LAW 454 CONFLICTS OF LAWS Acorn CHAPTER 1—CHARACTERIZATION 3 Basic Questions: A. Jurisdiction: which court has jurisdiction over the matter? Which court will take jurisdiction over the matter? forum non conveniens –can take jurisdiction but under circs of the case there is another forum that is more appropriate in the interest of justice to hear the case B. Choice of Law: which law governs the matter? C. Enforcement: will the judgment be enforceable in other jurisdictions Comity: recognition of one nation’s legal/executive/judicial acts by another -duty regard to international duty & convenience “Choice of Law Rule” -a rule that tells the court which law to apply given the nature of the subject matter -courts determine which law should apply by characterization of the issue lex fori : law of the forum hearing the case lex causae : law of the cause, law to apply once followed the choice of law rule lex situs: law of the place where the property is situated lex loci delicti: law of the place where the tort was committed lex loci celebrationis: law of the place where a marriage is celebrated lex loci contractus: law of the place where a contract was made lex domicilii : law of the place where a party is domiciled There are 7 choice of law rules: 1. torts governed by the place where the tort committed (lex loci delictii) 2. contracts governed by the law the parties intended 3. formalities of marriage are governed by the law of the place where the marriage was celebrated (lex loci celebrationis or lex loci contractus) -once applied with the requirements of getting married then the marriage is recognized in other jurisdictions 4. intrinsic validity of marriage is governed by the ante-nuptial domicile of the parties -ante = before the wedding where did you reside -cannot live in a place that doesn’t recognize same sex marriage and then elope to get a valid marriage 5. succession to movable property is governed by the law of the place where the deceased was domiciled (lex domicilii) 6. succession to immovable property is governed by the law of the place where property is situated (lex situs) 7. matrimonial property is governed by the law of the matrimonial domicile: the law of the place where the parties set up their matrimonial home after marrying (lex domicili) Characterization: -characterization of the question refers to the process whereby we decide which choice of law rule ought to be applied -always done on the basis of the law of the forum (lex fori) -but for immovable vs. movable the court looks to lex situs Hogg v. Provincial Tax Commissioner (1941 SKCA) F: deceased was domiciled in SK at the time of her death, she owned the rights of various mortgages on land which was situated in B.C. - Problem: the SK Succession Duties Act stated that any property devolving under the law of SK, estate taxes would be owed; SK felt that the mortgages constituted property devolving under the law of SK and therefore they were owed taxes I: In conflicts property is movable or immovable. In statute property is real or personal. Do they have to coincide? D: No, can be immovable in conflicts while domestically real property R: look to the lex situs to determine how the rule is applied, decision based on the laws of evidence, in B.C. distinction b/w moveable and immoveable property is very different from real and personal distinction, immoveable/moveable distinction which is a creature of Conflicts law, in this situation, mortgages are considered immoveable R: just b/c something is defined as moveable property in domestic law, doesn’t mean that it will be characterized as moveable property for the purposes of conflicts of laws o Money coming out of land has historically been classified as immoveable and ∴ mortgages would be classified as immoveable Results: once you decide mortgages are immoveable property, then they devolve under the law of lex situs and therefore , B.C. law is applied; in B.C., the tax commissioner is not able to tax estates ∴ SK was not entitled to the estate tax Pouliot v. Cloutier (1994 SCC) F: married in 1936 in NH, moved to QB, domicile of choice in QB, H made out a will leaving all property to his brother, H dies, W discovers she’s been disinherited, NH entitled her to ½ of H’s estate, no provision in QB, in QB once someone marries property becomes part of a community regime where the property each spouse owns independently, they now share equally with their spouse I: How to characertize this issue? D: this is a false conflict, deals with succession to movable property on death R: if characterize as matrimonial property then NH law applies, if characterize as a matter of succession to moveable property then look to domicile at the time of death so QB applies, look to the T’s domicile at the time of death, he was domiciled in QB law says you can’t will away all your property to someone other than your spouse. NOTE: when you get a false conflict in a case, it’s an indication that something has gone wrong Under QB law, the spouse already owns ½ of the property so it would be draconian to say you had to will the property to your spouse (the spouse already had ½!) What should be done? - had the Court characterized the issue they would have stated: this is about a wife wanting the property of her husband; given she is a wife, she will likely want something from her husband at the time of his death → this looks like a matrimonial property issue – property the wife believes she’s entitled to at the time of her husband’s death - if we decide it is an issue of matrimonial property then we find that we apply the law of the place the couple was married - we then should apply the whole of New Hampshire Law, and find that there is no false conflict 3 Principles of Proper Characterization: (1) Characterize the issue at its highest possible level of abstraction -not particular statute or rule in question. -forget about possible legal solutions in each jurisdiction (2) apply the whole of the legal system that the choice of law rule directs you to -do not apply only selective provisions. -look at the big picture (3) Consider matters of fairness when making the characterization -is one of the parties trying to avoid obligations which would be enforced under both competing legal systems? SUBSTANTIVE LAW OR PROCEDURAL RULES : Procedural Law: -machinery of the Court -used to enforce substantive rights (i.e. rules of evidence and Provincial Rules of Court) -lex fori -deals with enforcement and remedies -Court always applies its own procedural rules EVEN WHEN doing the substantive rules of another jurisdiction -never sits as a foreign court -remains true to own institutional identity Substantive Law: -everything else -i.e. the substantive law of contracts, property law, and torts -lex causae (law of the cause), it governs the dispute -choice of law rules direct us to this Leroux v. Brown (very old English case) NOTE: this case is the source of much confusion about the distinction b/t substance and procedure -characterized Statute of Frauds and procedural piece of legislation -distinction b/t rights and remedies -SOF is about remedies, but does not extinguish rights -“how to do it” = procedure (Prof says) -SOF is procedural vis a vis the creation of Ks -but this procedure is part of the substantive domestic law -it makes more sense to think of it as a substantive law -most compelling argument to characterize it to procedure is that it is akin to a rule of evidence, about how a K needs to be proved in the English courts -proof of the K requires writing Horseshoe Club v. Bath (1997 BCSC) F: BC Gaming Act provides that no suit can be brought to recover money lent for the purposes of gambling, no such provision in NV, B goes to Nevada, gambles, borrows money, racks up an enormous gambling debt, returns to BC, doesn’t repay, casino sues him in BC b/c that’s where he is, along with his assets, lex causae is Nevada, K said that it was to be governed by Nevada law I: Is this a substantive or procedural issue? D: this is a substantive, lex causae is NV R: everything took place in NV, governed by Nevada law where there is no provision like the BC Gaming Act, B tried to say that “no action shall be brought” should be getting rid of the remedy and not the right, wording looks like cant bring the action in BC, does not mean that no action exists, just that cannot get a remedy for it in BC R: clarifies that the difference for procedural/substantive issues is a remedies/rights, no longer a purely textual approach to interpreting substance/procedure distinction NOTE: our def is not very sympathetic -remember the 3 rd principle of characterization: fairness -this clearly effects rights as well as remedies and was intended to prohibit loans for gambling in BC, not an attempt to stop making loans in other jurisdictions Tolofson v. Jensen (1994 SCC) F: car accident in SK, ptf and def lived in BC, limitations period in SK expired, but still running in BC, ptf sues in BC, I: Is a limitations period a substantive issue? D: substantive, limitations strongly impact the rights of parties R: doesn’t make sense to say your action still exists and you just don’t have a remedy -this is a full on rights issue, no longer viewed as procedural (as in the past) -found the ptf was out of time *the court retroactively punts the ptf out of their action, in this case the ptf was relying on good law that the limitation period was a procedural issue -prof thinks this is an unfair decision Does it make sense to understand limitation periods as substantive? -at the outset of the litigation you don’t know what the lex causae is -it was contested as to what it would be -as a practical matter the ptf should be able to rely on limitation period on place where they are bringing the action b/c they don’t know where the lex causi will be -still a danger of forum shopping issue of characterization of procedural vs.