Conflict of Laws

HISTORICAL ANTECEDENTS AND MODERN THEORIES

Historical Antecedents

• The Roman Empire

• Fall of the Roman Empire, 6th to 10th centuries

• Period of Territoriality, 11th and 12th centuries

• Era of Statutists, 13th to 18th centuries

• Theory of Savigny

• Early history and development in England

The Roman Empire • Existence of conflicting territorial laws in the Roman Empire created

a state of things which necessitated a system of private international law.

• Italy, except Rome, consisted of a large number of towns, called municipia, while the rest was divided into separate provinces

• Origo and domicil:

a. Every inhabitant was necessarily connected either with Rome or with on of these urban communities

b. The bond of connexion was either citizenship or domicil. Citizenship originated from origo, adoption, manumission (liberation of a slave) or election

c. Therefore, a person could be a citizen is several urban communities at the same time

• A person had his origo in the place to which his father belonged; if it was an

illegitimate child, it was the place his mother belonged to.

• Domicil meant the relation between a person and that urban community which she

had chosen for her permanent abode and therefore the centre of her legal relations

and business

• So a person could be born one place, adopted in another and domiciled elsewhere.

This raises a question of choice of law and though probably governed by a system of

personal law, the question was which system of personal law? The law of origo or

domicil? Savigny submits that in case of conflict between laws of citizenship and

domicil, then law of citizenship prevails. If one is a citizen of more than one place,

then law of the place of birth applies.

• Some isolated rules of choice of law can be discovered from this period. For instance,

contracts had been determined according to the law of the place where it was made

and property transactions were governed by lex situs

Fall of Roman Empire (6th - 10th Centuries)

• Roman Empire was overthrown and tribes settled down in different parts and the territorial law ceased to be applicable

• A system of personal laws arose, with each tribe retaining its own tribal law, akin to the system of personal law based on religion in India applicable to Hindus, Muslims etc.

• Criminal Law and Canon law was of universal application but for most part, the racial law was necessary to be discovered for the parties to the dispute and then to choose the applicable law.

• There were some rules for choice of law which are reasonably clear. The genera principle was that the defendant’s system of law must prevail in every suit. Capacity to contract was governed by the personal law of each party; succession was regulated by the personal law of the deceased; transfer of property governed by law of the transferor; in an action of tort, law of the wrongdoer prevailed and marriage was solemnized according the law of the husband.

Period of Territoriality (11th & 12th Centuries)

• State of society in this period was the direct antithesis of what prevailed for the previous 300-400 years, as the system of personal laws gave way to a system of territorial laws, for different causes

• North of the Alps, it was due to the transformation of society into feudal units

• Feudalism is the negation of personality and recognised nothing except the local law of the land. For instance, a Frank or Burgundian could not invoke his personal law but had to be subject to the law of his lord

• The policy of a feudal superior was to rigorously disregard all laws save his own and refuse protection to rights acquired under an extraneous legal system

• For instance, strangers were rightless and was in danger of losing his property, even freedom and he could not transmit his property on death

• South of the Alps, this concept of territoriality arose as a result of the growth of Italian cities and the bond of union among the people was neither race nor subjection to a common overlord but residence in the same city. A number of cities such as Florence Bologna, Milan, Pisa and Padua emerged and their diversity of municipal laws, combined with commerce between cities, required some respect to alien laws, ultimately giving rise to the science of private international law.

Era of the Statutists (13th – 18th Centuries) • Period of renaissance of Roman law

• Glossators of the 11th century did much to revive Roman law by the explanatory notes or glossae that they added to the text of Corpus Juris

• Post-glossators, jurists attached to the law schools of Bologna, Padua, Perugia and Pavia, made the first serious attempt to a apply a scientific mode of reasoning to reconciliation of conflicting laws.

• The first law of the Corpus Juris, they connected their disquisitions to was the law De summa Trinitae at fide Catholica, by which the Emperors Gratian, Valentinian and Theodosius sought to compel Roman citizens to observe Christian faith

• According to Wolff, though Italian jurists broke new ground, ‘they pretended that they only developed rules latent in the Corpus Juris’.

• Bartolus (1314-57), described as the father of private international law, was the first person to deal with the subject on principle and his method was to determine the province of each rule of law. He asked- “What groups of relationships fall under a given rule of law?”

• The statute theory was originated by the post glossators which became the centre of interest for many succeeding centuries

• The word ‘statute’ in the Middle Ages, was used to describe any local law, legislative or customary, peculiar to an Italian city and contrary to the general Italian law, i.e. the Roman law and Lombardic law.

• Originally, the object of the statute theory was to settle conflicts which arose, first, between the local laws of the numerous Italian cities, and secondly, between the local laws and what may be called the “common law”, i.e. the legislation affecting all the subjects of the Emperor of Germany and King of Lombardy

• They classified each law in accordance with how it concerned a person or a thing and evolved the following:

1. All statutes are either real or personal or mixed. A real statute is one that regulates things, a personal statute chiefly concerns persons and a mixed statute concerns acts, such as formation of contract, rather than a person or a thing.

2. Three categories differ in their field of application. Real statutes are essentially territorial, restricted to the territory of the enacting sovereign. Personal statutes apply to persons domiciled within the territorial jurisdiction of the enacting sovereign but they remain applicable even with the jurisdiction of another territorial sovereign. Mixed statutes apply to all acts done in the country of the enacting sovereign, even though they raise litigation in another country.

• Though seemingly simple, determining what statutes are real, personal or mixed met with utmost confusion. The problem was insolvable. For example, a law which regulates one’s capacity to transfer land was personal because it concerned persons or real because it affects land?

• Some jurists dealing with capacity distinguished between favourable and onerous statutes. Incapacity of infancy was deemed favourable and so it followed a person affected wherever he went; but an onerous law ceased to apply outside the territory of the legislator.

• Bartolus made the distinction of personal and real laws based on the grammatical construction of the enactment.

• In the 16th century, statute theory was carried to France. Different provinces of the same country, had different legal systems called coutume or custom.

• French jurists elaborated the statute theory and Dumoulin, described as a legal genius by Westlake, was the first exponent of the doctrine that the law to govern a contract is the law intended by the parties. D’Argentre however supported autonomy of the provinces, not of the parties.

• In the 17th century, Dutch jurists developed the statute theory further with the fundamental principle of the exclusive sovereignty of the state.

Theory of Savigny • Friedrich Carl von Savigny was a German legal scholar and historian who founded the “historical school”

of jurisprudence. His approach was detailed in his eight volume magnum opus entitled System des

heutigen römischen Rechts, or “System of Modern Roman Law,” published in 1849, in which he

maintained that it was possible to construct a system of private international law common to all civilized

nations

• Through this approach, laws would be interpreted and analyzed according to a more scientific

investigation, through research into the historical origins and development of particular laws in relation

to local custom. Each legal relation has its natural seat in a particular local law and that should be

applied when it differs from the law of the forum. This approach diverged from other approaches to the

development of legal rules based on natural law or “statutist” efforts to codify rules based on abstract or

unworkable principles

• The criticism of this theory is that it assumes uniformity of legal relations in all systems of law. For

instance, a breach of a promise to marry is a contractual breach in some systems, a tort in others and no

wrong in some others. Also, this theory is criticised as a goal easier longed for, than found.

• However, the basis of Anglo- Saxon law being experience not logic, Cheshire comments that that the

actual practice of English courts corresponds in general with Savigny’s theory.

Early English Development

• Until a couple of centuries ago, English lawyers did not deal with problems of choice of law

• When English traders began to go overseas, commercial disputes were dispensed with the general law merchant and no choice of law issues arose

• Robinson v Bland, 1760, involved for the first time a question of whether a contract valid by the law of France where it was made, though void in England, could be sued on in England. Lord Mansfield gave the modern flavour to the discussion in the case by remarking that the place where the contract was made is to be considered for enforcing the contract, not where the action was brought, with the exception that the parties while making the contract had a view to a different country.

• Mostyn v Fabrigas, 1775, Lord Mansfield discussed partly the rule that justification by the law of the place of the tort could be pleaded as a defence to an action in England.

• The 18th century represents the embryonic period of private international law, which extended upto the mid 19th century too, where rules governing contracts, torts and legitimation were laid down

Modern Theories

Theory of Acquired Rights

Theory of International Comity

Local Law Theory

The American Revolution

The English Approach

Theory of Acquired Rights • Originated with Dutch jurist, Huber and elaborated with by Dicey in

England and Beale in USA.

• Based on the principle of territoriality

• According to it, the judge cannot directly recognise or sanction foreign laws nor can he directly enforce foreign judgments. It has to be recognised by its own territorial law.

• The territorial law must govern all cases. It was derived from Huber’s statement. It was said that, “the laws of another state which have been applied within its frontiers maintain their force everywhere.” As a result of this, when the vested right obtained in one country have to be enforced and protected in other countries. And also it was supported by Sir William Scott in the case of Darlrymple v Darlymple.

• Extra territorial effect is thus given, not to the foreign law itself, but to the rights acquired or created under it

Theory of International Comity • In order to explain why a local court has, or is willing, to consider a foreign law which is likely to be in

conflict with the local law in a given circumstance, certain legal scholars relied on the theory of comity. This theory (the theory of international comity) was explained by Huber in the following words:

• Sovereigns act out of comity so that the laws of each nation, brought into existence within its territory, may hold their force everywhere so far as they do not prejudice the power of the law of another sovereign and his subjects. From which it follows that this is derived not merely from the civil law, but from convenience and the tacit consent of nations

• Huber’s theory of comity was further developed by J. Story of the United States in the nineteenth century, but ‘was criticised by several European writers on the basis that it was too parochial and relegated choice of law to judicial discretion and caprice’.

• It explains why a sovereign state will wish to respect the sovereignty of another — this respect extends to the ‘sovereignty of the law’ and ‘territorial sovereignty’ of another state. If ‘comity’ is understood merely as a gesture of courtesy based solely on the discretion of a local government or a local court, it only explains the conflicts rules from a moral perspective (i.e., a morally binding covenant between countries. International comity is better understood as being based on reciprocity and mutual convenience — in order to avoid or to reduce mutual inconvenience, countries have to give reciprocal comity to each other when considering the authority of foreign law in certain circumstances. This proposition may perhaps be called ‘economic interdependence theory’.

• Since the comity theory is based on the courteous conduct of states or courts of different states, it is vulnerable to attack from the parochial, arbitrary and discourteous conduct of foreign states or foreign courts in certain circumstances. The comity theory does not impose a unilateral obligation upon a local court to treat a competing foreign jurisdiction as equivalent to its own jurisdiction.

• To protect a right is to give effect to the legal system it originates from, for a right is not a self-evident fact but a conclusion of law.

• This theory was advanced to explain the difficulty of reconciling the recognition of a foreign law with the general principle that the laws of a sovereign state have force only within its own territorial jurisdiction.

Criticism:

1. Assumes a narrow meaning of ‘territorial law’, which is not only a set of positive rules regulating acts but also includes rules for choice of law • For instance, if an English court is testing the substantial validity of a contract made by two

foreigners in Paris referring to French law, it is in fact applying a rule imposed by the English sovereign, as English choice of law rules are part of England and it can be described as putting into force part of the territorial law of England

2. The theory is futile if its supposed objective is to indicate the legal system which governs each legal relation, as it creates a vicious circle.

3. This theory is untrue in fact, as choice of law rules in much of the common law world require enforcement of an unrecognised or even repudiated right, by the chosen law

4. Savigny had criticised this theory of Huber, when he said, “This principle leads into a complete circle; for we can only know what are vested rights, if we know beforehand by what local law we are to decide as to their complete acquisition.”

Local Law Theory

• Propounded by Walter Wheeler Cook

• The theory appears to have endeavoured to justify (or to search for a higher theory or reason to explain) why a sovereign court wants to (or has to) give effect to rights recognised under a foreign law, or even to enforce the relevant foreign law. It determines that the country’s court recognises a local right and never applies foreign law as their own law.

• The real significance of this theory is seen in the extended construction of this statement. For example, North and Fawcett argue that the gist of the local law theory is the proposition that a local court ‘applies its own rules to the total exclusion of all foreign rules’ and it often ‘for reasons of social expedience and practical convenience, takes into account the laws of the foreign country in question to apply the local law in a manner as close as possible to the way in which the relevant foreign law would apply

The American Revolution

• The conflict of laws rules has also developed under the some important techniques.

• There are two general techniques. The first one is jurisdiction-selection technique. It was develop by Caver in 1933. This requires that, the court applies the law of the country which is chosen by choice of laws rules and it is irrespective to the content of the particular rule of law thereby selected. Such as, the validity of the contract is governed by the law chosen by the parties.

• Moreover, Caver introduced seven ‘principles of preference’ in 1965. It was guides for courts in cases where the conflict of laws rule s is neither false nor avoidable. Five of these principles are related with torts and two of them with contracts and conveyances.

• This principle was criticised and claimed that, it does not work an international area, because these principles were not related any other than torts, contracts and conveyances.

• The second technique is the rule-selection technique. This technique was mostly used by American courts. This is requires that, the court examines the particular rules of law. Choice of law rules should be identified by court and to apply one particular legal system rather than a different substantive rule of another legal system

The English Approach

• The afore discussed theories are unsupported in the English Private International Law and are alien to the common law tradition.

• The English instinct, according to Cheshire, is to test a proposed rule by its bearing on normal human activities and expectations

• This is the spirit of the English choice of law rules and is undertaken to develop clear rules properly applicable to the generality of cases in a particular field.

Private International law, like any other law, is not an exact science and is not

scientifically founded on the reasoning of jurists, but it is beaten out on the anvil of

experience.

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