choice or it is not valid, go to the closest and most real connection. Implied choice is to be considered merely as another contact when determining the closest and most real connection. (Vita Food Products)
   
2. 
   Contract and Tort – where the international public order/policy of the forum or the domestic public order/policy of the putative proper law has been contravened.
   
3. 
   Contract and Tort—where a mandatory rule of the applicable law has been contravened (e.g., Hague/Visby rules art.10; US Carriage of Goods by Sea Act).
   
4. 
   Contract – where there has been evasion of the law (fraude a la loi) of public order/policy or of a mandatory rule.
   

12. 
    Choose the properly applicable law – law that has closest and most real connection in light of the above.
    

13. 
    Solve accessory questions by applying the whole methodology again—time limitations, presumptions, cross defenses, burden of proof.
    

14. 
    Solve additional principal questions by applying the methodology again—depecage – division into more then 2. In collision at sea, there is not one properly applicable law, but many and each must be determined by methodology: a) law of responsibility between the ships, b) law of damages, including pure economic loss, c) law of contract between passengers on one ship and that ship, d) law between the cargo on one ship and that ship, e) law applicable between cargo and passengers on one ship and the other ship, f) law of the right to limit liability of each ship-owner, g) law of the calculation of the limitation fund of each ship, h) law of the distributing and marshalling of the fund. Each of the above has a proper law, and each must be determined by the methodology (Titanic decision is in error for trying to find only one or two laws)
    

15. 
    Decide if the forum court, in light of the chosen law, has jurisdiction, or if there is forum non conveniens. In the case where the forum court is not comfortable apply foreign law, then it is better to stay the suit conditionally.
    

In Germany, the constitution says that the court must hear the case – unhappy about FNC.

3. 
   
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