Applying Foreign Law
Issues Raised
The application of foreign law may raise difficult issues in practice. The civil law system is markedly different from the common law system. In some cases, they have similar principles, but their respective procedural and evidentiary rules may be radically different.
A recognised issue in conflicts of law is the characterisation or categorisation of rules. Conflicts of law apply different principles to different types of laws. European Union rules apply very broadly but have limits and perimeters. Characterising a case and the material facts as falling on one side of the line or the other may raise complex issues.
Difficulties of characterisation and application arise in relation to concepts such as material validity, formal validity and so on that are found in conflicts of laws. Where another country’s law applies, it may be that that other country applies a third country’s law.
At common law, the material validity of the contract is governed by its proper law. The formal validity may be covered by the laws of another jurisdiction.
Capacity may be governed by the domicile of the individual concerned. The proprietary effects of transfer may be governed by the place in which the asset is situated
An example of a classification issue that may arise is where a will is revoked by marriage. This may be characterised as a matter of succession or status. Conflict of laws may require the matter to be characterised in one way or the other. The rules may be mutually exclusive. The court may have no choice but to make a categorisation.
Characterisation may be difficult when the facts raise a number of different issues which point to separate laws. For example, a claim may have elements of tort and contract. If the matter is characterised as a tort, one system of laws may apply. If it is characterised as one of contract, another system of laws may apply.
Process of Classification
The general principle is that the law of the home jurisdiction applies to procedural matters and rules regarding bringing the claim. However this itself raises questions as to which laws are procedural and which laws are substantive.
Classification may, of its nature, be quite an artificial process. The most tempting and usual method of classification is to refer to the domestic law.
However, the issue may involve foreign laws and institutions that have no direct counterpart in the domestic legal order. It may involve applying a foreign law in cases where it would not actually be applicable in its own jurisdiction.
An alternative approach is to apply the proper or appropriate law. This is more complex and less easy for the domestic court to undertake. It also raises the question of circularity. It may not be possible to know which foreign law applies until characterisation has identified it.
Another approach looks at the general science of law as derived from the study of comparative law. This is criticised, as comparative law is not necessarily an agreed or uniform subject matter. Comparative law may of its nature, be coloured by the national law of the party who applies it.
In practice, law courts tend to apply domestic law to the issue of classification. It may determine the law of the place in relation to movable or immovable property. The classification of a matter as procedural or substantive domestic courts, of necessity usually looks to domestic law.
Equally in terms of issues of revenue and penal laws, the concept in the home jurisdiction predominates. Some weight may be placed on how the foreign court characterises the position.
Main and Incidental Issues
Common law courts characterise which issues are the main issues and which are incidental issues. The characterisation of the principal and incidental question itself raises questions of judgment. This requires the courts to look at the conflict rules applicable to the main question to identify the law that governs the main question and the incidental question.
Characterisation may be complicated by the “incidental question” which may arise as a preliminary or subsequent enquiry. Two approaches may be taken. The first holds that all incidental questions should be governed by the relevant choice-of-law rule of the forum. The second considers that the law governing the principal issue in the case should determine what law governs the subsidiary questions.
The issue may arise as to whether the incidental question which is capable of separate categorisation under domestic conflict of law rules should be determined in accordance with domestic conflict of law rules or the rules applicable to the principal question.
Classifying Incidental
The facts may give rise to a number of issues for which the domestic court and foreign court give different solutions. Questions of judgement arise as to which is principal and which is incidental. It may be necessary to characterise the type of issue concerned in order to consider which principles of private law and private international law apply. This process itself may involve the application of domestic and private international law rules and categorisations.
The majority approach appears to favour the law applicable to the principal question. To do otherwise may lead to artificial and arbitrary results. An alternative view is that the incidental question should be dealt with by the conflict of laws principles of the home state. Another approach argues that there should be no general rules and that an eclectic approach taken and that it should be taken case-by-case.
An issue may arise as to whether the incidental question, which is capable of separate categorisation under domestic conflict of law rules, should be determined in accordance with domestic conflict of law rules or the rules applicable to the principal question.
Renvoi
The principle of renvoi deals with whether foreign domestic law or foreign private international law (referring to a third country’s law or even back to domestic law) is applicable. Renvoi is said to be the most notorious issue in a conflict of laws.
In theory, there can be scenarios where renvoi involves each state pointing back to the others’ laws with no resolution at all. The effect may be that the circle may be broken only arbitrarily.
Complications may arise where a foreign state has been re-organisation organised or ceased to exist. In some cases, the solution is to refer to where the person lived at the time of the time of dissolution or reorganisation. However, there may be cases where this approach will produce an arbitrary outcome
Applying the domestic rules of a foreign state where it would apply its own conflict of law rules may lead to arbitrary uncertain and potentially anomalous results. The private international law rules may provide that the tort laws of another state apply. However this may be the domestic law or the law as applies under the private international law of that other state. In the latter case. the law would be that the foreign judge hearing the case hypothetically would apply.
Solving Renvoi
The common law position is that there is no clear answer. Sometimes, it is domestic law, and sometimes, it is the private international law of the other state.
A solution to total renvoi is to apply the state’s internal law rather than its private international law rules. Another approach requires the domestic court to look at foreign law, but if that law proceeds differently than Irish law, Irish domestic law is applied by default.
Where two legal systems are involved, renvoi may involve remission. Where a third state’s legal system is involved, the position is sometimes referred to as may involve transmission. The principle of renvoi in the form of remission or transmission is referred to as partial or single renvoi.
Partial or single renvoi prevents multiple references back and forth across borders. Partial renvoi seeks to ensure that there can never be more than two crossings of the border so that there should not be a series of one state looking to the other looking back to each other.
A further possible approach is to adopt a doctrine of double renvoi or total renvoi. This would require the domestic judge to apply the legal system of the foreign law that the foreign court would apply under its own internal conflict of law rules if it were hearing the case. Its application may be difficult. It must be ascertained what foreign laws apply under the law of the other state. The issues of categorisation and characterisation arise.
Rome Regulation & Renvoi
The Rome Regulation and Convention confirm that the law of a jurisdiction under the Convention means the law in force in that jurisdiction other than its private international law rules.The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law.
If a provision in the Rome Regulation points to the law of country A, the judge must apply the substantive law of country A and must not apply its private international law rules, which might refer him/her to the law of country B. The doctrine of renvoi is thus excluded.