CONFLICT OF LAWS

I. Introduction A. Judgments another state/nation is the source of a judgment. Winner of that judgment wishes to have the judgment recognized and enforced by NY Courts, which will be the forum for the enforcement action B. Choice of Laws litigation filed in NY and the NY court must decide whether to a!!ly NY law to the controversy or some other state"s/country"s law. II. Judgments A. Recognition of Sister State Judgments #. $nder $% Constitution, &ed ' NY statute NY must recogni(e and enforce judgment issues by sister state a. Recognition obligation to covert sister state judgment into NY judgment b. Enforcement obligation of NY to use whatever mechanism to enforcement that judgment . !efenses to recognition and enforcement a. Lack of Personal Jurisdiction in state where judgment was awarded best defense if a!!licable) if %tate *"s judgment was default judgment +, didn"t a!!ear to defend case in %tate *-, , may challenge %tate *"s jurisdiction over him when default judgment is brought to NY for recognition ' enforcement +i- .f NY court decides %tate * had jurisdiction over B NY will recogni(e and enforce the judgment unless one of the other e/ce!tions a!!lies +ii- .f NY court decides %tate * N01 have jurisdiction over B NY will declare %tate *"s judgment void +%tate *"s judgment cannot be enforced against ,b. NY may deny/limit recognition of a %tate * judgment if %tate * itself would deny/limit the effect of its judgment NY will loo2 to see whether other state has enforced it. ". In#a$id !efenses a. Mistake of Law or Fact even though mista2e of law or fact in !roceeding before %tate *, NY must still recogni(e the outcome of the %tate * !roceeding +e.g. the forum to fi/ is on a!!eal in %tate *b. Public Policy +i- General Rule NY will recogni(e and enforce judgment even though underlying determinant violates !ublic !olicy +ii- Cautionary Note this is a losing argument +contrast with following !ublic !olicy argument for foreign country judgments%. Recognition of Foreign Countr& Judgments #. Comit& res!ect +overarching stand3. No Constitutional bligation governed by statute +!resum!tion that NY will recogni(e ' enforce4. Mandatory Non!Recognition a. N0 !ersonal jurisdiction over the , in the foreign country) b. , did N01 have full and fair o!!ortunity to defend 5. "iscretionary Non!Recognition6 a. 7ac2 of %ubject 8atter 9urisdiction in foreign country +discretionary matterb. Country * was a serious inconvenient venue for the , c. : agreed to resolve the dis!ute somewhere other than in the courts of Country * +e.g. arbitrationd. 9udgment violates the strong #ublic #olicy of NY NY can refuse recognition III. Choice of Law A. !omici$e #. $asic Princi#le every !erson has a domicile +domicile may occur by o!eration of law or by choice3. %y#es of "omicile6 a. Domicile of Origin &by o#eration of law' domicile at birth +i- ,omicile of the child"s !arents) 0; if only # !arent involved, the custodial !arent. +ii- N01<6 !erson"s domicile of origin remains her domicile until that domicile is changed either by o!eration of law or by choice. b. t(er "omiciles by #eration of Law +i- 8inors domicile may change if their !arents" domicile changes until they reach age of majority +ii- .ncom!etents retain/have domicile that they had !rior to their incom!etency c. Domicile of Choice ac=uiring a domicile of choice +' abandoning domicile of origin- re=uires6 +i- Physical presence in chosen state/country +tem!orary !resence will suffice if intention met-) AN, +ii- Intention to be domiciled +must manifest an intention to remain in new state/ country indefinitelyConflict of Laws '

Furt(er C(anges as long as he meets the !resence and intentionally re=uires, a !erson may change domicile multi!le times e. Multi#le "wellings when a !erson has more than # home, NY will a!!ly the following general rules +i- .f one is a !rinci!al home and the other a seasonal one, the !rinci!al home is normally the domicile +ii- .f both are !rinci!al homes, the first ac=uired normally is the domicile. %. (re$iminaries to Choice of Law Ana$&sis #. Commonalities in all choice of law issues6 a. 7aws of the 3 states must differ, and b. ,ifference must matters N01<6 no im!act on criminal law ' ta/ law 3. Identifying the Choices identifying which states" laws offer a !ermissible choice is a )!ste# #rocess6 a. Constitutiona$ Limitations !ermissible for NY to a!!ly own law> +i- Constitutional %tandard a!!lying due #rocess clause and full fait( and credit clause, for a choice of a state"s law to be constitutional, the state must have a significant contact or significant aggregation of contacts creating state interest such that the choice of its law is neither arbitrary nor fundamentally unfair +e.g. strong connection+ii- Note6 Constitution allows a choice but does not com!el it) NY could choose the NY rule but could a!!ly %tate *"s rules b. State Statutor& Limitations there may be state statutory limitations) NY court could not !ro!erly choose some other state"s laws even if were Constitutional to do so. C. N) a**roach to Choice of Law #. *ested Rig(ts &old rule' + identify a !articular event ' a!!ly the law of the state w(ere t(at e,ent occurred. 3. +o#ernment Interest Ana$&sis &current a##roac(' see2s to identify which state has the greatest interest in a!!lication of its law to the !articular case. a. 8ethodology6 +i- .dentify the com!eting state rules +ii- .dentify the !olicies that underlie those rules +iii- .dentify the contacts of the !arties +e.g. domicile- and transaction +2ey events underlying the lawsuitwith those states. +iv- As2 if t(e contacts wit( eac( state im#licate-trigger that state"s #olicies underlying its rules +a- .f yes that state has an interest in a!!lying its law +b- .f not that state has no interest in a!!lying its law b. Possible utcomes of Go,ernment .nterest /nalysis6 +i- !alse Conflict " only one state has an interest in a!!lying its law +NY court will choose the rule of the only interested state+ii- #rue Conflict " both states have an interest in a!!lying their law +hardest cases ' see below+iii- 0n#ro,ided!for!case + neither state has an interest +a!!ly the law of forum+iv- Disinterested !orum +.F 1 states2 rules mig(t be a##lied- interest analysis is conducted and it"s determined that the forum +NY- has no interest in a!!lying its law and there"s a true conflict between the other 3 states) NY court will either +#- a!!ly NY"s rule or +3- a!!ly rule judge thin2s best. ,. Choice of Law Ru$es in Tort 3 general ty!es of tort issues #. Conduct$%overning &Conduct$'egulating( 'ules where rules in conflict differ in defining a!!ro!riate level of conduct, NY courts will normally a!!ly the law of the place of the tort +usually the #lace of t(e in3ury3. Loss,Distri)uting/Loss$*llocating 'ules states may be in agreement as to wrongfulness of ,"s conduct but disagree as to conse4uences of that conduct ?!ost@conductA rules a. </am!les6 +i- Buest !assenger statutes NY allows !assenger to sue driver +other jurisdiction don"t+ii- All immunity rules inter@s!ousal immunity, charitable immunity, etc +iii- :ass on damages +iv- Cicarious liability rules owner/lessor of car can be held vicariously liable for negligent of driver b. NY a!!lies a modified government interest analysis through the +,eumeier 'ules-6 +i- ,eumeier ./ 5ame "omicile +a- : and , have same domicile, a!!ly law of that domicile) or +b- .f : and , are from different states, but on the issue both states have e/actly same rules +ii- ,eumeier .0 5#lit "omicile ,id the conduct t(at caused the accident or in3ury t(at resulted occur in the state of domicile of one of the !arties> @ .f yes, did that state"s law favor its domiciliary> .f so, a!!ly that state"s law Conflict of Laws

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+iii- ,eumeier .1 /ll t(er 5ituations, +a- NY !resum!tively a!!lies the law of t(e #lace of t(e accident rebuttable !resum!tion +b- 0ther situations6 @ 4 states +: and , domiciled in 3 diff states and tort in a third state-, @ 1ort actually touches both domicile states +,"s tortuous conduct occurred in his state, :"s injury occurred in her state+c- 0vercoming !resum!tion in favor of law of !lace of accident where another state"s !olicies will be severely im!aired if the law of the !lace of the accident is a!!lied Loss *llocation 2ummary in most cases, the Neumeier Rules boil down to this6 &i( If the parties are from the same domicile apply that law3 +ii- In all other situations apply the law of the place of the accident presumptively and then just mention ,eumeier 'ules.

-. Choice of Law in .s /3 45press Choice of Law Clause Contained in 6 a. .f e/ists, NY courts will a!!ly the chosen law, es!ecially if the law is chosen to govern construction of D :arties can choose a !articular state"s law, even if that state has no connection with the !arties or contractual !erformance, to govern things such as the stand of !erformance or e/cuse for non@ !erformance or the amount of damages b. But if the issue is one of validity of the D itself, the issue is harder NY courts enforce the choice of law clause +even when dealing with validity- unless6 +i- :arties and transaction have no connection with !lace chosen, 0; +ii- NY or %tate *"s law would otherwise a!!ly, AN, +iii- NY or %tate * have a materially greater interest than %tate Y, the state chosen in D 03 2pecial 'ules a. 6s governed )y 7CC $CC calls for recognition of the !arties" choice of law .& state chosen shows ' bears a reasonable relationshi! to !arties or the transaction and the !arties actually agreed to the clause b. ,8 %eneral O)ligations Law !arties to a D involving E3FG,GGG or more +including those covered by the $CC- may choose NY law to govern their D even though the !arties and the transaction have no connection with NY and NY courts will often enforce those clauses NY also !rovides that if +#- D is for 67 mill or more) ' +3- #arties (a,e c(osen N8 law) ' +4- !arties have submitted to N8 3urisdiction then NY courts must hear the case +can"t dismiss on forum non conveniens grounds- and a!!ly NY law even if there"s no other connection with the state +this trum!s other rules concerning choice of law rules". Choice of Law in A/sence of -0*ress Agreements a. *ested Rig(ts %(eory traditional rule com!rised of 3 !arts6 +i- .ssues of validity and effect of a D governed by law of the !lace of e/ecution of the D +ii- .ssues of !erformance governed by law of the !lace of !erformance b. Limited Go,ernment .nterest /nalysis !lays only a limited role in Ds choice of law) for most Ds, sim!ly no strong government !olicies at sta2e +i- N01<6 there are strong !olicy issues at sta2e where issues such as ca!acity of !arties +!articularly whether # !arty old enough-, adhesion issues c. 9odern 6 Choice of Law *pproach ?most significant relations(i# test9 or :grou#ing of ;s test9 or ?center of gra,ity testA But it"s all same test. +i- ,etermine rele,ant contacts wit( eac( state +include domicile of the !arties, !lace of negotiation of the D, !lace of e/ecution of the D, !lace of !erformance of the D+ii- Consider w(ic( state a##ears to (a,e t(e most significant contacts given the issue +<.g. if issue is one of !erformance, then !lace of !erformance gets more weight) if issue one of validity, then !lace of e/ecution and domicile of !arties seems im!ortant- but no clear answers 5. %!ecial Cases a. 0surious ;s +Ds that s!ecify an interest rate that"s too high under NY law- NY will sustain if valid under the law of any jurisdiction with reasonable relationshi! to the !arties and the transaction. b. /utomobile .nsurance Policies in actions between insured and insurer, #lace w(ere #olicy was issued is the source of the governing law. Choice of Law Ru$es in (ro*ert& +no government interests) no Neumeir ;ules7. .nter,i,os %ransactions a. Real Pro#erty 1Situs ru$e2 all as!ects governing and arising out of the conveyance of real !ro!erty are governed by the law of the situs +location- of the real !ro!erty b. Personal Pro#erty situs rule Conflict of Laws " &.

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;s to Con,ey "istinguis(ed +i- D to convey land is governed by Ds rules grou!ing of contacts test +ii- Conveyance is governed by situs law d. New 0CC Rule + law and filing system of the debtor"s location +residence or !lace of business- governs, rather then the situs of the secured chattel .n(eritance .ssues NY choice of law rules are largely statutory a. Real Pro#erty all as!ects of the testamentary and intestate devolution of real !ro!erty are determined by the law of the situs of the rea$ *ro*ert& +i- <*C<:1.0N if the real !ro!erty is located in N8, NY law will !rovide that the will is formally valid) it has been !ro!erly e/ecuted if it would be valid under the law of6 +i- NY) +ii- !lace of e/ecution at time of e/ec of the will) or +iii- domicile of decedent at time of e/ecution or at time of death +ii- 1his rule a!!lies 0N7Y .& the land is located in NY .f the land is elsewhere, a!!ly the law of !lace where land is located b. Personal Pro#erty +i- .ntestate 5uccession NY courts a!!ly law of decedent"s domicile at death &ii' %estamentary "is#osition +a- Beneral ;ule all issues concerning validity of a will dis!osing of !ersonal !ro!erty are to be determined by law of decedent"s domicile at death +b- <*C<:1.0N%6 @ Formal ,alidity whether will was !ro!erly e/ecuted, witnessed, etc. H if valid under law of NY H !lace of e/ec at time of e/ecution H domicile of decedent at e/ecution or at death @ Re,ocation or alteration6 law of domicile at time of revocation/alteration, not at time of death +c- Electing /gainst t(e <ill if a will of a non@domiciliary designates NY law, NY courts will a!!ly NY law to all !ro!erty located in the state) 1estator can do this and defeat otherwise a!!licable rule that !ersonal !ro!erty is governed by law of decedent"s domicile at death

+. Choice of Law Issues In#o$#ing 3atters of Fami$& #. Marriage a. Beneral ;ule if valid where celebrated, then valid everywhere including NY b. <*C<:1.0N% if marriage violates a strong !ublic !olicy of NY +i- incest, +ii- under age of majority, +iii- !olygamous <ven though NY does not recogni(e gay marriages, if valid in another state, NY will recogni(e at least in all !ro!erty matters 3. "i,orce issue of full faith and credit, not choice of law a. NY will recogni(e any divorce in which divorcing state had jurisdiction over the !arties/marriage b. Boverned by the law of :"s domicile 4. /limony governed by law of state that directed !ayment 5. C(ild 5u##ort-Custody entirely statutory 4. -0ce*tions A**$ica/$e to A$$ Categories #. (rocedura$ ru$es a!!ly law of the forum +which is NY-. a. Ci,il #ractice rules a!!ly C:7; +e.g. if %tate * gives longer !eriod of time for answers than NY, then NY a!!lies C:7;b. 2tatute of Limitations normally !rocedural so NY a!!lies own statute unless NY"s borrowing statute a!!lies, which a!!lies when6 : is +i- Non@NY resident, ' +ii- cause of action arose outside NY N01<6 .f /oth these re=uirements, :s may choose shorter of NY statute and statute of state where cause of action arose +what matters is residence, not domicilec. Contrast statute of repose +which e/tinguishes a cause of action- a!!lies even though NY"s %/7, which ran from date of his injury would"ve allowed the claim to !roceed 3. Foreign Law is Com#letely Contrary to t(e Forum2s Public Policy NY is free to by!ass that foreign law +a!!lies only if it would be dee!ly offensive for NY to a!!ly that law4. Foreign Law is Penal or %a= either a!!ly NY or e/tradite criminal to another jurisdiction +do N01 a!!ly another state/country"s !enal/ta/ lawConflict of Laws 5

CONFLICT OF LAWS -SSA) 67-STIONS

.. 67-STION 85 &> C MMERC./L P/PER' A. Which state"s guest statute should a!!ly in loss distribution rules in a tort case #. Court of a!!eals has rejected the old vested rights a!!roach which would mandate the automatic a!!lication of the law of the situs of the tort 3. Bovernment .nterest Analysis +ensure jurisdiction with greatest interest law a!!ly- +i- factual contacts of each jurisdiction, +ii- differing laws, +iii- underlying !olicies of each law, +iv- a!!ly the facts 4. Neumeir rules are a !roduct of the government interest analysis a. Iere, Neumeier Rule 1 + when a law of the situs does not benefit a citi(en of the situs, the law of the situs will control unless that would frustrate or significantly undermine an im!ortant !olicy of the outside jurisdiction 67-STION 85 &> N8 PR/C%.CE > FE"ER/L ?0R.5".C%. N' A. Neumeir ;ule # if !arties are from a !articular jurisdiction, then the law of that jurisdiction will a!!ly B. Neumeir ;ule 3 if !arties have different domiciles, and the tort occurred in the state of the domicile of one of the !arties, and that state favors its domiciliaries, then that state law will a!!ly C. Neumeir ;ule 4 in all other situations, a!!ly the law of the !lace of the accident $N7<%% that would frustrate or significantly undermine an im!ortant !olicy of the outside jurisdiction

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.... 67-STION 59 &> FE"ER/L ?0R.5".C%. N > N8 PR/C%.CE' A. Which state"s guest statute should a!!ly in loss distribution rules in a tort case #. Bovernment .nterest Analysis +ensure jurisdiction with greatest interest law a!!ly- +i- factual contacts of each jurisdiction, +ii- differing laws, +iii- underlying !olicies of each law, +iv- a!!ly the facts 3. Neumeir rules are a !roduct of the government interest analysis a. Iere, Neumeier Rule 1 + when a law of the situs does not benefit a citi(en of the situs, the law of the situs will control unless that would frustrate or significantly undermine an im!ortant !olicy of the outside jurisdiction .C. 67-STION : &> FE"ER/L ?0R.5".C%. N > N8 PR/C%.CE' A. Which state"s guest statute should a!!ly in loss distribution rules in a tort case #. Bovernment .nterest Analysis +ensure jurisdiction with greatest interest law a!!ly- +i- factual contacts of each jurisdiction, +ii- differing laws, +iii- underlying !olicies of each law, +iv- a!!ly the facts 3. Iere, Neumeir Rule 7 if !arties are from a !articular jurisdiction, then the law of that jurisdiction will a!!ly C. 67-STION '9' &> N8 PR/C%.CE > % R%5' A. Whether the laws of NY should a!!ly #. Bovernment .nterest Analysis +ensure jurisdiction with greatest interest law a!!ly- +i- factual contacts of each jurisdiction, +ii- differing laws, +iii- underlying !olicies of each law, +iv- a!!ly the facts 3. Iere, Neumeir Rule 1 when a law of the situs does not benefit a citi(en of the situs, the law of the situs will control unless that would frustrate or significantly undermine an im!ortant !olicy of the outside jurisdiction

Conflict of Laws