Conflict of Laws

Snjeana Husinec

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 Conflict of Laws
or

Private International Law

or

International Private Law

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Compare the following situations:
An Englishman and woman 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.
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Conflict of Laws
Addresses two questions:

1)In which legal jurisdiction may a case be heard?

2)The law of which jurisdiction(s) should be applied

to the issues in the case?

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 Conflict of Laws (in common
law legal systems) is
concerned with:
- determining whether the proposed forum has
jurisdiction to adjudicate and whether it is the
appropriate venue for dealing with the dispute

- 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)

- the enforcement of foreign judgments

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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).

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 Conflict of Laws / Private International Law
Conflict of laws
- 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

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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

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

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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.
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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

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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 land 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)

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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.

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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
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Zakon o rjeavanju sukoba zakona s propisima
drugih zemalja u odreenim 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

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