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:
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222:
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334:
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265:
72:
39:
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520:
322:
249:
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273:
110:
916:
784:
705:
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432:
240:
213:
46:
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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:
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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:
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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:
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991:
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897:Main articles:
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826:Main articles:
824:
799:
793:
721:
715:
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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:
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820:
816:Boys v Chaplin
795:Main article:
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717:Main article:
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499:forum shopping
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726:lex domicilii
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701:incorporation
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654:lex domicilii
650:
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626:vested rights
623:
620:to prevent a
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433:jurisdictions
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425:Choice of law
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59:Choice of law
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38:
37:
36:
35:
32:Preliminaries
30:
24:
20:
979:
974:
963:. Retrieved
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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
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559:or
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