Knowledge (XXG)

Choice of law

Source 📝

575:
common judicial strategies is to skew the characterization process. By determining that a claim is one involving a contract instead of tort, or a question of family law instead of a testamentary issue, the Court can change the choice of law rules. For example, if an employee is hired by an employer in State A, is injured due to the employer's negligence in State B, and files a lawsuit to recover for the injury in State A, the court in State A might look to the employment contract to see if it contained a clause that governed the employer's duty of care with respect to the employee. If so, the court may be able characterize the claim as a breach of the contract, instead of a tort, and apply the law of the State A either because it was the place where the contract was made (the
783:
Art. 6 (I) defines the consumer contract as a contract where the consumer acts as a private person whereas the businessman acts for his commercial purpose. This articles also says that in absence of an explicit choice of law, a protected consumer contract is governed by the law of the consumer's habitual residence. In Art. 6 (II) the involved parties are given the possibility of a free choice of law. But the choice of law is legally void, if the
570:) even though the disputed events took place in a different jurisdiction. The parties themselves may plead the case either to avoid invoking a foreign law or agree to the choice of law, assuming that the judge will not of his or her own motion go behind the pleadings. Their motive will be pragmatic. Full-scale conflict cases take longer and cost more to litigate. However, the courts in some states are predisposed to prefer the 889:
incidental effect on property, both immovable and movable, such as a loan with property pledged as a collateral. If the property is incidental to the contract, then the contract is evaluated under traditional choice of law principles for a contract. If, however, the primary purpose of the contract is to transfer the property, then the entire contract will be evaluated under the law of the state where the property is located.
937:
Illustration: Mr. "Z" died in US leaving immovable properties in US and other immovable properties in Kilimanjaro Tanzania. "lex situs" the law applicable would be of the place where the immovable is located. that is to say those in US to be administered according to the US laws and those in Tanzania
888:
applies to all questions of title. Movable property (called personal property in common law states) claims are governed by the law of the state in which the property is located at the time the rights are supposedly created. An important distinction, however, must be made for a contract which has some
782:
constrains the choice of law for special types of contracts. With a view to the weaker parties, such as consumers, employees and insurants, special choice of law rules are laid down by articles 5-8. The most important rules for companies, mostly closing contracts with consumers, are listed in Art. 6.
545:
can arise which will complicate this process. The United States has adopted a law that almost universally eliminates incidental questions involving family law. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) requires states to apply the law of the "home state;" that is, the forum
615:
of states must be respected. For example, when an event happens in a state that gives rise to a lawsuit – if two parties are involved in an automobile accident, for example – that state in which the accident occurred provides the parties with certain "vested rights". These rights include such things
590:
In this context, since the 1960s, the courts in the United States began developing a number of new approaches, as well as new escape devices. This reflects the number of different laws that might be relevant in any given case before an American court. There is significant interstate trade and social
574:
wherever possible. This may reflect the belief that the interests of justice will be better served if the judges apply the law with which they are most familiar, or it may reflect a more general parochialism in systems not accustomed to considering extraterritorial principles of law. One of the most
533:
and substantive rules requires care. The court may have adopted a rule of law which prevents it from applying any procedural law other than its own. This can include the court's own choice of law rules. A danger exists if the choice of law requires that a case be heard elsewhere due to the forum's
563:
of the parties, where the components comprising each cause of action occurred, where any relevant assets, whether movable or immovable, are located, etc., and chooses the law or laws that have the greatest connection to the cause(s) of action. Even though this is a very flexible system, there has
723:
The choice of law rules for contracts are more complicated than the law affecting other obligations because they depend on the express or implied intentions of the parties and their personal circumstances. For example, questions as to whether a contract is valid may depend on the capacity of the
501:) for the disposition of the case. Naturally, a plaintiff with appropriate knowledge and finance will always commence proceedings in the court most likely to give a favourable outcome. This is called forum shopping and whether a court will accept such cases is always determined by the local law. 923:, i.e. the law of place where each item is located at the time the trust is created. Once created, all questions of administration are governed by the law specified in the trust instrument. In the unlikely event that the instrument is silent, the trust would be governed by the proper law. 929:
All questions relating to wills (and, as an incidental question, any testamentary trusts which the will purports to create), are governed by the law of domicile, nationality or habitual residence at the time of death. Questions of title affecting immovables are determined under the
850:
determines its validity, i.e. the law of the place where the marriage is celebrated, unless the purpose of the marriage offends a public policy of the domicile/nationality/habitual residence state. Hence, some states limit the capacity of their citizens to celebrate a
546:
which originally determined custody and maintenance. A state court will only apply its own law when no parent retains a connection with the original jurisdiction and when substantial evidence is available in its forum to make a custody or maintenance determination.
515:. The court will invoke comity by its discretion and will usually look to two factors before using its discretionary powers: did the foreign court have jurisdiction, and were fair procedures used in adjudicating the case? Under English law, it is the doctrine of 867:
straddle Family Law and status because the outcome of the judicial proceedings affects status and capacities, and also overlap with the more general question of when the courts of one state will recognize and enforce the judgments of another state.
807:
applies. This is the law that has the greatest relevance to the issues involved. In public policy terms, this is likely to be the law of the place where the key elements of the "wrong" were performed or occurred (the
591:
mobility, and with the laws of each state of the Union representing a possible opportunity for conflict, it was necessary to produce a coherent system that could be applied in the courts of all fifty states.
529:. The court then allocates each aspect of the case as pleaded to its appropriate legal classification. Each such classification has its own choice of law rules but distinguishing between 599:
To limit the damage that would result from forum shopping, it is desirable that the same law is applied to achieve the same result no matter where the case is litigated. The system of
818:, both plaintiff and defendants were British Soldiers Residents Stationed in Malta. Having an accident in Malta the court looked at the Lex Loci relating to its dual action-ability. 628:
compete with the policy claims of other states for their laws to be applied. What follows is a generalised summary of the rules. The approach in the U.S. is rather different (see
755:. Another unique characteristic of contracts is that the parties can decide which law should apply for most purposes, and memorialize that decision into the contract itself (see 926:
All questions of prenuptial trusts and transfers are determined by the law of the transferor's domicile, nationality or habitual residence at the time of the marriage.
643:
is relevant for a wide array of issues. Self-evidently, unless the proposed litigant has legal personality, there will be no jurisdiction. It will also be relevant to
740:
or the putative proper law depending on the forum rules. There may also be problems if the parties selected the place where the contract was made in the hope of
507:. Even where a conflict of laws exists, the court will recognize the validity of a foreign judgment in most cases. Under U.S. law, this authority is part of the 79: 411: 736:(where the contract was made). But, if the contract was made electronically, where the contract was actually made must first be decided either by the 385: 624:
from being subjected to a lawsuit after too much time has passed, limitations on recovery, and specified burdens of evidence. These so-called
629: 65: 987: 504: 371: 564:
been some reluctance to apply it and various "escape devices" have developed, which allow courts to apply their local laws (the
491:
must decide both whether it has the jurisdiction to hear the case and, if it has, whether another forum is more suitable (the
404: 102: 647:, entitlement to social security and similar benefits, family law, contract, etc. The choice of law rule, the law of the 581:) or, if it were the place where the wage or salary was to be paid, where the contract was intended to be performed (the 508: 902: 526: 898: 772: 1009: 877: 827: 810: 718: 397: 327: 315: 222: 835: 831: 700: 676: 334: 846: 756: 617: 355: 289: 265: 72: 39: 796: 520: 322: 249: 764: 760: 530: 493: 378: 273: 110: 916: 784: 705: 583: 577: 542: 448: 432: 240: 213: 46: 683:
determines the domicile, nationality or habitual residence, and applies that law to establish an
672: 341: 204: 173: 541:
then applies the relevant choice of law rules. In a few cases, usually involving family law, an
983: 779: 142: 855:
marriage to a person of the opposite biological sex, or prohibit marriage between degrees of
511:
of the U.S. Constitution. Under international law, this authority is part of the doctrine of
440: 428: 195: 22: 436: 348: 763:) – although not every jurisdiction will enforce such provisions. For the 882:
The rule for immovable property (called real property in common law states) is that the
688: 648: 556: 498: 472: 310: 281: 231: 159: 134: 915:
on all aspects relating to title and land use. Similarly, title to movables including
431:
when it is necessary to reconcile the differences between the laws of different legal
1003: 856: 741: 653: 165: 955: 696: 692: 640: 484: 305: 95: 732:
or habitual residence of the parties, or for policy reasons, by reference to the
908: 667: 662: 644: 612: 560: 186: 180: 803: 658: 516: 468: 456: 257: 119: 884: 860: 724:
parties to enter into a contract. This could be decided by reference to the
679:, applies to determine all question of status and its legal attributes. The 621: 488: 695:
affects the rights of inheritance in the case of an intestacy, etc. As to
447:. The outcome of this process is potentially to require the courts of one 911:
or testamentary trust includes immovables, reference must be made to the
852: 841: 566: 464: 452: 444: 128: 603:, which literally means "send back", is an attempt to achieve that end. 864: 768: 684: 616:
as the ability of a plaintiff to file a lawsuit, the imposition of a
600: 512: 53: 744:
the operation of some mandatory provisions in another relevant law.
709:) for all matters of capacity, validity, shareholders' rights, etc. 611:
The traditional approach is based on the idea that the territorial
555:
The "traditional approach" looks to territorial factors, e.g. the
538: 479:
Sequence of events in conflict cases in Common Law jurisdictions
460: 427:
is a procedural stage in the litigation of a case involving the
978:
Koch, Harald; Magnus, Ulrich; Winkler von Mohrenfels, Peter:
467:. The law which is applied is sometimes referred to as the " 844:, both formal and common law, the general rule is the 534:
lack of expertise in deciding an issue of foreign law.
747:On the other hand, deciding matters relating to 451:to apply the law of a different jurisdiction in 405: 8: 16:Legal process to determine whose law applies 801:The presumptive rule for tort is that the 412: 398: 18: 938:according to the laws of Tanzania.(2013) 767:provisions on contractual obligations in 523:determines jurisdiction and recognition. 947: 699:, the choice of law rule is the law of 691:. Thus, under some laws, the status of 363: 297: 151: 87: 31: 21: 982:§5 No.15-16. C.H. Beck, München 2004, 630:Conflict of laws in the United States 66:Conflict of laws in the United States 7: 956:"Conflict of laws - Choice of law" 475:is an issue within choice of law. 14: 814:). As established in the case of 519:. Within the European Union the 505:Recognition of foreign judgments 497:issue relates to the problem of 372:Enforcement of foreign judgments 1: 509:Full Faith and Credit Clause 487:. The court selected by the 903:Conflict of succession laws 787:is limited by this choice. 751:will usually depend on the 1026: 980:IPR und Rechtsvergleichung 919:, should be determined by 899:Conflict of laws of trusts 896: 875: 825: 794: 773:Rome Convention (contract) 716: 521:Brussels Recast Regulation 878:Conflict of property laws 828:Conflict of marriage laws 811:lex loci delicti commissi 719:Conflict of contract laws 223:Lex loci delicti commissi 27:private international law 836:Conflict of divorce laws 832:Conflict of nullity laws 960:Encyclopedia Britannica 298:Substantive legal areas 847:lex loci celebrationis 757:forum selection clause 618:statute of limitations 356:Hague Trust Convention 290:Forum selection clause 266:Lex loci celebrationis 73:Public policy doctrine 893:Trusts and succession 797:Conflict of tort laws 379:Anti-suit injunctions 250:Lex loci protectionis 88:Definitional elements 859:, etc. Questions of 761:choice of law clause 607:Traditional approach 494:forum non conveniens 274:Choice of law clause 111:Forum non conveniens 785:consumer protection 753:lex loci solutionis 734:lex loci contractus 706:lex incorporationis 584:lex loci solutionis 578:lex loci contractus 551:Choice-of-law stage 543:incidental question 455:arising from, say, 443:(as in the US), or 241:Lex loci solutionis 214:Lex loci contractus 47:Incidental question 687:set of rights and 673:habitual residence 657:) if the forum is 205:Lex loci rei sitae 174:Habitual residence 152:Connecting factors 780:Rome I Regulation 422: 421: 143:Lis alibi pendens 1017: 1010:Conflict of laws 994: 993: 976: 970: 969: 967: 966: 952: 917:choses in action 675:if the forum is 527:Characterization 441:federated states 437:sovereign states 429:conflict of laws 414: 407: 400: 196:Lex loci arbitri 80:Hague Conference 40:Characterisation 23:Conflict of laws 19: 1025: 1024: 1020: 1019: 1018: 1016: 1015: 1014: 1000: 999: 998: 997: 991: 977: 973: 964: 962: 954: 953: 949: 944: 905: 897:Main articles: 895: 880: 874: 838: 826:Main articles: 824: 799: 793: 721: 715: 638: 609: 597: 553: 481: 418: 349:Forced heirship 26: 17: 12: 11: 5: 1023: 1021: 1013: 1012: 1002: 1001: 996: 995: 971: 946: 945: 943: 940: 894: 891: 876:Main article: 873: 870: 823: 820: 816:Boys v Chaplin 795:Main article: 792: 789: 717:Main article: 714: 711: 637: 634: 608: 605: 596: 593: 552: 549: 548: 547: 535: 524: 502: 499:forum shopping 480: 477: 420: 419: 417: 416: 409: 402: 394: 391: 390: 389: 388: 382: 381: 375: 374: 366: 365: 361: 360: 359: 358: 352: 351: 345: 344: 338: 337: 331: 330: 325: 319: 318: 313: 308: 300: 299: 295: 294: 293: 292: 286: 285: 277: 276: 270: 269: 261: 260: 254: 253: 245: 244: 236: 235: 232:Lex loci actus 227: 226: 218: 217: 209: 208: 200: 199: 191: 190: 183: 177: 176: 170: 169: 162: 154: 153: 149: 148: 147: 146: 138: 137: 135:Forum shopping 132: 124: 123: 115: 114: 106: 105: 99: 98: 90: 89: 85: 84: 83: 82: 76: 75: 69: 68: 62: 61: 56: 50: 49: 43: 42: 34: 33: 29: 28: 15: 13: 10: 9: 6: 4: 3: 2: 1022: 1011: 1008: 1007: 1005: 989: 988:3-406-50945-2 985: 981: 975: 972: 961: 957: 951: 948: 941: 939: 935: 933: 927: 924: 922: 918: 914: 910: 904: 900: 892: 890: 887: 886: 879: 871: 869: 866: 862: 858: 857:consanguinity 854: 849: 848: 843: 837: 833: 829: 821: 819: 817: 813: 812: 806: 805: 798: 790: 788: 786: 781: 776: 774: 770: 766: 762: 758: 754: 750: 745: 743: 739: 735: 731: 727: 726:lex domicilii 720: 712: 710: 708: 707: 702: 701:incorporation 698: 694: 690: 686: 682: 678: 674: 670: 669: 664: 660: 656: 655: 654:lex domicilii 650: 646: 642: 635: 633: 631: 627: 626:vested rights 623: 620:to prevent a 619: 614: 606: 604: 602: 594: 592: 588: 586: 585: 580: 579: 573: 569: 568: 562: 558: 550: 544: 540: 536: 532: 528: 525: 522: 518: 514: 510: 506: 503: 500: 496: 495: 490: 486: 483: 482: 478: 476: 474: 470: 466: 462: 458: 454: 450: 446: 442: 438: 434: 433:jurisdictions 430: 426: 425:Choice of law 415: 410: 408: 403: 401: 396: 395: 393: 392: 387: 384: 383: 380: 377: 376: 373: 370: 369: 368: 367: 362: 357: 354: 353: 350: 347: 346: 343: 340: 339: 336: 333: 332: 329: 326: 324: 321: 320: 317: 314: 312: 309: 307: 304: 303: 302: 301: 296: 291: 288: 287: 284: 283: 279: 278: 275: 272: 271: 268: 267: 263: 262: 259: 256: 255: 252: 251: 247: 246: 243: 242: 238: 237: 234: 233: 229: 228: 225: 224: 220: 219: 216: 215: 211: 210: 207: 206: 202: 201: 198: 197: 193: 192: 189: 188: 184: 182: 179: 178: 175: 172: 171: 168: 167: 166:Lex domicilii 163: 161: 158: 157: 156: 155: 150: 145: 144: 140: 139: 136: 133: 131: 130: 126: 125: 122: 121: 117: 116: 113: 112: 108: 107: 104: 101: 100: 97: 94: 93: 92: 91: 86: 81: 78: 77: 74: 71: 70: 67: 64: 63: 60: 59:Choice of law 57: 55: 52: 51: 48: 45: 44: 41: 38: 37: 36: 35: 32:Preliminaries 30: 24: 20: 979: 974: 963:. Retrieved 959: 950: 936: 931: 928: 925: 920: 912: 906: 883: 881: 845: 839: 815: 809: 802: 800: 777: 752: 748: 746: 737: 733: 729: 725: 722: 704: 697:corporations 693:illegitimate 680: 666: 652: 639: 625: 610: 598: 589: 582: 576: 571: 565: 554: 492: 485:Jurisdiction 449:jurisdiction 424: 423: 386:Revenue rule 280: 264: 248: 239: 230: 221: 212: 203: 194: 185: 164: 141: 127: 118: 109: 96:Jurisdiction 58: 992:(in German) 909:inter vivos 765:harmonising 749:performance 730:lex patriae 668:lex patriae 663:nationality 645:immigration 613:sovereignty 561:nationality 364:Enforcement 187:Lex patriae 181:Nationality 965:2021-02-18 942:References 853:monogamous 822:Family law 804:proper law 771:, see the 689:capacities 661:or law of 659:common law 531:procedural 517:obligation 469:proper law 457:family law 435:, such as 258:Proper law 120:Lex causae 932:lex situs 921:lex situs 913:lex situs 907:Where an 885:lex situs 713:Contracts 677:civil law 622:defendant 489:plaintiff 445:provinces 103:Procedure 1004:Category 872:Property 842:marriage 738:lex fori 681:lex fori 649:domicile 572:lex fori 567:lex fori 557:domicile 473:Dépeçage 465:contract 453:lawsuits 342:Property 328:Marriage 316:Contract 311:Capacity 282:Dépeçage 160:Domicile 129:Lex fori 865:divorce 861:nullity 742:evading 335:Divorce 986:  840:As to 834:, and 769:EU law 685:in rem 641:Status 636:Status 601:renvoi 595:Renvoi 513:comity 306:Status 54:Renvoi 703:(the 671:) or 539:court 463:, or 984:ISBN 901:and 863:and 791:Tort 778:The 759:and 537:The 461:tort 323:Tort 25:and 632:). 587:). 559:or 471:." 1006:: 990:. 958:. 934:. 830:, 775:. 728:, 459:, 439:, 968:. 665:( 651:( 413:e 406:t 399:v

Index

Conflict of laws
Characterisation
Incidental question
Renvoi
Choice of law
Conflict of laws in the United States
Public policy doctrine
Hague Conference
Jurisdiction
Procedure
Forum non conveniens
Lex causae
Lex fori
Forum shopping
Lis alibi pendens
Domicile
Lex domicilii
Habitual residence
Nationality
Lex patriae
Lex loci arbitri
Lex loci rei sitae
Lex loci contractus
Lex loci delicti commissi
Lex loci actus
Lex loci solutionis
Lex loci protectionis
Proper law
Lex loci celebrationis
Choice of law clause

Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.