conflict essay - mar 14-2011
TRANSCRIPT
The Conflict Of
laws
UNIVERSITY OF TECHNOLOGY, JAMAICAFACULTY OF LAW
Name: Anwar WrightID#: 05-01-442Professor: Mr. Kest Miller Date: 14th, march, 2010 (monday)
The Doctrine of Connecting Factors – Conflict Law
Assignment Two
QUESTION ONE
“A fundamental problem in the conflict of laws is whether the connecting factor
should be determined by the lex fori or the lex causae… it is no longer controversial
among learned writers that the connecting factors should be determined by the lex
fori. Although the reported cases are all concerned with domicile, it may be assumed
that English law has adopted this prevailing opinion, and that, for the purpose of an
English conflict rules, the connecting factor will be determined by English law as the
lex fori.” Per Stoughton J. in Chevron International Oil Co.Ltd. v. A/S Sea Team (The
‘TS Havprins’) [1983] 2 Lloyd’s Report 356 at p. 358.
Using relevant case authorities and opinions of writers, critically discuss the
development of the doctrine of the Connecting Factors in the relation to the above
statement, highlighting the concept of domicile in the English and Commonwealth
Caribbean context.
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The Doctrine of Connecting Factors – Conflict Law
Introduction
Conflict of laws arises when there is a dispute before a court containing one or more
foreign elements. In a conflict case, once the cause of action is identified the next
stage in the process is that of determining the applicable law. This determination is
made by identifying the connecting factors. In the conflict of law, connecting factors
are facts that provide the nexus between an event, a thing, a transaction, a person, or
an occurrence, on the one hand, and a particular law or jurisdiction, on the other. For
example, in the rule that that the essential validity of marriages are governed by the
law of domicile, domicile is the connecting factor. It provides the link between the
person and the law of the country where the marriage was performed. Connecting
factors can be:
Domicile (lex domicilii), residence, nationality or place of incorporation of the
parties (lex incorporationis);
The place of conclusion or performance of the contract (lex loci contractus);
The place where the tort was committed (lex loci delicti commissi);
The flag or country of registry of the ship; or
The ship owner’s base of operations.
The place where the property is situated (lex situs)
In deciding a conflict case, these connecting factors are heavily considered and
weighed by the courts. Connecting factors are also considered when determining the
circumstances in which the English court should exercise jurisdiction or recognize a
foreign judgment. Many foreign divorces, for example, can be recognized if either
party was domiciled or habitually resident in the foreign country at the date of the
divorce. It is usually the case that rules of substance and not procedure are subject to
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foreign law. The difficulty is however how to determine or classify a rule of substance
and a rule of procedure. Procedural matters include:
The nature of the remedy
Method of enforcing a judgment
The capacity of parties to sue or be sued
Competence of witnesses to give evidence
The assessment of damages
The statutes of limitation
The lex fori is the law administered by the court hearing the case. English law is the
lex fori for an English court. The lex fori reserves for itself the matters of procedure
and excludes them from the lex causae. The lex causae is the law that governs an
issue in conflict of laws. The substantive areas of law, on the other hand, concern the
establishment of the rights and duties of the parties.
Every case is treated on its own merit where relevant connecting factors are assessed
by the courts to determine the lex causae. In this context, the lex fori is a critical
connecting factor particularly in determining matters of procedure stated above.
The problem
The problem, to which this essay question speaks, is clearly illustrated in the
following scenario. It is true that some common connecting factors, such as domicile,
can be interpreted differently in different countries. Consider that the concept of
domicile in the United States is different in meaning from that adopted under English
law. By which law then, should the connecting factor, domicile, be classified when
trying to decide whether a person had acquired domicile in Florida; i.e should the
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The Doctrine of Connecting Factors – Conflict Law
connecting factor, domicile, be determined by the lex fori or the lex causae? The
answer according to English law is the lex fori. The rationale for this is that before the
application of any foreign law, English law has to be applied. After using the English
concept of domicile it would not then make sense to decide the same matter again
using the foreign (in this instance, the U.S.) concept of domicile.
Domicile as a connecting factor
Domicile is a very important connecting factor, which provides the link between
a person and a system of law and is normally used in relation to cases concerning
succession to movables and capacity to marry. The Conflict of laws forms part of
English law and as such, English law alone can determine when a foreign law is to be
applied. It can be logically deduced that English law must not only select the
connecting factor, it must also say what it means. Therefore in a situation where both
English and French law use domicile as a connecting factor, but by English law a
person is domiciled in France and by French law in England, an English court will
regard him as domiciled in France.
As per Staughton J,
The proposition that the lex fori determines the connecting factors has two
related but distinct aspects. The first is that the lex fori defines what it means,
e.g. by domicile; the second is that it also determines whether, so defined, the
connecting factor links a given issue with one legal system or with another.
For the purposes of an English conflict rule, English law defines what
domicile means, and also whether a person is or was domiciled in England or
in some foreign country. There is therefore nothing to prevent an English
court from deciding that, for the purposes of e.g. succession of movables, a
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The Doctrine of Connecting Factors – Conflict Law
Frenchman domiciled in France has acquired an English domicile of choice,
even though French law may consider that he has not lost his French
domicile.1
In the case of Re Annesley 2 X died domiciled in France according to English law.
However, according to French law X had never acquired a domicile there. It was held
that X died domiciled in France. This is also true in a case to determine the situs of
property, for example, a bank account at a Florida bank’s English branch. There can
be no doubt that English law would apply, and the situs would be England, even if by
Florida law it would be Florida.
English courts will normally apply their own rules of domicile to determine where a
person is domiciled, as seen in the case of Re Annesley 3 . Domicile is the connecting
factor and must be classified according by the lex fori.
Domicile is important in our personal lives. Defined as “Permanent Home”, it plays a
significant role in family and matrimonial property law, laws governing the capacity
of persons to make contract, capacity to make a will, and laws governing taxation.
Some legal writers regard it as the single most important connecting factor in the
Conflict of Laws. Domicile is a personal law concept. The two important principles of
domicile are a domicile of origin with which every person is born, and a domicile of
choice, which can be acquired by residence and an intention to resided indefinitely.
Whilst personal law concepts such as the lex domicilii are important in the context of
family, succession, and property law, it is far less important in the context of
1 Per Stoughton J. in Chevron International Oil Co.Ltd. v. A/S Sea Team (The ‘TS Havprins’) [1983] 2 Lloyd’s Report 356 at p. 358-359.2 [1926] Ch 6923 [1926] Ch 692
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commercial dispute and the law of transaction. In Bodley Head Limited v Flegon 4 it
was held that the capacity of a party to contract is governed by the law applicable to
the contract, the lex causase, in preference to the personal law of the parties. In Re
Paine 5 on the other hand, the court applied the lex domicilii to determine whether a
child is legitimate or illegitimate.
This illustrates that the law of the forum, lex fori, is not always appropriate, albeit a
very significant connecting factor. Cheshire & North on private international law
states that:
There is not sacred principle that pervades all decisions, but when the
circumstances indicate that the internal law of a foreign country will provide a
solution more just, more convenient, and more in accord with the expectations
of the parties than the internal law of England, the English judge does not
hesitate to give effect to the foreign rules. 6
Nationality as a connecting factor
Although the main personal connecting factor in English law is the lex domicilii (the
law of the domicile), there are two exceptions to this general rule. The first is
nationality, which can only be determined by the actual place of birth. For example, if
a person is alleged to be a French national then his nationality has to be determined by
French law. The second is concerned with jurisdiction. Under section 46 (5) of the
Family Law Act 1986 [UK], a foreign divorce is entitled to recognition on the basis
that one of the parties is domiciled in the country where the judgment is obtained. As
4 (1972) 1WLR 6805 (1940) CH 466 12th edition, p.39
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The Doctrine of Connecting Factors – Conflict Law
it concerns the rule, domicile may be classified according to English law or the
country in which the divorce was obtained.
In most civil law systems such as those operating in continental Europe (France,
Germany, Italy, and so on) the test for ascertaining which country a person belongs to,
for the purposes of conflict law, is not domicile but nationality. French law, for
example, would be the most appropriate law to govern the personal transactions of a
French citizen. The use of nationality as a connecting factor, however, is limited in
England. The advantage of using it instead of domicile is that it is easier to identify
one’s nationality that one’s domicile. The disadvantages lie however, in instances of
stateless individuals and persons with dual nationalities. The concept also is not
effective when dealing with composite states that have more than one legal system.
Territorial connection
Where the parties lack territorial connection with the jurisdiction, then prima facie the
lex fori is not appropriate. In De Dampierre v Dampierre 7 a husband and wife who
are French nationals, were married in France, lived in London, and later the wife and
child moved to New York. The husband filed for divorce in France and the wife filed
for divorce in England. The husband applied for a stay of the wife’s Petition. The
House of Lords held that the wife’s connection with England was insufficient and in
fact quite tenuous so that there were practically no factors that connected the case
with England. France therefore was the appropriate form to resolve this dispute and
the stay was granted.
Additional expense, delay, and inconvenience
7 [1988] 1 AC 92
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In deciding the appropriate forum, the courts have also attached significant weight to
factors such as additional expense, delay, and inconvenience, including the
availability of witnesses. In Cleveland Museum of Art v Capricorn Art International 8 ,
the state of Ohio in the United States of America was established as the appropriate
forum on the basis that the matter had been on-going there for over two years and that
the defendant had so far spent a large sum in legal costs in those proceeding. In
addition the courts considered that trying the matter in Ohio, USA, was more
convenient for witnesses and that the matter concerned a contract for a loan intended
to be used in connection with an exhibition in the United States of America. The
courts were of the view that bringing an action in England would incur additional
expense, unnecessary delay and great inconvenience.
Lex loci delicti commissi, and language
The place where the events occurred and the language of the documentary
evidence can also be important connecting factors9.
In Re Harrods (Buenos Aires) Ltd10, the claimant, being a minority share holder in a
company which was registered in England but carried on business exclusively in
Argentina claimed that the companies affairs were being conducted in a manor which
was unfair and prejudicial to the said company and sought orders, inter alia, that the
company be wounded up. The English Court of Appeal held that Argentina was the
more appropriate forum because of the substantial connection the case had with
Argentina. In particular, all the relevant events took place there and the language of
all the evidence was Spanish.
8 [1990] 2 Lloyd’s Report 1669 Principles of conflict of laws by Abla J. Mayss p 2710 [1992] Ch 72
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In The Albattani 11 the court held that since the documentary evidence including the
servayors report was in the English language which would have to be translated into
Arabic for a trial to take place in Egypt, the appropriate forum was England and in
preference to Egypt.
Parker LJ in The Magnum 12 stated:
Where the decision depends upon the construction of a document or
documents in one language, and the rival courts whose native language is that
of the document and, on the other hand, courts whose native language courts
whose native language is not that of the document, it is in my view clear that
the matter may most suitably be tired in the former courts. This implies no
criticism whatever of the alternative courts. It merely acknowledges reality.
The true meaning of words in, for example, Spanish or French can, in my view
be better decided in, Spanish or French courts as the case may be than by
English courts.
Residence
In circumstances where the place of residence of a claimant or the place where he
carries on his business is the place where, in a libel action, he wishes to have his
reputation vindicated, this is an important connecting factor, which will determine the
choice of forum.
11 (1993)12 (1989) p51
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In Schapira v Ahronson 13 , a libel was allegedly committed in England by Israeli
newspapers against the claimant who lived and carried-on business in England. As the
Israeli newspapers were aware that their publication would be circulated in England,
the English Court of Appeal held that notwithstanding the much larger publication in
Israel, the claimant was entitled to proceed with his claim in England. England was
considered the most appropriate forum despite the fact that there was a large body of
evidence, which connected the case to Israel.
conclusion
It is evident that the principles relevant to the conflict of laws in English common law
jurisdictions including the Caribbean region seek to characterise issues so arises in
their correct legal category. This is the purpose of choosing the lex causae. Whilst the
concept of the lex domicilii is perhaps the most traditionally and historically
recognised connecting factor in English law and is always determined by the lex fori,
it is clear that the doctrine of the connecting factors is wider than that concept.
Connecting factors are not always appropriately determined by the lex fori. This
determination very often depends on the nature of the case itself and the legal
procedural issues which arise. Indeed it is the case that the lex causae (the applicable
law) more often than not does not determine, nor define, the connecting factor; rather
it is the case that connecting factors determine the lex causae as a matter of necessity.
13 [1998] ILPr 587
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The Doctrine of Connecting Factors – Conflict Law
References
C.M.V. Clakson. The conflic of laws. 3rd Edition. New York 2006.
David McLean and Kisch Beevers. The conflict of Laws. 7th Edition. London
2009.
Oxford University Press <http://www.oup.com/uk/orc/law/>
Lloyd’s Law Reports. 1983. Vol. 2
Cases Cited
Chevron International Oil Co.Ltd. v. A/S Sea Team (The ‘TS Havprins’)
[1983] 2 Lloyd’s Report 356 at p. 358.
Re Annesley [1926] Ch 692
Bodley Head Limited v Flegon [1972] 1WLR 680
De Dampierre v Dampierre [1988] 1 AC 92
Cleveland Museum of Art v Capricorn Art International [1990] 2 Lloyd’s
Report 166
Re Harrods (Buenos Aires) Ltd [1992] Ch 72
The Albattani (1993)
The Magnum [1989]
Schapira v Ahronson [1998] ILPr 587
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