CONFLICTS
the domicile or nationality of the
CHOICE OF LAW
 Process necessary to reconcile the differences between the laws of different
legal jurisdictions
Sequence of events in conflicts cases
1. Jurisdiction. The court selected by the plaintiff must decide both whether it has the
jurisdiction to hear the case and, if it has, whether another forum is more suitable
(the forum non conveniens issue relates to the problem of forum shopping) for the
disposition of the case.
2. Recognition of foreign judgments. Even where a conflict of laws exists, the court
will recognize the validity of a foreign judgment in most cases. Under international
law, this authority is part of the doctrine of comity. The court will invoke comity by its
discretion and will usually look to two factors before using its discretionary powers:
did the foreign court have jurisdiction, and were fair procedures used in adjudicating
the case?
3. Characterization. The court then allocates each aspect of the case as pleaded to its
appropriate legal classification. Each such classification has its own choice of law
rules but distinguishing between procedural and substantive rules requires care.
4. The court then applies the relevant choice of law rules.
A. Correlation between jurisdiction and choice of law
outcome of choice of law require the courts of one jurisdiction to apply the law of a different
jurisdiction in lawsuits arising from, family law, tort, or contract.
Status - Self-evidently, unless the proposed litigant has legal personality, there will be no
jurisdiction.
Contracts- questions as to whether a contract is valid may depend on the capacity of the parties
to enter into a contract. This could be decided by reference to the lex domicilii, lex patriae or
habitual residence of the parties, or for policy reasons, by reference to the lex loci
contractus (where the contract was made). But, if the contract was made electronically, where
the contract was actually made must first be decided either by the lex fori or the putative proper
law depending on the forum rules.
Tort - likely to be the law of the place where the key elements of the "wrong" were performed or
occurred (the lex loci delicti commissi).
Family law- As to marriage, both formal and common law, the general rule is the lex loci
celebrationis determines its validity, i.e. the law of the place where the marriage is celebrated,
unless the purpose of the marriage offends a public policy of the domicile/nationality/habitual
residence state.
Property- The rule for immovable property (called real property in common law states) is that
the lex situs applies to all questions of title. Movable property (called personal property in
common law states) claims are governed by the law of the state in which the property is located
at the time the rights are supposedly created.
Trusts and succession- Where an inter vivos or testamentary trust includes immovables,
reference must be made to the lex situs on all aspects relating to title and land use. Similarly,
title to movables including choses in action, should be determined by lex situs, i.e. the law of
place where each item is located at the time the trust is created.
B. Approaches to choice of law
 Traditional approach- looks to territorial factors, e.g.
parties, where the components comprising each cause of action occurred, where any
relevant assets, whether movable or immovable, are located, etc., and chooses the
law or laws that have the greatest connection to the cause(s) of action
 Modern approach- Since characterisation and the choice of law rules were operating
inflexiblly,[dubious – discuss] the solution has been to allow the growth of judicial discretion
within both parts of the system. Hence, most legal systems [which?] have opted for what
English law calls the proper law approach: the identification and application of the law
that has the closest connection with the cause(s) of action. It is accepted that the
words have the same apparent spirit as the older approach, which requires some
caution in their evaluation.In theory, flexibility will preserve an international outlook and
multilateral approach by the courts and in most places, the results are encouraging.
PROBLEM OF CHARACTERIZATION
conflicts situation or problem may be characterized by the lex fori (local laws) different from the
characterization of the lex causae (law of the state with which the act or transaction is most
closely connected). Lex fori might regard the problem as crime, while lex causae considers it
only as a tort.
GIBBS V GOVT OF PI
A Californian wife dies. Her Californian husband claims the entire properties acquired by the
spouses following California law. Under the PH law, this is a problem in succession so that the
inheritance taxes should be paid by the husband as the lands were located in PH.
 The SC held that the properties inherited by the husband were subject to inheritance
taxes, categorizing the problem as one of succession.
A. Characterization and Single Aspect Method
Primary Characterization- to put upon the facts a legal complexion, or allot them to a legal
category, which will have a choice of law rule available for the disposition of the case.
Secondary characterization- refer to any additional process of characterization which may
become necessary after the forum has decided to apply the law of another jurisdiction as the
result of the primary determination.
 Delimiting the problem as defined by the law of the foreign juris-
diction.
 For example, if the problem is primarily characterized as one of
property, it must be ascertained what principles the foreign
jurisdiction con- siders as included in the body of property law.
 (2) Subdividing the problem in the light of the necessities of the
for- eign jurisdiction.
 Further characterizing the e~tireproblem, in order to fit it into the
domestic law of the foreign jurisdiction
B. Depecage
· different issues within a case may be governed by the laws of different
states. In common law countries dépeçage usually means a single contract
which provides that different parts of the contract shall be governed by
different laws.