Nature & Scope of The Conflict of Laws

Nature and Scope of The Conflict of Laws:

The branch of English law known as conflict of law is a part of the English law which deals with cases having foreign elements.

By foreign element we means simply a contract with some system of law other than the English law, such contract may exist for example because a contract was made or to be performed in a foreign country, a tort was committed there, property was situated there or the parties are not English.

In the conflict of laws, a foreign element and a foreign country mean a non-English element and a country other than England.

So if an action is bought in an English court for damages for breach of a contract made in England between two English men and to be performed in England, there is no foreign element thus the case isn't of conflict of laws and the English court will apply normally the English law.

While if the contract had been made in France between two Frenchmen and to be performed in France then the case would be for an English court a conflict of rule case and it will apply the French law to the most of the dispute matters.

If we changed the fact assuming that the contract was made in France between an Englishman and a Frenchman but to be performed in England, then the case of the conflict of laws not only for the English court but also for French court and indeed for any court in the world.

So the court must decide whether and for what purposes to apply the French or the English law according to which elements are more significant.

Jurisdiction and choice of law:

The questions which always arise in the conflict of laws cases are of two main types:

1. Has the English court jurisdiction to determine that case?

2. If so which law should be applied?

There may be a foreign question to be arisen if there is a foreign judgment as the court has to decide whether to recognize and enforce the foreign judgment or not.

The first question arise in every case with a foreign element and the answer will be obvious as the law of every modern country has rules dealing with these questions called conflict of laws.

Justification:

The question is why should we depart from the rules of our own law and apply those of another system?

The main justification is that it implements the reasonable and legitimate expectations of the parties to a transaction or an accurrence as this can be obviously seen if we asked what would happen if there is no conflict of rules?

Sources:

The most important three sources of the English conflict of laws are:

1. Statutes.

2. The decisions of the courts.

3. The opinions of jurists.

They are placed in this order because there is no doubt that statutes have become potentially by far the most important source and this importance seems likely to increase rather than diminish in the future.

What is the definition of country?

It was defined by Dicey as the whole territory subject under one sovereign body of law.

He suggested that a better expression might be law district but this phrase has never found much favor by the English writers who prefer the more familiar word country.

Wales is not a country because its system of law is the same as of England and it is necessary in the sense of the conflict of law that a country must have a separate legislature.

What is the definition of state?

In public international law or constitutional law a state can be defined as a territory that subject to one sovereign power thus, the UK and colonies, France, USA and every independent member of the common wealth.

What is the definition of foreign?

The term foreign in this article means not English, it doesn't mean foreign in the political sense so the expression foreign country means any country except England and the expression foreign judgment and foreign arbitral award mean judgments or awards given or made outside England.

The connection factor:

The rules of the conflict of laws are expressed in terms of categories and localizing elements or connection factors.

For example, typical rules of the conflict of laws state that succession to immovable is governed by the law of situs, the formal validity of a marriage is governed by the law of the place of celebration and the capacity to marry is governed by the law of each party's ante nuptial domicile.

In the previously mentioned examples the succession to immovable, the formal validity and the capacity to marry are categories while situs, place of celebration and domicile are connection factors.

The determination of the connection factor:

A fundamental problem in the conflict of laws is whether the connection factor should be determined by the lex fori or by the lex causae, since the determination of the lex causae depends on the determination of the connection factor so it is agreed that connecting factor should be determined by the lex fori.

The proposition that the lex fori determines the connection factor has two related but distinct aspects:

First: The lex fori determines what it means by domicile at common law.

Second: It also determines whether the connection factor links a given issue with one legal system or with another.

There are three real exceptions to propositions as:

• Nationality

Nationality is an exception to the second aspect of the proposition but not the first as the lex fori uses nationality as a connection factor but it must define what it means.

It also must say what is to happen when the person concerned has two or more nationalities or none or a national of a composite state like the United Kingdom.

But the lex fori can never say whether a person is national of a foreign state or not it can only be done by the law of the state concerned.

• The second and the third exception are provided by statute are the recognition of divorces and legal separations.

As the law provided that, if either spouse was domiciled in a foreign country in the sense of that country law and it uses the concept of domicile as a ground of the jurisdiction, a divorce or legal separation obtained in that country must be recognized in England.

So if an individual is not domiciled in the United Kingdom, in order to determine whether he is domiciled in another state or not the English court must apply the law of that state.

The incidental or preliminary question:

It is a technical problem of considerable difficulty which arises when, suppose that an English court is called upon deciding a question which has foreign elements and in order to do so it has consider a subsidiary question which also has a foreign element.

If the relevant conflict rule refers to the foreign law to govern the question, should the subsidiary question be governed by the English conflict rule appropriate to his question or it should be governed by the conflict rule of the foreign system of the law governing the main question?

To make that clear we must notice this example, A Greek national domiciled in Greece dies intestate leaving movable in England.

By the English conflict of law rules, succession to his movables is governed by the Greek domestic laws as the law of his domicile.

If we assume that by the Greek domestic law the wife of an intestate is entitled to a share of his movables.

The wife claimed for a share on the ground of being a wife to the intestate, so if we suppose that the marriage between the wife and the intestate was celebrated in England and it is valid under the English law which is applicable one under the English conflict rule.

But this marriage is void by the Greek domestic law which is applicable under the Greek conflict rule because no Greek priest was present at the ceremony.

So the question is will the wife's claim to a share in the intestate's movables be determined by the English or the Greek conflict rule?

A new point of view stating that there is no general rule to applied to every case as each situation should be looked separately in order to find a solution that produces the best results.

Bigamy stated that where no question of polygamy arises there is no problem in the conflict of laws as all legal systems prohibit it.

In fact while all relevant systems of law are united in rejection of polygamy, they may disagree as to whether a marriage is bigamous?

This may occur if one of the parties to the marriage has entered into a previous marriage and according to the conflict rules of one country this marriage is valid and effective at the time of the second marriage.

While according to the conflict rules of the other country, this is not the case as one country may consider the first marriage is void while the second may consider it valid or where a decree of nullity or divorce is not recognized by the one but it is recognized by the other,

So the main question here, is whether the second marriage is invalid for bigamy?

This will raise the question of capacity which is governed by the law of the parties domicile.

This law will say that the second marriage is only valid if neither the party to it, is a party to an earlier subsisting marriage and this latter question is the incidental question and the problem then become should one decide the incidental question by the conflict rules of the domicile or the English conflict rules?

The Canadian case of Schwebel V.Unger is an example of the first situation as:

1. The wife married her husband in Hungary where they were both domiciled and this marriage was valid under all relevant system of conflict of laws.

2. Later the couple who were both Jews decided to immigrate to Israel; they were divorced on the route by a Jewish ghet in Italy.

3. This divorce wasn't recognized by the law of Hungary where they were domiciled or by the law of Italy but was recognized only by the law of Israel.

4. They then acquired a domicile of choice in Israel where they were regarded as having the status of single persons.

5. The wife consulted a rabbi who said it was legal for her to marry

6. The wife while still domiciled in Israel married her second husband in Toronto then they lived together for few years and a child was born.

7. Later difference arose between them, the husband brought an action for nullity on the ground that, the marriage was bigamous.

8. The supreme court of Canada affirmed that of Ontario court of appeal in stating that the marriage was valid.

Legitimacy:

The legitimacy of the child depends on the validity of the parents' marriage, the problem then whether the latter-question should be decided by the English conflict rules or by the conflict rules of the country which govern the main question?

The matter is complicated as the question of legitimacy may itself be incidental to a question of success.

Succession:

Questions of succession are governed in case of movables by the law of the domicile of the deceased and in case of immovable by the lex situs.

The matter of administration are governed by the law of the country where the personal representative obtained his power to act. Thus, if he obtained probate or letters of administration from an English court, English law will govern, as the lex fori.