 |
| Conflict of laws |
|---|
| Preliminary matters |
| Characterisation · Incidental question |
| Renvoi · Choice of law |
| Conflict of laws in the U.S. |
| Public policy · Hague Conference |
| Definitional elements |
| State · Jurisdiction · Procedure |
| Forum non conveniens · Lex causae |
| Lex fori · Forum shopping |
| Lis alibi pendens |
| Connecting factors |
| Domicile · Lex domicilii |
| Habitual residence |
| Nationality · Lex patriae |
| Lex loci arbitri · Lex situs |
| Lex loci contractus |
| Lex loci delicti commissi · Lex loci actus |
| Lex loci solutionis · Proper law |
| Lex loci celebrationis |
| Choice of law clause · Dépeçage |
| Forum selection clause |
| Substantive legal areas |
| Status · Capacity · Contract · Tort |
| Marriage · Nullity · Divorce |
| Get divorce · Talaq divorce |
| Property · Succession |
| Trusts |
| Enforcement |
| Enforcement of foreign judgments |
| Mareva injunctions · Anti-suit injunctions |
Public policy or ordre public (the French term) is the body of fundamental principles that underpin the operation of legal systems in each state. Conflict of laws (or private international law) is that branch of International law and intranational interstate law that regulates all Lawsuits involving In Conflict of Laws, characterisation is the second stage in the procedure to resolve a Lawsuit involving a foreign law element In the Roman Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a Lawsuit. In Conflict of Laws, renvoi (from the French, meaning "send back" or "to return unopened" is a subset of the Choice of law rules Choice of law is a procedural stage in the litigation of a case involving the Conflict of laws when it is necessary to reconcile the differences between the laws of The Choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally The Hague Conference on Private International Law (or HCCH for Hague Conference/Conférence de la Haye is the preeminent organisation in the area of Private international law The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority In all Lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the Lex fori, i In the Conflict of laws, lex causae ( Latin: Lex + Causa, "cause the law" is the law or laws chosen by the Forum court from In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law the Forum shopping is the informal name given to the practice adopted by some Litigants to get their Legal case heard in the Court thought most likely The principle of lis alibi pendens (literally "dispute elsewhere pending" applies both in municipal Public international law, and Private international law In Conflict of Laws, domicile (sometimes termed domicil in the U The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the Lex causae in cases characterised Nationality is a relationship between a Person and their State of Origin, Culture, association Affiliation and/or Loyalty The term lex patriae is Latin for the law of Nationality in the Conflict of Laws which is the system of Public law applied to The lex loci arbitri is the Latin term for "law of the place where Arbitration is to take place" in the Conflict of Laws. The term lex situs ( Latin) refers to the Law of the place in which Property is situated for the purposes of the Conflict of laws The lex loci contractus is the Latin term for "law of the place where the contract is made" in the Conflict of Laws. The lex loci delicti commissi is the Latin term for "law of the place where the tort was committed" in the Conflict of laws. lex loci actus law of the place where the act occurred that gave rise to the legal claim The lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the Conflict of Laws. The Doctrine of the Proper Law is applied in the Choice of law stage of a Lawsuit involving the Conflict of Laws. The lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the Conflict of Laws. A choice of law clause or proper law clause in a contract is one in which the parties specify which Law (i In Law, dépeçage refers to the concept in the Conflict of laws whereby different issues within a particular case may be governed by the laws of different states A forum selection clause in a contract with a Conflict of Laws element allows the parties to agree that any Litigation resulting from that contract will A person's status is a set of social conditions or relationships created and vested in an individual by an act of Law rather than by the consensual acts of the Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members In the Conflict of Laws, the validity of a Contract with one or more foreign law elements will be decided by reference to the so-called " Proper law In Conflict of Laws, the Choice of law rules for Tort are intended to select the Lex causae by which to determine the nature and scope In Conflict of laws, the issue of Marriage has assumed increasing public policy significance in a world of increasing multi-ethnic multi-cultural Community In Conflict of Laws, the issue of nullity (known as Annulment in the United States) in Family Law inspires a wide response among the laws In modern Society, the role of marriage and its termination through Divorce have become political issues See also Get (divorce document For the religious process see Get (divorce document A get or gett ( גט) is In Sunni Islamic Law there are two forms of divorce known as the talaq and its less well-regulated Sunni version of Triple talaq. In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. In the Conflict of Laws, the subject of Succession deals with all procedural matters relevant to estates containing a "foreign element" whether that element In Conflict of Laws, the Hague Convention on the Law Applicable to Trusts and on Their Recognition was concluded on 1 July 1985 and entered In the Conflict of Laws, issues relevant to the enforcement of foreign Judgments are frequently regulated by Bilateral Treaty or Multilateral The Mareva injunction (variously known also as a freezing order, Mareva order or Mareva regime) in Commonwealth jurisdictions is a court In the area of Conflict of law, anti-suit injunction is an order issued by a court or Arbitral tribunal that prevents an opposing party from commencing French ( français,) is a Romance language spoken around the world by 118 million people as a native language and by about 180 to 260 million people The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time. A society is a Population of Humans characterized by patterns of relationships between individuals that share a distinctive Culture and Institutions Culture (from the Latin cultura stemming from colere, meaning "to cultivate" generally refers to patterns of human activity and the symbolic Law regulates behaviour either to reinforce existing social expectations or to encourage constructive change, and laws are most likely to be effective when they are consistent with the most generally accepted societal norms and reflect the collective morality of society. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Morality (from the Latin la moralitas "manner character proper behavior" has three principal meanings A society is a Population of Humans characterized by patterns of relationships between individuals that share a distinctive Culture and Institutions In performing this function, Cappalli has suggested that the critical values of any legal system include impartiality, neutrality, certainty, equality, openness, flexibility, and growth. This assumes that the true purpose of dispute resolution systems is to discourage self-help and the violence that often accompanies it, i. e citizens have to be encouraged to use the court system. In Law, the judiciary or judicial system is the system of Courts which administer Justice in the name of the sovereign or State The more certain and predictable the outcome, the less incentive there is to go to court where a loss is probable. But certainty must be subject to the needs of individual justice, hence the development of equity. JUSTICE is a Human rights and law reform organisation based in the United Kingdom. Equity is the name given to the set of legal principles in jurisdictions following the English common law tradition which supplement strict rules of law where A judge should always consider the underlying policies to determine whether a rule should be applied to a specific factual dispute. A judge, or justice, is an Official who presides over a Court of law If laws are applied too strictly and mechanically, the law cannot keep pace with social innovation. Similarly, if there is an entirely new situation, a return to the policies forming the basic assumptions underpinning potentially relevant rules of law, identifies the best guidelines for resolving the immediate dispute. Over time, these policies evolve, becoming more clearly defined and more deeply embedded in the legal system.
Contents |
Examples
The most fundamental policy in the operation of any legal system is that ignorantia juris non excusat, the Latin for ignorance of the law is no excuse. Ignorantia juris non excusat or Ignorantia legis neminem excusat ( Latin for " Ignorance of the Law does not excuse" Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. It would completely undermine the enforcement of any law if the person potentially at fault was able to raise as a successful defence that he or she had not been aware of the particular law. For this reason, all the main legislatures publish their laws freely whether in hard copy or on the internet, while others offer them for sale to the public at affordable prices. A legislature is a type of representative Deliberative assembly with the power to create amend and change Laws The law created by a legislature is called Legislation The Internet is a global system of interconnected Computer networks Because everyone is entitled to access the laws as they affect their personal lives, all adults are assumed responsible enough to research the law before they act. If they fail to do so, they can hardly complain if their acts prove unlawful, no matter how transiently they may be within the jurisdiction. In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority The only exception to this rule excuses those of reduced capacity, whether as infants or through mental illness (for example, see the principle of doli incapax which raises an irrebuttable presumption in Criminal Law that an infant is incapable of committing a crime). Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members In law the term minor (also infant or infancy) is used to refer to a person who is under the age in which one legally assumes Adulthood and is legally A conclusive presumption (also known as an irrebuttable presumption) in English law is a Presumption of law that cannot be rebutted by evidence The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential
Underpinning most social, moral and religious systems is the policy of sanctity of life (also culture of life). The phrase "culture of life" is a term used in Moral theology. In the criminal law, for example, where duress is not allowed as a defence to murder because no threat is supposed to overcome a person's moral aversion to taking the life of another, Lord Jauncy in R v Gotts (1992) 2 AC 412 stated:
- The reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance . For English law on the criminal defence see Duress in English law. Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries . . I can therefore see no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld from a murderer.
In refusal of treatment and death with dignity/right to die situations, commission and omission by doctors and hospital authorities resulting in the death of patients has become of increasing significance as societies debate whether the duty to preserve life outweighs the right of the autonomous patient to choose death. Euthanasia (literally "good death" in Ancient Greek) refers to the practice of ending a life in a painless manner For the 1987 film see Right to Die (film The term " right to die " refers to various issues related to the decision of whether an In the Criminal law, an omission, or failure to act will constitute an Actus reus ( Latin for "guilty act" and give rise to liability A physician, medical practitioner or medical doctor who practices Medicine, and is concerned with maintaining or restoring human Health A hospital is an institution for Health care providing treatment by specialised staff and equipment and often but not always providing for A patient is any person who receives medical attention care or treatment. More contentious are those situations in which the patient is unable to make the choice personally, e. g. because in a persistent vegetative state or en ventre sa mère, i. A persistent vegetative state (PVS is a condition of patients with severe Brain damage in whom Coma has progressed to a state of wakefulness without detectable e. a child in gestation.
Similarly, in many branches of law, the Doctrine of Evasion prevents persons, both natural and artificial, from evading the application of obligations and liabilities already attaching to them. In Law, the Doctrine of Evasion is a fundamental public policy. This represents a practical application of the policy that, as an outcome of the social contract, all persons owing allegiance to a state should be entitled to assume that everyone will receive fair and equal treatment before the law, i. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order An allegiance is a duty of fidelity said to be owed by a subject or a Citizen to his/her state or sovereign. e. there will be no favouritism or preferential treatment to any person by virtue of their rank or status within society. Social rank or simply rank is a hierarchy based on one's perceived importance in Society. In Sociology or Anthropology, social status is the honor or prestige attached to one's position in Society (one's Social position) A society is a Population of Humans characterized by patterns of relationships between individuals that share a distinctive Culture and Institutions As such, this is an exception to the policy in the Law of Contract which usually allows the parties autonomy to enter into whatever agreement they want and which might otherwise be taken to permit the parties to exclude the normal operation of the law as between themselves (see the policy of freedom of contract). A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Freedom of contract or contractualism is the idea that individuals should be free to bargain among themselves the terms of their own contracts without government interference
There are policies specific to all the main branches of law. Hence, one of the policies in Family Law is parens patriae, i. Family law is an area of the Law that deals with family-related issues and Domestic relations including but not limited to the nature of Parens patriae is Latin for "father of the people" In Law, it refers to the public policy power of the state to usurp e. that the state is the default parent for all those children within its jurisdiction and that, if it is necessary to protect the interests of the child, the state will usurp the rights of the natural parents and assert its own rights as every child's legal guardian. A parent is a Father or Mother; one who sires or gives CHILD syndrome (or congenital hemidysplasia with ichthyosiform erythroderma and limb defects) is a genetic disorder In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority A legal guardian is a person who has the legal authority (and the corresponding duty to care for the personal and Property interests of another person called a ward Within the EU, the right of the child to be heard in any proceedings is a fundamental right provided in Article 24 Charter of Fundamental Rights of the European Union. The European Union ( EU) is a political and economic union of twenty-seven member states, located primarily in The Charter of Fundamental Rights of the European Union is a document containing Human rights provisions ‘solemnly proclaimed’ by the European Parliament The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also provides that the child's best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions. Best interests or best interests of the child is the doctrine used by most Courts to determine a wide range of issues relating to the well-being of Children
A policy which overlaps between Family Law and Contract is favor matrimonii which requires that any marriage entered into with a genuine commitment should be held valid unless there is some good reason to the contrary, matching Contract, where the preference is always to give effect to the genuine expectation of the parties.
Discussion
The policies adopted by states have come into being for a number of reasons. Some are aspects of the concept of sovereignty and reflect the essence of territoriality. Sovereignty is the exclusive Right to control a Government, a country, a people or oneself Thus, public laws which either define the constitution of the state or regulate its powers can only apply within the boundaries agreed as a part of the process of de jure recognition of statehood by the international community. Public law is a theory of law governing the relationship between Individuals ( Citizens companies) and the State. A constitution is a system for government often Codified as a written document that establishes the rules and principles of an autonomous political entity Other policies are aspects of the social contract, and they define and regulate the relationship between a state and those citizens who owe it allegiance. To that extent, these policies interact with (and sometimes overlap) civil rights and human rights. Human rights refers to the "basic Rights and freedoms to which all humans are entitled A number of these rights are defined at a supranational level and it will necessary for states to consider the extent to which international principles of law are to be allowed to influence the operation of law within their own territories. Supranationalism is a method of decision-making in political communities wherein power is democratically entrusted to independent experienced appointed personalities or to representatives Independently of the work of the international community to produce harmonised principles, the courts in one state may sometimes be faced with lawsuits which either seek to evade the operation of foreign laws through forum shopping or seek the enforcement of "foreign" laws. A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy Forum shopping is the informal name given to the practice adopted by some Litigants to get their Legal case heard in the Court thought most likely This is becoming increasingly common as people now move with reasonable freedom between states and international trade routinely services markets in many different states. Such lawsuits will not be troublesome if the "foreign" law is the same as the forum law. But serious difficulties will arise if the application of the "foreign" law would produce a different result. These "conflicts are resolved under the systems of law known as Conflict of Laws. Conflict of laws (or private international law) is that branch of International law and intranational interstate law that regulates all Lawsuits involving
Public policy in the context of Conflict of Laws
The general rule is that all higher courts have an "inherent jurisdiction" or "residual discretion" to apply the public policies of their state to clarify or more properly interpret the letter of their domestic laws and procedural rules. In all Lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the Lex fori, i In Conflict cases, no court will apply a "foreign" law if the result of its application would be contrary to public policy. This is problematic because excluding the application of foreign laws would defeat the purpose of Conflict of Laws by giving automatic preference to the forum court's domestic law. Thus, for the most part, courts are slower to invoke public policy in cases involving a foreign element than when a domestic legal issue is involved. That said, in those countries that have adopted Treaty and Convention obligations involving human rights, (e. A Treaty is an agreement under International law entered into by actors in international law namely States and International organizations. Human rights refers to the "basic Rights and freedoms to which all humans are entitled g. , in the UK the Human Rights Act 1998 is now in operation) broader concepts of public policy may now apply. The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998 and mostly came into force Thus, courts may have to consider the "justice" implicit in a law that allows a husband to divorce his wife, but not vice versa as an aspect of sexual discrimination. Sexism is the belief or attitude that one Gender or Sex is inferior to or less valuable than the other and can also refer to a Hatred or distrust towards Similarly, it would be possible to question the propriety of polygamous marriages, the talaq system of divorce which is available in some Islamic states, and Jewish divorce known as the get, but it is likely that the courts would be cautious to avoid any implication that they were discriminating against religions. The term polygamy (a Greek word meaning "the practice of multiple marriage" is used in related ways in Social anthropology, Sociobiology, and In Sunni Islamic Law there are two forms of divorce known as the talaq and its less well-regulated Sunni version of Triple talaq. Divorce or dissolution of marriage is the termination of a Marriage. See also Get (divorce document For the religious process see Get (divorce document A get or gett ( גט) is Equally difficult are the Family Laws which regulate incestuous relationships and capacity. Incest refers to any sexual activity between closely related persons (often within the immediate family that is illegal or socially Taboo. Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members For example, it is probable that one state should not be too quick to condemn another because it allows a marriage between an uncle and a niece, or allows a marriage with a girl of 13 (e. g. as in Northern Nigeria), particularly if the parties are not proposing residence in the forum state.
Less controversial is the exclusion of foreign laws that are penal or territorial because they seek to collect taxes due to another state, e. In the most general sense penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation as opposed to civil law that seeks g. in English Law, if foreign exchange control legislation is used as "an instrument of oppression", it may be denied extraterritorial enforcement (Re Helbert Wagg & Co Ltd [1956] Ch 323, 351). English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the Similarly, otherwise valid contracts may be denied enforcement if to do so would assist an enemy of the forum state or would damage the political relationship with a friendly state. When considering questions of status, English courts have held that incapacities imposed on account of slavery (Somersett's Case [1771] 20 St Tr 1), religion (Re Metcalf's Trusts [1864] 2 De G J & S 122), alien nationality (Re Helbert Wagg & Co Ltd [1956] Ch 323 at pp. A person's status is a set of social conditions or relationships created and vested in an individual by an act of Law rather than by the consensual acts of the As a social-economic system slavery is a legal institution under which a Person (called "a slave" is compelled to work for another A religion is a set of Tenets and practices often centered upon specific Supernatural and moral claims about Reality, the Cosmos Nationality is a relationship between a Person and their State of Origin, Culture, association Affiliation and/or Loyalty 345/46), race (Oppenheimer v Cattermole [1976] A C 249 at pp. The term race or racial group usually refers to the concept of categorizing Humans into Populations or groups on the basis of various sets 265, 276/78, 282/83), divorce (Scott v Att-Gen [1886] 11 P D 128), physical incompetence (Re Langley's Settlement [1962] Ch 541 at pp. 556/57) and prodigality (Worms v De Valdor [1880] 49L J Ch. 261 and Re Selot's Trusts [1902] 1 Ch. 488) will be disregarded. Policy is also a key component to the process for the enforcement of foreign judgments. In the Conflict of Laws, issues relevant to the enforcement of foreign Judgments are frequently regulated by Bilateral Treaty or Multilateral
References
- Cappalli, Richard B. The Disappearance of Legal Method, (1997) 70 Temp. L. Rev. 393.
- Dalton, Clare. An Essay in the Deconstruction of Contract Doctrine, (1985) 94 Yale L. J. 997.
- Goodwin-Gill, Guy, Ordre Public Considered and Developed, (1978) 94 LQR 354.
- Moufang, Rainer. The Concept of Ordre Public and Morality in Patent Law, in Geertrui Van Overwalle (Ed. ), Patent Law, Ethics and Biotechnology, Katholieke Universiteit Brussel, Bruxelles, (1998).
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