The Proper Law of the Contract
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Paul V. National Life, Lex Loci Delicti and the Modern Rule: a Difference Without Distinction
Volume 90 Issue 2 Article 12 January 1988 Paul v. National Life, Lex Loci Delicti and the Modern Rule: A Difference without Distinction Vernon A. (Bo) Melton Jr. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Conflict of Laws Commons, and the Torts Commons Recommended Citation Vernon A. Melton Jr., Paul v. National Life, Lex Loci Delicti and the Modern Rule: A Difference without Distinction, 90 W. Va. L. Rev. (1988). Available at: https://researchrepository.wvu.edu/wvlr/vol90/iss2/12 This Student Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Melton: Paul v. National Life, Lex Loci Delicti and the Modern Rule: A Di PAUL v. NATIONAL LIFE, LEX LOCI DELICTI AND THE "MODERN RULE": A DIFFERENCE WITHOUT DISTINCTION? I. INTRODUCTION The doctrine of lex loci delicti has been a long-standing rule of conflicts law when dealing with tort issues and the determination of whether to apply the law of the state where the tortious conduct took place or the law of the forum state. Traditionally, "the law of the place of wrong determines whether a person has sustained a legal injury"' and "[t]he place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place." ' 2 The doctrine has come under attack in recent years, and many states have abandoned it, adopting one or more of the so-called modern rules instead. -
Conflict of Laws: Contracts and Other Obligations F
Louisiana Law Review Volume 35 | Number 1 Fall 1974 Conflict of Laws: Contracts and Other Obligations F. Michael Adkins Repository Citation F. Michael Adkins, Conflict of Laws: Contracts and Other Obligations, 35 La. L. Rev. (1974) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol35/iss1/8 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. COMMENTS CONFLICT OF LAWS: CONTRACTS AND OTHER OBLIGATIONS In ordering relations between parties to a contract, the courts have developed standards for choosing between conflicting laws of two or more jurisdictions in at least four areas of contract law: capac- ity of the parties to contract, availability and nature of the remedy, formal validity, and substantive validity.' Of the fascicle of conflicts rules applicable to such a problem, those providing the substantive law to determine the validity of the alleged contract have been dealt 1. Louisiana jurisprudence peculiarly splits these considerations of conflicts prob- lems sounding in contract into separate categories. Capacity: The law of the domicile of the parties in question controls the capacity to contract. See Pilcher v. Paulk, 228 So. 2d 663 (La. App. 3d Cir. 1969) (minors); Sun Oil Co. v. Guidry, 99 So. 2d 424 (La. App. 1st Cir. 1957) (minors). Louisiana courts have regularly held that the law of the domicile of the parties governs the capacity of a party to contract with his or her spouse for a regime other than the community of gains, or for a settlement or division of property owned in common. -
LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen*
FORBIDDING DÉPEÇAGE: LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen* 1. INTRODUCTION The law governing international arbitration has been a field of considerable conceptual controversy. The debate goes back to the 1960's and 1970's, when distinguished scholars such as F .A. Mann, Berthold Goldman, Philippe Fouchard and others argued whether international arbitration should be considered an autonomous system of law, a new lex mercatoria, or whether it ultimately remained subject to the applicable local legal sys- tem. i As is well known, the former view was shared by many * Partner, LALIVE, Geneva. 1 would like to thank David Bonifacio of LALIVE for effective and efficient research assistance. 1. For an overview of this discussion see, e.g., Berthold Goldman, Les conflits de lois dans l'arbitrage international de droit privé, 109 bk. II RECUEIL DES COÙRS 347 (1964) (hereinafter Goldman, Les conflits de lois); Berthold Goldman, Frontières du droit et lex mercatoria, 9 ARCHIVES DE PHILOSOPHIE DU DROIT 177 (1964) (hereinaf- ter Goldman, Frontières du droit et lex mercatoria); PHILIPPE FOUCHARD, L'ARBITRAGE COMMERCIAL INTERNATIONAL 351-457 (1965); F.A. Mann, Lex Facit Arbitrum, in INTERNATIONAL ARBITRATION LIBER AMICORUM FOR MARTIN DOMKE 157 (Pieter Sanders ed., 1967); Pierre Lalive, Problèmes rélatifs à l'arbitrage interna- tional commercial, 120 bk. 1 RECUEIL DES COURS 569, 597-663 (1968); Pieter Sanders, Trends in the Field of International Commercial Arbitration, 145 bk. II RECUEIL DES COURS 205, 238-65 (1976); Pierre Lalive, Les règles de conflit de lois appliquées au fond du litige par l'arbitre international siègeant en Suisse, 145 RECUEIL DES COURS 2 (1976) (hereinafter Lalive, Les règles de conflit de lois appliquées); Harold J. -
109 . IMMOVABLES It the CONFLICT of LAWS 4. the DOCTRINE
109 . IMMOVABLES It THE CONFLICT OF LAWS 4. THE DOCTRINE OF THE RENVOI At this point,,before the discussion passes from the topic of succession on death to that of transfer inter vivos, it seems appropriate to mention the doctrine of the renvoi, which has been invoked most frequently, though not exclusively, in Con- nection with succession. The problem arises from the fact that in a given situation connected with two or. more countries, the laws of those countries may be different not only as regards their. domestic rules,; but 'Also -as regards their conflict rules. If a. court in X, in accordance with a conflict rule' -of the forum, has selected the law of some other country, Y, as . the proper law with regard to a particular juridical question arising from the factual situation, and arrives at the stage of applying the law of Y,2 the court might do any one of three things. Firstly, it might reject or ignore the doctrine of the renvoi and apply simply the domestic rulee3 of the law of Y, without regard to the conflict rules of that law, that is, without regard to any possible reference back (renvoi) from the law of Y to the law of X or forward to the law of a third country, .Z. Secondly, it might adopt a theory of partial renvoi, that is, it might apply the conflict rules of the law, of Y to the extent of accepting a reference back from .the law of Y, and consequently apply the domestic rules of the law of X, without considering what, if any, theory of the renvoi prevails in the law of Y. -
Drafting National Legislation on Conflict of Laws: the Swiss Experience
DRAFTING NATIONAL LEGISLATION ON CONFLICT OF LAWS: THE SWISS EXPERIENCE FRANK VISCHER* I WHY A CODIFICATION OF CONFLICT OF LAWS IN SWITZERLAND? Debate continues whether conflict of laws is a suitable subject for legisla- tion. To codify conflict of laws in comprehensive legislation in the late 20th century may even be regarded as an anachronistic undertaking. David Cavers' preoccupation has been how the pursuit of justice in the individual case and ease and certainty can be combined in prefixed rules.' His careful investigation of old and new experiments with codification, focusing specifically on that point, convinced him that "the persistent reluctance of American conflicts scholars to advocate legislative solutions" was justified. 2 It therefore requires some explanation why the Swiss Government, follow- ing examples in neighboring States, entrusted to a commission the task of presenting to the Parliament draft legislation covering the whole field of con- flict of laws. Although I never hid my skepticism whether for all fields of law a legislative solution is superior to a judicial approach,3 I had the honor of being nominated chairman of this Commission, consisting of all conflicts specialists in Switzerland. But since undertaking this task, and with the de- velopment of the draft which will be published early in 1978, I became more and more convinced of the merits of such a joint effort requiring concentra- tion on each problem until a suitable solution was found. I became aware how much more difficult the task of the legislator is in comparison with that of the scholar reviewing the work afterwards. International issues have increased greatly in the last decades. -
Result-Selectivism in Conflicts Law* Symeon C. Symeonides
WLR46-1_FINAL_SYMEONIDES FIX 12/16/2009 9:38 AM RESULT-SELECTIVISM IN CONFLICTS LAW* SYMEON C. SYMEONIDES** I. INTRODUCTION A. The Classical View: “Conflicts Justice” The classical, traditional view of the law of conflict of laws, going at least as far back as Savigny and Story,1 is grounded on the basic premise that the function of conflicts law is to ensure that each multistate legal dispute is resolved according to the law of the state that has the closest or otherwise most ―appropriate‖ relationship with that dispute. Opinions on defining and especially measuring the ―propriety‖ of such a relationship have differed over the years from one legal system to another and from one subject to the next. Despite such differences, however, all versions of the classical school have remained preoccupied with choosing the proper state to supply the applicable law, rather than directly searching for the proper law, much less the proper result. Indeed, the implicit—if not explicit—assumption of the classical school is that, in the great majority of cases, the law of the proper state is the proper law. But in this context, propriety is defined not in * Copyright 2009 by Symeon C. Symeonides. ** Dean and Alex L. Parks Distinguished Professor of Law, Willamette University College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.) Univ. of Thessaloniki; LL.M., S.J.D. Harvard University. 1. See 8 FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS (1849), translated in WILLIAM GUTHRIE, PRIVATE INTERNATIONAL LAW, A TREATISE ON THE CONFLICT OF LAWS AND THE LIMITS OF THEIR OPERATION IN RESPECT OF PLACE AND TIME (1st ed. -
Stare Decisis
1974] A PROPER LAW OF TORTS 101 A. PROPER LAW OF TORTS IN THE CONFLICT OF LAWS* PETER J. M. LOWN** The subfect examined by this thesis is the conflicts rules which should be applied to determine liability in tort actions, and the question of whether or not a "proper law" approach could be adopted in this particular area. It is submitted, in Section I, that changing circumstances and changing theoretical bases for conflict of laws, are reasons for a fresh look at the area of torts in the conflict of laws. Moreover it is submitted, in Section II, that such a fresh look should be firmly based on funda mental policies of conflict of laws generally, such as the absence of forum-shopping, the convenience of the parties and the achieving of a uniform result whatever the forum of a particular action, The existing rules are examined in the light of their application to the varying circumstances which can arise in tort actions. In addition a critical examination of the existing rules is attempted, in respect of the require ments of identifying the locus delicti, and whether the existing rules relate to choice of law or furisdictional questions. The "prorer law" concept is suggested as a solution to the problems arising from this critica examination, and is buttressed by the operation and use of such a concept in other areas of the law, such as contracts and recognition of foreign divorce decrees. Since the "proper law" approach has been adopted in the United States, it is necessary to examine the experience in those jurisdictions. -
The Dimensions of Public Policy in Private International Law
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UCL Discovery The Dimensions of Public Policy in Private International Law Alex Mills* Accepted version: Published in (2008) 4 Journal of Private International Law 201 1 The problem of public policy in private international law National courts always retain the power to refuse to apply a foreign law or recognise or enforce a foreign judgment on the grounds of inconsistency with public policy. The law which would ordinarily be applicable under choice of law rules may, for example, be denied application where it is “manifestly incompatible with the public policy (‘ordre public’) of the forum”1, and a foreign judgment may be refused recognition on the grounds that, for example, “such recognition is manifestly contrary to public policy in the [state] in which recognition is sought”2. The existence of such a discretion is recognised in common law rules, embodied in statutory codifications of private international law3, including those operating between European states otherwise bound by principles of mutual trust, and is a standard feature of international conventions on private international law4. It has even been suggested that it is a general principle of law which can thus be implied in private international law treaties which are silent on the issue5. The public policy exception is not only ubiquitous6, but also a fundamentally important element of modern private international law. As a ‘safety net’ to choice of law rules and rules governing the recognition and enforcement of foreign judgments, it is a doctrine which crucially defines the outer limits of the ‘tolerance of difference’ implicit in those rules7. -
In Polish: “Prawo Prywatne Mi Ędzynarodowe” ) Is a Legal Discipline Defined by Polish Scholars Either in a Narrow Or a Wider Sense
Mateusz Pilich, Ph.D. CONCISE INTRODUCTION TO POLISH PRIVATE INTERNATIONAL LAW Private international law (in Polish: “prawo prywatne mi ędzynarodowe” ) is a legal discipline defined by Polish scholars either in a narrow or a wider sense. I. Narrowly defined (definition by method) The branch of law responsible for designating the law applicable to certain relationships, cases and situations with a private law dimension (e.g. marriages, contracts, torts/delicts, adoptions and successions) not confined to the competence of just one State (otherwise called ‘international’ or ‘cross-border’ private-law situations). Its only function is designating the law, so it brings, theoretically, no substantive decisions with it, merely pointing at the competent law to remove any potential conflict, whether positive or negative (German: Verweisungsrecht, Kollisionsrecht; English: the law of conflict of laws, conflicts law ); it contains only indirect rules of law ( conflicts rules ). In Poland, the latter are codified (see below). II. Widerly defined (definition by function) The branch of law responsible for regulating any ‘international’ or cross-border private law relationships, whatever the method applied. It contains both the rules of the PIL in the narrow sense (conflicts rules) and the provisions of civil and commercial law (substantive law rules) specifically governing cross-border situations, e.g. contracts for the international sale and transport of goods; international cheques, bills of exchange and promissory notes; and international successions. The latter are usually generated by international legislation such as, for instance, the UN Convention on Contracts for the International Sale of Goods, signed in Vienna on 30 April 1980 (abbreviated as: CISG ); however, local law rules of this type can also exist ( law of aliens). -
Choice of Law, Jurisdiction and ADR Clauses
Choice of law, jurisdiction and ADR clauses Choice of law, jurisdiction and ADR clauses 6th annual Contract Law Conference 26-28 February 2008 John Levingston1 Contents Abstract ...........................................................................................................................2 Introduction ......................................................................................................................2 Application to contracts and other things .............................................................................3 Contracts, arrangements and understandings..................................................................3 Bailment (on terms).......................................................................................................4 Tort..............................................................................................................................4 Elements to be considered.............................................................................................4 1 Choice of governing law.............................................................................................5 Statute .........................................................................................................................7 Express choice .............................................................................................................7 Implied choice of law .....................................................................................................8 Law of the forum, -
Choice of Law and the Doctrine of Renvoi
No. 3] Choice of Law and the Doctrine of Renvoi Stanley B. Stein * If a central object of our legal system is to provide equal justice to all who come before our courts, then it is necessary to develop principles of law so that, in so far as possible, similar cases will lead to similar decisions. This requirement of uniformity and con- sistency runs through all branches of law, but the problems which it generates become particularly acute in those cases which may require the application of rules of law that are foreign to our courts. In cases having elements that connect them with other jurisdictions, one of the questions that arises is whether foreign rules of law should be reflected in the decision of the court, and if so, to what extent. In essence this is a question of choice of law. This paper will seek to examine the choice of law problem. This will involve a brief discussion of "characterization" and its relationship to the choice of law, a critical examination of the renvoi doctrine, and finally, some suggestions towards a reform- ulation of choice of law concepts. 1. Characterization Once a court has decided to accept jurisdiction in a case, it will normally take into consideration the foreign elements raised by any of the facts. According to Graveson, to ignore them, "would make a travesty of justice".' Most courts will therefore refer to the appropriate foreign system of law whenever they are asked to attach legal consequences to a situation that has been created under foreign law. -
New Private International Law in Korea 267 New Private International Law in Korea
〔Kyung-Han Sohn 〕 New Private International Law in Korea 267 New Private International Law in Korea Kyung-Han Sohn *傘* I Introduction The “Sub-Oi-Sa-Beob ”( Conflict of Laws Act of Korea). was enacted on January January 15, 1962 with no major changes until the Amendment of April 7, 2001. 2001. The purpose of the Amendment is to update the old law by incorporat- ing ing recent developments in Korean and international conflict of laws princi- ples. ples. The Amendment was proposed by the Ministry of Justice of Korea and passed passed the National Assembly, e宜ective as of July 1, 2001. The new law is renamed the “Kuk-J e-Sa-Beob ”( Private International Law Act Act or the Conflict of Laws Act, ("new CLA ”) ) better defines the areas which were not su 任iciently addressed in the original act. such as jurisdiction, capac- ity ity to have rights, legitimation. legal person. intellectual property, agency, means of transportation. res in transitu, and security interest in claims. The new CLA also amends some provisions1u which may have been contrary to the the constitutional principle of gender equality. In addition, the new CLA adopts adopts the “Most Closely Connected Country ” rule in determining the gov- erning erning law and uses the concept of the “Habitual Residence ” as a connecting factor. factor. While the CLA broadens party autonomy, it also incorporates provi- sions sions to protect consumers and workers with weak societal and low eco ・ nomic nomic status. Also. the CLA narrowly defines the scope of renvoi which al- lows lows only remission but does not allow transmission in most cases.