Conflict of Laws

Private International Law Conflict of Laws or Private International Law International Private Law

Compare the following situations: An Englishman and his wife are British citizens, domiciled and resident in England, went through a ceremony of marriage in England. Later: the wife petitions an English court for a divorce. The spouses are still domiciled and resident in England. A British couple married in France, domiciled and resident in England at the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France. DOMICILE - the country which a person officially has as their permanent home, or has a substantial connection with. RESIDENT – a person is considered a resident if you're present in a country for 183 days or more per tax year  

Conflict of Laws / Private International Law - term stems from Ulrich Huber (Netherlands) - nowadays used primarily in the United States, Canada, and, increasingly, the United Kingdom Private international law - term first used by Joseph Story (USA) in 1834 - used in most other countries and in the UK

Two major streams of legal thought on the nature of Conflict of Laws A) "universalism" – a stream of researchers who regard Conflict of Laws as a part of International Law, claiming that its norms are uniform, universal and obligatory for all states B) "particularism” – a theory which maintains the view that each State creates its own unique norms of Conflict of Laws pursuing its own policy

Conflict of Laws   - concerns conflicts between persons, companies, corporations and other legal entities - conflict of laws occurs when there are several possible laws that could apply, and those laws mandate different results - cases of conflict of laws arise from differences between legal systems A)    in common law system - a branch of international law and interstate law that regulates all lawsuits involving a "foreign" law element   B)    in civil law system - a law branch of internal legal system dealing with 1) the determination of which state law is applicable to situations crossing out the borders of one particular state and involving a "foreign" element (collisions of law, conflict of laws) 2) the international civil procedure and international commercial arbitration (collisions of jurisdiction, conflict of jurisdictions).

Conflict of Laws (in common law legal systems) : Addresses the following questions: 1) In which legal jurisdiction may a case be heard? (determining whether the proposed forum has jurisdiction to adjudicate and whether it is the appropriate venue for dealing with the dispute) 2) The law of which jurisdiction(s) should be applied to the issues in the case? determining which of the competing state's laws are to be applied to resolve the dispute – choice-of-law rules (the court first must settle these conflict of law questions before beginning to hear the merits of the case and deciding on a resolution to the dispute) 3) How a foreign judgment will be enforced?

Areas of law involving conflict of laws Law of obligations (contracts, torts) Property and succession (property inter vivos, succession, matrimonial property relations) Family law (marriage, divorce, children)

The stages in a conflict case 1.The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue resolving the issue of forum shopping 2.The characterization of the cause of action into its component legal categories which may sometimes involve an incidental question 3. Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issues 4.Application of selected laws to reach a judgment. 5.The successful party must enforce the judgment which will firs involve the task of securing cross-border recognition of the judgment.

2. Incidental question Lawrence v Lawrence (1985) Fam 106 In Lawrence v Lawrence [1985] Fam 106 the English Court of Appeal was asked by the second husband to rule on the validity of a potentially bigamous marriage. The wife first married in Brazil and then divorced the husband in Nevada (this was not recognised in Brazil) and immediately married the second husband in Nevada. The two laws were the wife's lex domicilii (her domicile was still Brazil) to which English choice of law rules referred her capacity to marry (under Brazilian law she lacked capacity to marry the second husband) and the validity of the second marriage which was determined under the lex loci celebrationis. The case was decided by characterising the case as one of divorce recognition rather than capacity to marry. lex domicilii = law of the domicile lex loci celebrationis = the law of the land where the marriage was celebrated

3. Choice of law rules Courts faced with a choice of law issue have a two-stage process: 1. the court will apply the law of the forum (lex fori) to all procedural matters 2. it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection

e.g. -the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, -the law of the state in which property is situated (lex situs) will be applied to determine all questions of title, -the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, (In any case PROPER LAW will bi applied!!! Proper law =  the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied (US  the most significant relationship test is conducted)

Case study 1 A who has a French nationality and residence in Germany B who has American nationality, domicile in Arizona, and residence in Austria C a Swiss national, owns property in Switzerland A corresponds with B over the internet. They agree the joint purchase of land in Switzerland, currently owned but C, but they never physically meet. They execute initial contract documents by using fax machines, followed by a postal exchange of hard copies. A pays his share of the deposit but, before the transaction is completed, B admits that although he has capacity to buy land under his lex domicilii and the law of his residence, he is too young to own land under Swiss law.

Case study 2 Schwebel v Ungar [1964] 48 DLR (2d) 644 Supreme court of Canada A Jewish husband and wife, domiciled in Hungary married in Hungary. While they were emigrating to Israel, they found themselves in Italy and the husband divorced his wife by get (divorce document in Jewish religious law). Under the laws of Hungary (their lex domicilii) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous.

Case study 2 - Ruling The Supreme Court held the marriage to be valid. - The main question was the wife's capacity to marry which, under Canadian law, is determined by her lex domicilii, i.e. the law of Israel at the time of the second ceremony. - The incidental question was the validity of the divorce which was to be determined eiteher a) by their lex domicilii at the relevant time or b) by Italian law as the lex loci actus. The judgment seems to suggest that the court decided both questions by reference to the law of Israel as the law governing the main question.

Translate the terms conflict of laws to apply – applicable commercial arbitration conflict of jurisdiction a proposed forum applicable law an appropriate venue enforcement of foreign judgments to give rise to a litigation to resolve a dispute forum shopping incidental question

Revision https://www.youtube.com/watch?v=H9g6lejOclM

Zakon o rješavanju sukoba zakona s propisima drugih zemalja u određenim odnosima, NN 53/91, 88/01 Read Chapter II of this law (APPLICABLE LAW) and make notes about the following situations and the legal rules referring to the applicability of law to them: 1. Custody 2. Succession 3. Marriage and divorce