Professional Documents
Culture Documents
acts done within it. A State may, therefore, regulate the manner and
circumstances under which property, whether real or personal or in
action, within it shall be held, transmitted, bequeathed, or transferred, or
enforced; the condition, capacity, and state of all persons within it; the
resulting rights and duties growing out of these contracts and acts; and
the remedies, and modes of administering justice, in all cases calling for
the interposition of its tribunals to protect, vindicate, and secure the
wholesome agency of its own laws within its own domain.
CONFLICT OF LAWS
INTELLECTUAL HISTORY
There is a general recognition that conflict of laws rests on a
general principle of territoriality that comes from public international law
that is, that states have the right to regulate the activities and persons
within their territories and, conversely, have no right to regulate conduct
or persons beyond their borders.
The topic called conflict of laws deals with the recognition and
enforcement of foreign created rights.
1
If the court finds that one state has an interest in the application
of is policy in the circumstances of the case and the other has none, it
should apply the law of the only interested state.
If the court finds an apparent conflict between the interests of the
two states it should reconsider. A more moderate and restrained
interpretation of the policy or interest of one state or the other may avoid
conflict.
If, upon reconsideration, the court finds that a conflict between
the legitimate interests of the two states is unavoidable, it should apply
the law of the forum.
If the forum is disinterested, but an unavoidable conflict exists
between the laws of the two other states, and the court cannot with
justice decline to adjudicate the case, it should apply the law of the forum
until someone comes along with a better idea.
The conflict of interest between states will result in different
dispositions of the same problem, depending on where the action is
brought.
The common law regarding the recognition and enforcement of
foreign judgments is firmly anchored in the principle of territoriality.
This principle reflects the fact that sovereign states have exclusive
jurisdiction in their own territory. As a concomitant to this, states are
hesitant to exercise jurisdiction over matters that may take place in the
territory of other states. Jurisdiction being territorial, it follows that a
states law has no binding effect outside its jurisdiction. Modern states
however cannot live in splendid isolation and do give effect to judgments
given in other countries in certain circumstances. Thus, a judgment in
rem, such as a decree of divorce granted by the courts of one state to
persons domiciled there, will be recognized by the courts of other states.
The penal, revenue, public law, and public policy defences to the
recognition of a foreign judgment are distinct from the natural justice
defence. The natural justice defence is concerned with the fairness of the
procedure by which the foreign judgment was obtained whereas the other
defences rest on the substantive character of the foreign laws on which
the judgment was based.
The provisions of the law of a foreign country do not apply if
their application would be manifestly inconsistent with public order as
understood in international relations. [It is a generally accepted
MAXIMS:
Statutes are confined to their own territory, and have no extraterritorial effect.
Simplicity is favorable to the law, and too much subtlety is
blameworthy in law.
The multitude of those who err is no protection for error.
LEX FORI:
An action is tort for an act done in a foreign country will not lie
in England unless the act was a tort both in such foreign country and in
England.
The statutes of one state giving an action for wrongful death may
be enforced in the courts of another state, if not inconsistent with the
statutes and policy thereof.
Statutes of limitation affect the remedy only, and hence the lex
fori will be the governing law. [If a statute in force in the place where the
cause of action arose extinguishes the obligation and does not merely bar
the remedy, no action can be maintained in another jurisdiction after it
has taken effect.]
The right of set-off is to be determined by the lex fori. Liens,
implied hypothecations, and priorities of claims, generally are matters of
remedy, but only it would seem, where the property effected is within the
jurisdiction of the courts of the forum. A prescriptive title to personal
property, acquired in a former domicil, will be respected by the lex fori.
LEX LOCI:
interpretation of it, the legal duties and obligations imposed by it and the
legal rights and immunities acquired under it.
TAKES PLACE
COMMITTED
In the English courts, it has been held that the proper law of the
contract is the law or laws by which the parties to a contract intended,
or may fairly be presued to have intended, the contract to be governed.
10
LAW MERCHANT:
The general body of commercial usages in matters relative to
commerce [CUSTOM OF MERCHANTS].
Since, however, its character is not local, nor its obligations
confined to a particular district, it cannot with propriety be considered as
a custom in the technical sense. It is not a system of law which does not
rest exclusively on the positive institutions and local customs of any
particular country, but consists of certain principles of equity and usages
of trade which general convenience and a commen sense of justice have
established, to regulate the dealings of merchants and mariners in all the
commercial countries of the civilized world.
These usages, being general and extensive, partake of the
character of rules and principle of law, not matters of fact, as do usages
which are local or special. They constittute a part of the general law of
the land, and, being a part of that law, their existence cannot be proved
by witnesses, but the judges are bound to take notice of them ex officio;
and this application is not confined to merchants, but extends to all
persons in any mercantile transaction.
The development of the law merchant as part of the common law
has continued without ceasing. Evidence of living general usage is still
admissible to add new incidents to its contents, provided they do not
contradict any rule already received.
11
Alien status does not ipso facto preclude a finding of domicile and
there is even authority that a person who is illegaly in the country can
still have the intention necessary to establish a domicile of choice there.
12
Any person, sui juris, amy make any bona fide change of domicil
at any time. To constitute a change of domicil three things are essential :
(1) residence in another place; (2) an intention to abandon the old
domicil; and (3) an intention of acquiring a new one.
The law of the place of domicil governs as to all acts of the parties,
when not controlled by the lex loci contractus or lex rei sitae.
The state and condition of the person according to the law of his
domicil will generally, though not universally, be regarded in other
countries as to acts done, rights acquired, or contracts made in the place
of his native domicil; but as to acts, rights, and contracts done, acquired,
or made out of his domicil, the lex loci will generally govern in respect
to his capacity and condition.
13
JURISDITION IN PERSONAM:
14
foreign corporation actually doing business here has not applied for
license to do so ad has not designated an agent to receive summons, then
service of summons will be made pursuant to the provisions of the Rules
of Court (lex fori).
As a general rule, the court of one state will not exercse the power
of deciding controversies relating merely to the internal management of
the affairs of a corporation organized under the laws of another state or
of determining rights dependant upon such management. Questions
relating to the management of the internal affairs of a foreign corporation
are to be settled by the tribunals of the state which created the
corporation.
15
16
READ:
17
18
JURISDICTION:
wholly out of the transaction sued upon by plaintiff, and in the nature of
recoupment rather than set-ff.
READ:
Merchants Heat & Light Co. v. Clow & Sons, 204 O.S. 286;
51 L. Ed. 488
Contract executed in Chicago Illinois, between Schott, General
Manager of Merchants Heat & Light Co (Indiana Company), and
J.B. Clow & Sons (Illinois corporation), for the latter to supply
materials to be used in constructing and equiping a heating plant.
Service made on Schott and Merchants filed MTQ, and later pleaded
on merits and asked for recoupment or set-off on damages.
19
FOREIGN LAW:
The courts do not take judicial notice of foreign laws; and they
must, therefore, be proved as matters of fact, and pleaded. Written laws,
by the text, or a collection printed by authority, or a copy certified by a
proper officer, or , in their absence, perhaps, by the opinion of experts as
secondary evidence; they may be construed with the aid of text-book as
well as of experts. Where experts are called, the sanction of an oath is
required.
20
FOREIGN JUDGEMENT:
21
NOTES:
Chattel mortgages valid and duly registers under the laws of the
state which the property is situated at the time of the mortgage, will be
held valid in another state to which the property is removed, although the
regulations are different; and it will be enforced in the state to which the
property has been removed, although it would have been invalid if made
in that state. (But Wharton believes that the law in regard to chattel
mortgage is governed by the lex rei sitae, etc.)
22
23
OF
FOREIGN JUDGMENTS
AND
SEE:
Girsberger v. Kress, 2000, 47OR(3d) 145 (SCJ)
The Superior Court declined to follow the well-established
precedent that a foreign judgment is to be treated as a
contract debt and not a judgment for the purposes of the
Limitations Act. The court accepted the argument that this
rule was inconsistent with the modern conflict of laws
principles, holding that, for the purposes of enforcement,
foreign judgments are to be treated as judgments and are
subject to a 20-year limitation period not a six-year
limitation period.
24
his wife who was ill in Vancouver. The court found this was
sufficient for residency in the jurisdiction even though it was a
casual visit.
Re: Carrick Estates Ltd. and Young, 1987, 43 DLR (4th) 161
Mere presence in the jurisdiction was enough under common
law, but not under the statute.
SEE:
The
act
of
granting
authority
or
jurisdiction
to
a
party
even
though
no
legal
rights
exist.
Attornment
most
commonly
relates
to
laws
regulating
real
property
and
is
designed
to
acknowledge
the
relationship
between
the
parties
in
a
transaction.
For
example,
attornment
may
occur
when
a
tenant
leases
an
apartment
only
to
have
the
owner
change
during
the
course
of
the
lease.
The
attornment
agreement
does
not
create
a
25
ARBITRAL AWARDS:
1958 NEW YORK CONVENTION ON THE RECOGNITION AND
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
1985 UNCITRAL MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION
Read:
new
set
of
rights
for
the
owner
unless
it
is
signed
by
the
tenant.
If
the
tenant
refuses
to
sign,
the
landlord
may
be
able
to
use
this
as
grounds
for
eviction.
26
** additional grounds2:
(f) The foreign judgment lacks finality
(g) The judgment is for foreign taxes or penalties.
Waterside Ocean Nav. Co., Inc. vs. International Nav. Ltd. 737
F2d 150 (1984)
27
an issue falling under that category must be decided according to the law
of a country designated by means of a connecting factor place of
celebration of the marriage, domicile, place of commission of the tort or
place which the case is being heard. The designated legal system may be
that of another promise, a foreign nation, a state, or the forum itself.
CHOICE-OF-LAW METHODOLOGY:
Choice of law is an integral part of all legal systems, both in
practical terms and in terms of conceptual structure. To all intents and
purposes, it is a practical necessity because not reasonably developed
system of justice could function with a principle of strict territoriality.
28
Any party who relies on a foreign legal rule must justify its
application by invoking a choice-of-law rule. Different legal systems use
different approaches to choice-of-law. For instance, common law
jurisdictions traditionally decide issues relating to personal status
(marriage, legitimacy, etc.) by applying the law of the persons
domicile. Civil law jurisdictions traditionally apply the law of the
country which the person is a citizen, which may be a completely
different country. So, it is quite possible for a choice-of-law question to
be decided according to one countrys law if the issue arises in the court
of a common law jurisdiction and by another countrys law if it arises in
the court of civil law jurisdiction. There is no such thing as an
internationally accepted system of choice of law. So the choice-of-law
rule invoked by a party must be dawn from a specified jurisdiction.
That jurisdiction is, and must be, the forum itself. Choice-of-law
rules, whether judge-made or statutory, are, in positivist terms,
commands to the court by the law making authorities of the courts own
country. The law says to the judge: Here is the basis on which you must
decide whether to apply a rule of our own internal law or a rule of
foreign law to decide on a particular persons legal rights. You are not
free to apply or not to apply rules of foreign law as the spirit moves you.
You can only apply rules of foreign law if the choice-of-law rule says
that you can.
Even if the relevant choice-of-law rule otherwise indicates that a
certain foreign internal legal rule is applicable to a case, there are still a
number of reasons why this may not happen. Some of these are
exceptions to the application of a choice-of-law rule and others are due to
ambiguities that are inherent in the choice-of-law system itself.
29
Read:
Marceau J.A. held that the salient distinction is not whether the
law of the forum is statutory or common law:
What has appeared constant to me, however, in reading the cases,
is the reluctance of the judges to dispose of litigation involving
foreign people and foreign law on the basis of provisions of our
legislation peculiar to local situations or linked to local conditions
or establishing regulatory requirements. Such reluctance
recognizes a distinction between substantive provisions of a
general character and others of a localized or regulatory
character; this distinction, a distinction, formally endorsed I think
by Cartwright J. in the two passages I have just quoted, is wholly
rational which is more than can be said of a simple division
between common law and statute law.
Also, courts will neither directly or indirectly enforce the revenue laws of
another country. A foreign law may further fail to apply where it is
fundamentally offensive to the public policy of the forum.
Of course, foreign law need not be proved formally if the parties
can agree on its legal effect. Typically, this will be done by an agreed
statement of facts submitted prior to the trial but the foreign law can be
admitted, like any other question of fact, at any point in the proceedings.
31
TORTS (CASES):
READ
Walt Disney Corp. v. Triple Five Corp. (1994) 113 DLR (4th) 229
(Alta. CA)
Moran v. Pyle National (Canada) Ltd. (1973) 43 DLR (3d) 239 (SCC)
Canadian Commercial Bank v. Carpenter (1989) 62 DLR (4th) 734
(BC CA)
Ichi Canada Ltd. v. Yamauchi Rubber Industry Co. (1983) 144 DLR
(3d) 533 (BCCA)
32
The proper law of the tort doctrine ... would enable the problems to
be broken down into smaller groups and thus facilitate a more
adequate analysis of the social factors involved.
Cowley v. Brown Estate (1997) 147 DLR (4th) 282 (Alta. CA)
33
TORTS:
The traditional choice of law rule has been that the substantive
rights and liabilities arising out of tortious occurrence are determinable
by the law of the place of the tort. [The modern view center of
gravityThe local law of the state which has the most significant
relationship with the occurrence and with the parties determines their
rights and liabilities in tort.]
Under traditional rules, the law of the place of the wrong governs
all substantive issues, but when the defendants negligent conduct occurs
in one jurisdiction and the plaintiffs injuries are suffered in another, the
place of the wrong is considered to be the place where the last event
necessary to make the actor liable occurred.
For jurisdictional purposes, tortious misrepresentation, whether
fraudulent or negligent, will usually be deemed to be committed in the
country where the misrepresentation was received and acted on, because
that country is substantially affected by the wrong and the law of that
country ought to have been in the contemplation of the wrongdoer.
34
Choice-of-law principles..
1. A court, subject to constitutional restrictions, will follow a
statutory directive of its own stat on choice of law;
2. When there is no such directive, the factors relevant to the choice
of the applicable rule of law include
35
SUCCESSION:
The general rule in England and the U.S.A. is that letters granted
in one jurisdiction give no authority to sue or be sued in another
jurisdiction, though they may be ground for new probate authority.
36
37
IMMOVABLES/MOVABLES:
Read
2. There must be some personal obligation running between the
parties. The jurisdiction cannot be exercised against strangers to
the obligation unless they have become personally affected by it.
4. Finally, the court will not exercise jurisdiction if the order would
be of no effect in the situs
It is clearly established by judicial authority and no longer
controversial among learned writers that a contract with regard to land is
governed by its proper law as defined. A conveyance or transfer of an
interest in land, on the other hand, is always governed by the LEX
SITUS. If, by a contract made in Englang, X, a British subject resident in
England, agrees to sell French land to A, another British subject resident
in England, the contractual relationship between X and A may , and
probably will, be governed by English law, but French law will govern
the consequence of the land.
38
READ:
Republica de Guatemala v. Nunez, (1927)
1 KB 669 (CA)
Manuel Estrada Cabrera, president of Guatemala, and Nunez are
domiciled in Guatemala. Cabrera deposited a sum of money in a
London bank, Messrs. Lazard Bros., and assigned the money to his
illegitimate infant son Nunez as a gift.
Under the laws of England such assignment is valid. However,
under the laws of Guatemala assignment of money made without
consideration is void unless made by a document executed before a
notary on stamped paper, and signed by both parties. Further by
Guatemalan law a minor cannot accept a voluntary assignment; it
must be made to and accepted by a tutor or legal representative
appointed by a judge to act on his behalf.
39
40
SEE
The Warsaw Convention for the Unification of Certain Rules
Relating to International Carriage of Avi (1929), as amended by the
Hague Protocol (1955);
The fact that the parties have expressly choses to submit their
disputes under the contract to a particular arbitral forum of itself gives
rise to a strong inference that they intended that their mutual rights and
obligations under the contract should be determined by reference to the
domestic law of the country in which the arbitration takes place, since
this is the law with which arbitrators sitting there may be supposed to be
most familiar.
The place where the contract was made is not by any means
decisive in determining the question of what law is applicable to the
contract. The substance of the obligation must be determined by the
proper law of the contract, i.e., the system of law by reference to which
the contract was made or that with which the transaction had its closest
and most real connection.
The fact that the parties have chosen a foreign law, whether or
not accompanied by the choice of a foreign tribunal shall not where all
the other elements relevant to the situation at the time of the choice are
connected with one country which cannot be derogated from by contract,
hereinafter called mandatory rules.
41
42
Under the common law rule, courts are prepared to recognize ceremonies
that are completely alien to those of their own law. For example,
marriages by proxy have been upheld where this was allowed under the
lex loci celebrationis but not under the law of the domicile.
Registered Partnerships
Cohabitationfor same sex couples who are debarred from
marriage; also for heteresexual couples as an alternative to marriage.
Same-sex couples = same-sex partners
READ:
Toope v. Syvertsen
(1995) 5 BCLR (3d) 174 (SC)
READ:
Brook v. Brook
(1861) 8 HL Cas. 193
43
Knight v. Knight
(1995) 16 RFL (4th) 48 (Ont. Gen. Div.)
Fromovitz v. Fromovitz
(1977) 16 OR (2d) 751 (HC)
Qureshi v. Qureshi
(1971) All ER 325 (Fam. Div.)
A divorce granted in any of the states (of the U.S.A.) must, subject to a
few limitations, be recognized in all other states under the full faith and
credit clause of the U.S. Constitution. This means that so long as the
person was domiciled in one of the United States, a divorce obtained
anywhere in the U.S. will be recognized here regardless of which state
granted the decree or how short the residence in that state was, because
the state of the domicile will be constitutionally bound to recognize it.
Schwebel v. Ungas
(1965) SCR 148 (headnote)
Rathqiesser v. Rathqiesser
(2000) 46 OR (3d) 577 (CA)
44
NULLITY:
The distiction between void and voidable marriages continues to retain
some importance in resolving questions of nullity jurisdiction and the
recognition of foreign nullity decrees.
READ:
Rafferty, Recognition of Foreign Nullity Decrees (1981-82),
46 Saskatchewan Law Review 73
READ:
Sangha v. Mander
(1985) 6 WWR 250 (BCSC)
Easterbrook v. Easterbrook
(1944) P 10, (1944) 1 A11 ER 90
Hutter v. Hutter
(1944) P 95, (1944) 2 A11 ER 368
Gwyn v. Mellen
(1979) 6 WWR 385 (BCCA)
45
CHILDREN:
As in many family law areas, choice of law has never been considered
relevant in relation to custody rules. The law of the forum applies
without fail, the justification being that the interests of the child, given
precedence under substantive domestic law, cannot be superseded b
incompatible foreign rules. Jurisdictional rules, including the discretion
to decline jurisdiction, will often ensure that the lex fori is the
appropriate law. In addition, where custody is decided as an ancillary to
divorce, the lex fori rule for divorce is simply carried over.
Read:
UNIFORM
CHILD
CUSTODY
ENFORCEMENT (UCCJEA, 1999)
JURISDICTION
AND
46
foreign adoption must not be contrary to public policy. Beyond that, they
vary considerably both as to the degree of liberalism of their recognition
and as to the criteria for recognition.
47
MATRIMONIAL PROPERTY
The marriage contract will be construed with reference to the proper law
of the contract, i.e., in the absence of reason to the contrary, by the law of
the husbands actual domicile at the time of the marriage generally
denominated the matrimonial domicile. That term means the husbands
actual domicile at the time of the marriage, and not the domicile which
the spouses may have intended to acquire and did acquire immediately
after the marriage.
READ:
TEZCAN V. TEZCAN (1992), 62 BCLR (2d) 344 (CA)
48
FOREIGN CORPORATION
49