The following discussion seeks to trace the origin of the concept of conflict of laws from its

beginnings as far back to the royal decrees of Ptolemies 1of ancient Egypt to the Roman Empire
then to its late development in England and finally to its emergence as an area of law in Ghana.
The second part of the paper, on the other hand, seeks to discuss the various philosophies and
theories underpinning conflict of laws.
Lord Nichols of Birkenhead in the case of Kuwait Airways Corporation V Iraqi Airways Co
2
stated by way of definition of the concept of conflict of laws that Conflict of Laws
jurisprudence is concerned essentially with the just disposal of proceedings having a foreign
element. The jurisprudence is founded on the recognition that in proceedings having connections
with more than one country an issue brought before a court in one country may be more
appropriately decided by reference to the laws of another country even though those laws are
different from the law of the forum court.
It is well established that conflict of laws is necessary as cases involving foreign elements crop
up from time to time due to the increase in the relations between persons of different nations. It
is necessary to trace the historical development of conflict of laws to better understand the nature
of conflict of laws and the various rules associated with it.
H. Lewald in Conflicts de Lois dans le Monde Grec et Romain 3suggested that the first
instance of conflict of laws rules can be traced back to the royal decrees of the Ptolemies which
included contracts between Greeks who had established colonies in Egypt and Egyptians.
According to these documents- which were discovered in ancient burial grounds- if the contract
was in Greek form, the contract should be tried before the chrematists(the Greek courts) and if
in Egyptian form before the laocrites, the native courts in accordance with the laws of Egypt.
Yntema4 states that conflict of laws is a sophisticated technique that took centuries to develop
and that its advancement appeared with the renaissance of legal studies in the middle ages at a
time when commerce cut across a complex maze of personal law and emergent territorial
jurisdictions and produced situations in which the parties and sometimes the court as well each
had a different law.
Generally, it is agreed by most scholars that the history of conflict of laws can be traced back to
the Roman Empire which had conflicting territorial laws due to the fact that the empire was
segmented into a number of urban communities each of which had its own jurisdiction and to
some extent its own system of internal law. The bond of connection was either citizenship or
domicile. Citizenship resulted from origo5, adoption, manumission or election. Domicile meant
1

The Ptolemies were rulers of ancient Egypt from 304-30 BC.

[2002] UKHL 19.
3
30 Archives de Droit Prives [1946] p. 49. Cited by Hessel E. Yntema The Historic Bases of Private International
Law[1953] 2 Am.J of Comp. Law p.297.
4
Hessel E. Yntema The Historic Bases of Private International Law[1953] 2 Am.J of Comp. Law p.297.
5
A person had his origo in the place to which his father or if illegitimate to which his mother belonged.
2

the relation between a man and that urban community he had chosen as his permanent abode. As
such a person born in one place, adopted in another, and domiciled in another was subject to
several jurisdictions since he could be sued in the urban community of which he is a citizen or
where he is domiciled6. This was one early manifestation of a conflict of laws problem.
However, in earlier times because legal order was intimately connected with actual or supposed
kinship groups and was part of the peculiar religious and social structure of the particular
community, law was inalienably personal.7The fall of the Roman Empire also facilitated the use
of personal law. There were however exceptions to the system of using personal law as criminal
law and canon law were of universal application. Also, personal law did not really apply in cases
concerning contracts.8 Furthermore, with personal law there was a conflict of having to choose
between the law of the place of domicile and the law of the place of citizenship.
The development of feudalism around the 10th century gave way to a system of separate
territorial laws. Feudalism came with its own problems as it recognized no other law but the law
of the land. However, in some areas, people became connected not by race or subjection to a
common feudal over lord but by residence in the same city. This led to the rise of independent
cities that had their own legal systems apart from the Roman law.
Cheshire and North 9states that it is the diversity in municipal law combined with commerce
between cities that allowed for the recognition of alien laws and gave rise to conflict of laws.
Steps were taken in the 13th century to formulate new rules as the system of feudalism became
impracticable in areas of increased commercial activity. Yntema suggests that this development
of conflict of laws occasioned a breach of two concepts that were exclusive to prior legal
thinking namely: law is personal and each court applies its own law. During this era of the
introduction of elements of conflict of laws, the works of Aldricus10, Accursius11 and Bartolus12
were instrumental.13
The statute theory was later developed and its aim was to resolve conflict of laws issues by using
statutes. It was mainly developed in France and Netherlands. The English legal system on the
other hand, initially paid very little attention to conflict of laws until much later. Professor Sack,
in Conflict of Laws in the History of English Law, in Law: A Century of Progress, 18356

Savigny, The Conflict of Laws Gutheries translation sec 351,p45.

Yntema. ibid.
8
Cheshire and North, Private International Law 12th Ed (1999).
9
Ibid.
10
He proposed that in cases with conflict of laws, the judge in his discretion should apply the more effective and
more useful law.
11
It is believed he added a useful commentary to the Glossa Cunctos Populos (C.1,1,1), the famous initial text of
the Codex of Justinian. The addition argued that if a citizen of Bologna be sued in Modena, he is not to be judged
according to the statutes of Modena to which he is not subject.
12
(1314-57). Described by Woolf, as father of Private International Law in Privat-und Strafrechts bis Bartolus
[1916] p75.
13
Yntema, ibid.
7

193514 points out that the reason for the little attention to conflict of laws by the English legal
system is; unlike other countries on the continent that had intra-national conflicts due to different
legal systems existing in one territory, of a single nation, the whole of England had been brought
under the sway of a single common law.
The jury system could also be said to a contributing factor to the late development of conflict of
laws in England. In those times the jury was summoned from the place where the operative facts
occurred as the jury was to decide based on facts. As such the problem here was if the case
contained foreign elements, the jury could not be summoned by the sheriff from a foreign
country. A court was established for foreigners by the King to hear cases of foreigners who had
been invited to England and were under the Kings protection. The influx of cases with foreign
elements came when English traders extended their commercial activities overseas. However,
these cases centered on the law of merchants which was of a universally binding nature and did
not encompass the application of foreign law at variance with English law15.
The Common law courts later began to compete for jurisdiction for conflict of law cases when
the rule that the jury rely on personal knowledge was replaced by the rule that the jury could rely
on the testimonies of witnesses. When choice of law eventually became a problem, the English
courts became reluctant to entertain such actions and required that such cases be tried by the
appropriate court abroad. This was however accompanied with the readiness to enforce those
foreign judgments in England.
The first attempts taken by the English courts to establish conflict of laws in England as an area
of law were expressed in Robinson v. Bland 16where the courts established that with contracts the
law applicable to govern the contract is the law intended by the parties. Another landmark case
which established a rule in conflict of laws is Scrimshire v. Scrimshire 17where the court held
that the law of the place of celebration governs the formal validity of marriage.
Generally, it can be observed that the method of approaching conflict of laws adopted by the
English courts is attempting to decide each case according to the legal system it seems most
naturally to belong to18.
There has been no systematic account of the origin and development of conflict of laws as an
area of law in Ghana. Oppong19 however submits that the origin of conflict of laws in Ghana can
be attributed to the adoption of the Supreme Court Ordinance f 1876. The Ordinance firstly made
the common law, the doctrines of equity and statutes of general application applicable in

14

Vol III pp. 342-454.

Cheshire and North. Ibid.
16
[1760] 1 Wm Bl 234, 2 burr 1077
17
[1752] 2 Hag Con 395.
18
This method was developed by Savigny, a German jurist.
19
Prof. Dr. R.F. Oppong, Ghana [2010] p.17
15

Ghana.20 This meant that English rules could be used in resolving conflict of laws issues.
Second, the ordinance allowed the use of customary law to the extent that it was not repugnant
to natural justice, equity and good conscience21. This resulted in an internal conflict of laws
problem between received English law and customary law. Oppong states that the history of
private international law in Ghana is a history of a subject conceived in conflict avoidance rules
and practices, developed in an internal conflict of laws setting and, with time, nurtured into a
body of private international law rules.22

The long history of conflict of laws is buttressed by an equally complex system of theories and
philosophical underpinnings. Different writers have expressed different ways of classifying these
theoretical bases.
J.G. Castel23, classifies the theories into two broad sectors: traditional doctrines of conflict of
laws and current doctrines of conflict of laws.
Traditional Doctrines of Conflict of laws
Castel groups these into three main categories: the internationalists, the neo-statutists and the
territorialists.
(I)

The Internationalists

He discusses that the internationalists maintain that foreign law is applied by the forum on the
basis that conflict of laws rules are international customary rules which are accepted by all
civilized nations as binding on them. They posit that conflict of laws rules derive their authority
from the law of nations and as such are outside and above local laws. However, on the other
hand, it can be argued that the range of intra-national and national systems upon which conflict
of laws is based is clear evidence against a universal system. One significant characteristic of
conflict of laws as opposed to public international law is the lack of a general set of rules with a
universal form of application.
(II)

The Neo-Statutists

They suggest that the general principle underlying conflict of laws rules is personal statute which
manifests itself with the concepts of domicile or nationality depending on the legal system. Their
basis for this is that a persons domicile or nationality follows him wherever he goes and governs
his status and his acts. As such, personal statute is extra- territorial in its application. However,
Castel argues that this theory is flawed in that in certain circumstances such as contractual
20

Supreme Court Ordinance of 1876, s.14

Ibid., s. 19.
22
Oppong, Ghana [2010] p.18.
23
Conflict of Laws: Cases, Notes and Material
21

relationships or real property matters, personal law does not govern and also where the court
basis its decision on public policy and has to substitute its own law, it uses real statute , which is
territorial in its application as opposed to personal statute.
(III)

The Territorialists

They consider conflict of laws rules to be part of the domestic legal system. They believe that
local laws bind all persons (citizen or alien) and property within its territory. The argument here
is, if the laws of territory A. are incompatible with the laws of territory B., where the subjects of
territory A. live, then the laws of territory A. cannot be enforced in territory B. as such although
a state has the right to bind its subject everywhere, it only has the right to exercise sovereignty
over them and not the right to compel or require obedience to such laws on the part of other
nations24. The foundation of conflict of laws rules that apply arise from mutual interest, utility,
from a sense of inconvenience that would result from a contrary doctrine and from a sort of
moral necessity to do justice in order that justice may be done in return.25
Three theories have been advance to explain why in a given situation the foreign law will be
received in contravention to the principle of territoriality. First of these is to ensure comity
between nations.26 Second is to ensure the enforcement of vested or acquired rights. And lastly
foreign law will be received based on the concept of local rights27.
Current Doctrines of Conflict of Laws
(I)

Jurisdictional Principle

This theory suggests that the basis on which to explain many decisions in the field of conflicts of
laws is to recognize the fact that the courts are guided by policy considerations which should be
made as clear and explicit as possible in formally stated rules. This principle suggests that the
rationale for conflict of laws must be policy centered.

(II)

Governmental Interests and Policies and Pre-eminence of the Lex Fori

It suggests that in applying conflict of laws rules the forum must firstly examine government
policy and apply it to the case with foreign elements in order to effectuate legislative purpose.
The principle also allows for the examination of the policy expressed by the foreign law and also
a determination of whether the foreign state has interest in the application of its policy. Currie

24

Story, Commentaries on the Conflict of Laws [1834] Ch. 20.

Story, Commentaries on the Conflict of Laws [1834] Ch. 23
26
However jurists such as Livermore(Nadelmann,Festagabe fur Max Gutzwiller [1959] p.270) have stated that
Comity is a matter for sovereigns and not for judges required to decide a case according to the rights of the parties
27
The theory of acquired rights and local rights will be discussed subsequently.
25

28

suggests that in making these determinations the court should employ the ordinary process of
construction and interpretation. In this case the choice of law rule is not concerned with the
course the court should adopt but with what will further the interest of a particular state.
Cheshire and North 29suggests a different way of characterizing the theories. Four theories are
identified: the theory of acquired or vested rights; local law theory; the principles under the
American Revolution system and the English approach.
(I)Theory of Acquired or Vested Rights 30
It originated with Dutch jurist Huber31 and was elaborated by Dicey32 and Beale33. This theory is
based on the principle of territoriality which suggests that a court must ensure that all its
decisions are governed by its territorial law. The theory suggests that a court does not give effect
to foreign law itself in the application of rules but it merely gives effect to the rights created
under foreign law. In Dalrymple v. Dalrymple34, it was held that the only principle that was
applicable to the case was that the validity of the marriage rights had to be tried by reference to
the law of the country where they had their origin. This was an application of the theory.
The theory has been heavily criticized although it stresses on the protection of rights. Professor
Willis L.M. Reese stated that the theory of vested rights is dogmatic and doctrinaire and is
professor Beales panacea.35 Carswell also stated that to protect a right is to give effect to the
legal system to which it owes its origin, for a right is not a self-evident fact, but a conclusion of
law.36 The theory has also been said to assume a very narrow definition of territorial law and it
has also been described as failing to take into account underlying policy considerations37.
Cheshire and North conclude that the theory of vested rights is inadequate and analytically
defective. It is however conceded that the theory aided in the development of conflict of laws
rules as it mainly emphasized the need to find solutions to conflict of laws problems and protect
rights.
(II)

28

Local Law Theory

Currie, Notes on Methods and Objectives in the Conflict of Laws [1959], 8 Duke L.J. 171, 177-178)
Cheshire and North, Private International Law 13th Ed (1999).
30
This is the same as the principle discussed by Castel under territorialism as discussed above.
31
De Conflict Legum
32
Conflict of Laws 5th Ed. Pp 17-43
33
Conflict of Laws pp. 1967-1969.
34
[1811] 2 Hag Con 54
35
[1965] 16 U. T.L.J. 228 at 229.
36
[1959] 8 ICLA 268
37
Castel. Ibid.
29

This theory was propounded by Cook38. The theory suggests that the forum does not apply
foreign law but, applying its own law, can adopt rules identical with or similar to those of foreign
law. The forum as such does not enforce a foreign right but a right created by its own law. Here
the court ascertains the domestic rules of a foreign law which would be applied domestically to a
similar domestic case without reference to its conflict of law rules. It then incorporates the
foreign domestic rule and consequently does not infringe on the principle of territoriality. The
rule of law so incorporated into the law of the forum is called the domestic rule of the foreign
state. This is the law applied by the forum in resolving the issue. The forum does not refer to
foreign law again. However, Castel suggests that in applying this theory and in appropriate cases,
the forum consults foreign law and models or formulates rules based on the foreign rules to an
extent dictated by considerations of special circumstances, convenience and practical
expediency. On the other hand, the theory has been criticized as being a sterile truism as it
affords no basis for the system of development of conflict of laws.39 The theory has also been
said to be destructive without being constructive as it denies the existence of a general principle
justifying the solution of an issue arising in the municipal courts by reference to a foreign law
rule40.
(III)

American Revolution

The American approach to resolving conflict of laws has two general approaches. First is the use
of a rule selection system where the actual rule is considered when applying choice of rules as
opposed to the English system which adopts the jurisdiction selection approach without
consideration of what the rules actually are. The second is the determination of whether the
conflict is a true conflict or a false conflict. In situations where the laws of the interested states
are different and produce different results then there is a true conflict. On the other hand, in
situations where the laws of the interested states do not conflict either because only one state is
interested in having its laws applied to the facts of the case 41or because the laws of several states
are compatible42 then there is a false conflict. A third possibility has been described as the no
interest case 43where a conflict of decisions allows for different laws from different states to be
applied but neither state has an interest in its law being applied44.
The court determines if there is a true conflict and after that there is a rule selection process. This
rule selection process is based on various philosophies. First is the government interest analysis
which suggests that the rule is based on the policies of the states involved and which policy any
of the states are interested in implementing. Second is the theory of comparative impairment
38

The Logical and Legal Bases of the Conflict of Laws[1924] 33 Yale L.J. 457 and An Unpublished Chapter of
the Logical and Legal Bases of the Conflict of Laws[1943] 3 Ill.L.Rev. 418.
39
Yntema [1953] 2 AJCL 297 at 317.
40
Schmittoff A Textbook on the English Conflict of Laws 3 rd Ed.[1954] p.34.
41
Babcock v. Jackson 12 NY 2d 473
42
Scheer v. Rockne Motors Corpn [1934] 68 F 2d 94
43
Currie, Selected Essays on the Conflict of Laws[1963] pp.152-156
44
Hurtado v. Superior Court [1974] 522 P 2d 666.

45

which requires the court to determine which of the conflicting states interests would be more
impaired if its policy were subordinated to the policy of the other state. It attempts to determine
the relative commitment of the respective states to the laws involved. Third is the principles of
preference 46theory which suggests that the courts develop broad principles of preference which
would either reflect relevant multistate policies or provide the basis for a reasonable
accommodation of the laws conflicting purposes. It suggests a generalized approach applicable
to all cases having a general pattern of law and fact. Finally, the interpretation of forum policy
47
theory suggests that a court in searching for the appropriate conflict of laws rule should give
pre-eminence to the law of the forum. The theory suggests that reference to foreign law should
only be made in exceptional circumstances where application of the law of the forum would be
unfair to the parties or contrary to their intention.
(IV)

The English Approach

The English choice of law rules have been perceived to be practical and to promote the purpose
of the law which are justice and convenience. Hence the English court would enforce foreign law
if the foreign law would provide a solution more just, convenient and more in accord with the
expectations of the parties than the internal laws of England48.
Conclusion
A careful analysis and consideration of the genesis and philosophies underpinning the whole
legal concept that is conflict of laws seems to come to an inevitable conclusion that the area of
law was made and developed in such a way as to promote the ends of justice and also
convenience especially in cases where justice and preferable solutions seem like far-fetched
ideas.

45

First propounded by Baxter [1969] 16 Stan LR 1.

Propounded by Cavers [1933] 47 Harv. L.R. 173.
47
Suggested by Ehrenzweig A Treatise on the Conflict of Laws [1962]
48
Cheshire and North. Ibid.
46