1. SIMAD UNIVERSITY FACULTY OF LAW
CHAPTER THREE
Choice of Law

2. Lesson Objectives
By the end of this unit, students are expected to explain:
The three methods of approaching choice of law problems;
The general process, steps, of choosing an applicable law;
What characterization and the related concepts mean;
How the problem of renvoi is created and how can it be solved;
The „application‟ a foreign law ;
What is meant by a foreign law is a „fact‟;
How a foreign law can be proved and what the possible solutions are in cases of failure to prove one;

3. Methods The three methods of approaching choice of law problems; 1st
A unilateralist approach is premised on the idea that a state can only determine when its own law could be applied to a case. In other words, this approach deals with the determination of the personal and territorial reach of the potentially applicable local rules of decision. It determines the spatial reach of a certain state's substantive laws.

4. 2nd
The interposition of choice-of-law rules between multistate transactions and legal systems is called the multilateral approach. According to this approach, if there are many laws to be applied and an issue to be solved, then you determine whether the issue or legal relationship has a strong relationship with one or the other law; and finally decide the case in accordance with the legal system with which the law has strong relationship or has most close connection.

5. 3rd
The third and a bit different from the above two approaches is the substantive law approach which is a policy -oriented approach in which substantive policies directly determine the outcome of the choice-of- law process. This approach is characterized by the creation of rules of decision that directly govern multistate transactions. In this theory, one has a certain purpose to achieve and one will apply the law that promotes the result.
result-selective or result-oriented approach. This method is also known as the teleological approach.

6. The "General Part" of Choice of Law Process
One can ask what a court is required to do if a case with an extra-state element is brought before it. As in any ordinary fully domestic case, the court has to identify the facts and find out the appropriate law to resolve the issues of the facts.
In conflicts cases, it is a bit complex. It involves transaction or parties that have a certain connection with a jurisdiction outside the forum. A different mechanism is called to resolve the matter. The court has to pass through a number of processes in order to dispense justice to a conflicts issue. Let us begin with the first stage of the process of choice of law: characterization

7. Characterization
The nature of choice of law rules places large emphasis upon the process of characterization.
Characterization can also be termed as categorization, qualification or interpretation. Conventionally this stage i.e., characterization has got three sub-stages within itself which are taking place in the determination of any conflict of laws questions

8. Stages of characterization
first, determining the juridical nature of the problem presented to the court;
second, selection of the appropriate connective factor, and
third, delimitation of the proper law or to determine the extent of the application of the chosen law. In other words, it involves the characterization or classification of the subject matter or the issues in the case (for example, family, contract, etc) and of the nature of each issue and whether it raises a problem of procedure or of substantive law.

9. 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

10. Renvoi
Renvoi is a French word literally meaning „to send back.‟

11. Case
. An Englishman dies domiciled in France and a question arises in an English court as to the distribution of tangible movable property which he leaves in
England. It is a well established English law that a decedent‟s property is distributed on death according to “the law of the country of his domicile”. Let us say, however, that the conflict of laws rule applicable in France is that an alien decedent‟s property is to be distributed according to “the law of the county of his nationality”, which in our case is
English. While characterizing, the choice of law rules of the forum might call for the law of another state to be applied. Unless there is clear indication otherwise, a question might arise whether the reference to the concerned foreign law encompasses the choice of law rule of that jurisdiction,” the whole law” or to the “internal law” only; that is to mean, the law which a court would apply to a situation all of whose elements were domestic, to the exclusion of choice of law rules

12.   Renvoi as a problem
Renvoi is considered as a problem and sometimes even as a necessary evil for it causes many intricacies. Many countries wanted to do away with it. How is it possible? As Griswold has examined it, the extensive literature on the doctrine has found out about four possible ways of dealing with the question

13. How do deal with it
1. Rejecting the renvoi. The reference to the foreign law does not include to the choice of law rules of the latter
Accepting the renvoi. If state X‟s choice of law rules refer to state Y‟s “whole law”and state Y‟s choice of law rule refers back to state X‟s law then the second reference towards state X‟s law will be taken only to the internal law of state X takingY as refusing to apply her law.

14. Cont..
De‟sistement theory. The reference by state X‟s law to state Y‟s law has produced no state Y‟s law applicable to the situation, there is nothing else for the state Y‟s court to do but apply state X‟s law.

15. Discussion Questions 1. Discuss the stages in a conflict case
2. discuss characterization