Conflict of Laws
Conflict of Laws
Conflicts of law, otherwise described as private international law, deals with legal issues that arise when more than two States’ legal systems /or jurisdictions are involved in a transaction or event. The rules decide which country’s law applies.
The rules also decide which country’s courts have the sole or primary right to hear disputes. They also deal with the enforcement of judgments given in one state in another.
Conflict of laws deals with legal systems. Most legal systems correspond with a particular country or state. However, in a number of cases, the legal system is not that of the country or State but a part of the State.
Federal and State
In many countries, there are distinct state and federal legal systems. The best-known example is the United States.
Each US State has its own legal system and laws. Many US laws are very similar and based on uniform laws, which are adopted by each State legislature/ parliament. Each state has its own parliament and Court.
In addition, the federal US government is competent in certain important fields. There are distinct federal Courts in the United States dealing with federal matters and disputes between residents of different States.
The United Kingdom does not have a single legal system. England and Wales, Scotland and Northern Ireland are separate and distinct legal systems. Each has a wholly separate system of laws, although, in practice, there are significant similarities between them. Each has its own distinct set of Courts, although the highest Court of each is the UK Supreme Court (formerly the House of Lords).
Jurisdiction
Jurisdiction refers to the power of Courts to hear disputes. Sometimes it is the case that several different countries can hear the dispute in a particular matter, and the actual country which determines it may be decided by who initiates proceedings first and whether the matter is objected to.
There is considerable freedom for parties to decide which country’s laws and which country’s Courts may hear disputes. This freedom is wider in commercial transactions than in consumer transactions. Consumer protection rules make it obligatory that consumers be sued in their own jurisdiction in many cases.
Sometimes, one country’s courts apply another country’s law. In this case, the judge hears evidence of the foreign law from an expert and applies it to the facts.
Foreign law must be proved as if it is a matter of fact. It must be proved as any other fact in the case by way of evidence.
Asserting or Waiving Foreign Law
Under conflict-of-law principles, the domestic court may, in some cases, apply foreign law. Foreign law must be proved as a fact, and evidence must be given of its contents. Evidence will generally be given by an expert in that law. The judge has no power to apply foreign law as of right.
Where foreign law applies it must be pleaded and put forward as part of the case. If it is not pleaded, the default position is that domestic law will apply in most circumstances. In some cases, foreign law is mandatory, in particular in many cases governed by EU regulations and rules.
In some cases, there may be a question as to which law applies. The most pragmatic decision may be that the court applies domestic law, even if it is arguable that foreign law may apply. In many instances, there may be no difference in outcomes, and the parties may not seek to raise the point.
The application of foreign law may effectively be waived. It appears the courts are not obliged to enquire into and apply a foreign law, contrary to the opinion of the litigants.
This principle may apply in relation to a dispute between two parties. If the case relates to property or so-called “in rem” such as title to land, goods or status which binds the whole world, the foreign law should apply.
Rules of the forum
Even when foreign law applies, the courts will apply their own procedural law. The rules of the state must distinguish between matters of substance and procedure.
Matters of procedural law as opposed to substantive law are governed by the domestic rules. This may lead the procedural domestic rule to apply the foreign law in a way different to that in which its own jurisdiction’s courts would apply it.
European legislation on conflict of laws must be applied so as to achieve uniform application. However most such rules provide that the court shall follow their own domestic rules on evidence and procedure. In some cases, the definition of procedure for the purpose of conflicts of law rules for European Union legislation may differ to that adopted by domestic courts.
The manner in which foreign law is received in the domestic court is procedural. The evidence of foreign law must be proved as a matter of evidence. Expert evidence is required .
Domestic rules on the receipt of evidence may not necessarily apply to the reception of foreign law. For example, documents obtained under foreign law by way of discovery or disposition that would not be allowed under domestic law may be allowed in relation to the foreign law.