Introduction

also called private international law the existence worldwide, and within individual countries, of different legal traditions, different specific rules of private law, and different systems of private law, all of which are administered by court systems similarly subject to different rules and traditions of procedure. The “law of the conflict of laws” pertains to the resolution of problems resulting from such diversity of courts and law.

Defining conflict of laws
Each country's legal system reflects its society's values. As a result, national laws and the structure of domestic judicial systems vary considerably from country to country. Nevertheless, many kinds of legal situations or events, such as marriage, decedents' estates, torts, and business transactions, often are not confined to a single country or even to a single jurisdiction within a country. The courts of each involved country may claim jurisdiction over the matter, and the laws of each involved country may be applicable under certain circumstances. When such conflicts, or differences, exist, procedures need to be in place to resolve them; the term conflict of laws (sometimes also conflicts or conflicts law) describes the body of law of each country or state that is designed to resolve problems arising from the differences between legal systems. Conflict of laws is a term used primarily in the United States, Canada, and, increasingly, the United Kingdom. In most other countries (and historically in the United Kingdom), the term private international law is used. The latter term derives from the civil-law distinction between private and public law, whereby private law addresses the legal relationships between and among individuals, corporations, and even the state in its relations with individuals and corporations when it is not acting in a governmental capacity (for example, in the conclusion of contracts), while public law deals with the law governing state institutions as well as the latter's governmental—e.g., regulatory—relations with private parties. Private international law thus emphasizes the differences between national legal systems: although the term private international law may aptly describe the subject matter, it may also mislead by suggesting that there is an international body of rules to bridge differences between legal systems. This is emphatically not the case. The term conflict of laws refers primarily to rules that are solely national in origin and are explicitly not part of international law (except insofar as countries have concluded treaties concerning them). Conflicts law must address three principal questions. First, when a legal problem touches upon more than one country, it must be determined which court has jurisdiction to adjudicate the matter. Second, once a court has taken jurisdiction, it must decide what law it should apply to the question before it. The rules governing the court may direct it to apply its own law or call for the application of the law of another country. Third, assuming that the court ultimately renders a judgment in favour of the plaintiff, conflicts law must address the enforcement of the judgment. In the event that the defendant has insufficient assets locally, recognition and enforcement of the judgment must be sought

by allowing the original owner to recover the goods but requiring him to compensate the good-faith purchaser in some manner. within two years of the date of reunification.g.e.. or Roman-Franco legal family. In the United States. sometimes substantially. for example. for the continued applicability of East German matrimonial property law.S.. depending on whether they belong to the Nordic. with the substantive and conflicts law of Illinois. but minor differences still exist between the laws of the various Länder (states) of Germany and between those of the Swiss cantons.g. In contract law.g.g. states. In German law. in Canada the law of Quebec diverges from that of Ontario or Newfoundland. Thus.. Even within the broad groups of common law and civil law. the reunification of Germany in 1990 left some East German law in force for a transitional period. and in Mexico the law of Chihuahua is not quite the same as that of Michoacán. private law is. newer legislative provisions employ more comprehensive concepts of those engaged in commerce (näringsidkare). differing from that of New York.g. The situations described above generally presuppose unitary legal systems. the systems differ with respect to formalities that may be required for a contract (e. Germany and Portugal) do not. national legal systems diverge. Also. mainly. which may exist in countries with unitary political structures (e. Some federated countries. Similarly. In Germany and Switzerland the systems of private law are by and large uniform.. cases of conflict of laws arise from differences between legal systems. Similarly. the Commercial Code (Handelsgesetzbuch) prescribes a subjective approach toward defining a merchant: it depends on the person and the purpose and manner of his actions. Other differences in legal and extralegal (extranational) norms may also give rise to problems of conflict of laws. or Indiana. a writing). American conflicts law is thus both interregional (interstate) and international. An example of the latter was the right of married couples who resided in the former East Germany to opt. Germany). the law of the several U. Louisiana. . civil law has no direct counterpart to the common-law requirement that a promise be supported by “consideration”—i. Diversity of legal systems As noted above. however. English substantive law often differs materially from American law. for example. civil-law countries differ in many respects in the solutions they provide for specific legal problems. The legal systems of some countries (e.in a country where assets do exist.g. for example. though the two common-law countries share a common tradition and basic methodology. between countries with a common-law tradition and those employing civil law.. by a bargained-for exchange—in order to be binding. while those of other countries (e.. Differences also surround the question of whether a good-faith purchaser can acquire title to goods that have been stolen. Others (e. Notable differences exist. France) and in countries organized as federations (e. for example. The French Code de Commerce adopts an objective approach: it is the particular transaction that determines which party in a transaction is the merchant. Italy and many former Soviet-bloc countries) do permit this. Older Swedish law focused on the definition of a merchant (köpman). Germanic. do not possess a uniform federal private law.. France and The Netherlands) attempt to strike a balance between the interests of the parties—for example. Similarly.

and other religious groups. including succession upon death. Jews. In Spain foral (leasehold) law. particularly in Navarra. An organization founded in 1985. In India the laws concerning matters of the family. some international treaties have unified particular areas of substantive and conflicts law with respect to the participating states. and The Netherlands. associations of civil law in Alsace-Lorraine are governed by portions of the 1914 Bürgerliches Gesetzbuch. and the Netherlands Antilles and Aruba have their own laws (staatsregeling). a type of commercial agent for whom there are special rules in German law regarding continued compensation and prohibitions of competition after termination. The imperatives of religious law or the traditions of foreign law may need to be accommodated within the framework of local law and procedures. the version of the German Civil Code in use before Alsace-Lorraine was returned to France. may determine the applicable law. Such a situation has existed historically in many Islamic countries. Muslims. are different for Hindus. Aragón. the Institut de Droit Local Alsacien-Mosellan. regional differences can be found. particularly when the otherwise-governing French law lacks an applicable provision. and Basque areas. and in Lebanon and Israel they are different for Muslims. in the Alsace-Lorraine area of France. Nevertheless. the Channel Islands. American Indian reservations present similar problems when the occurrence of events on a reservation or the affiliation of a person with a reservation results in the application of tribal law rather than the law of the state in which the reservation is located. the Isle of Man. Thus. Significant bodies of regional law also exist alongside national private law in France.Even in countries whose political structure is unitary rather than federal. In The Netherlands there are provincial and municipal bylaws. for example. Legal diversity may be based on religion or ethnicity as well as on territory. and Northern Ireland. Buddhists. Examples are the state of New York's requirement that a party seeking a divorce must remove impediments to the spouse's ability to remarry (which takes into account the Jewish law that the husband must issue a letter of divorcement—a get—to the wife) and the various ways employed by German courts to accommodate the Morgengabe (a transfer of property in contemplation of marriage within Islamic law) when dealing with questions of support upon divorce under local law. Parsis. and the various groups of Christians. In the United Kingdom considerable differences exist between the laws of England. One such example involves the Handlungsgehilfe. Scotland. Similarly. In this case. publishes commentary on local law in books and journals such as Revue du droit local. When a treaty provides uniform rules of substantive law—as does the United . Spain. The nature of conflicts law Conflicts law is a part of national legal systems and is not codified in a systematic way at the supranational or international level. Membership in an American Indian tribe. parties may still resort to concepts of German law in matters of locally applicable law (droit local). applies in place of the Civil Code (Código Civil) to aspects of family and succession law in many regions. rooted in medieval practices and documented in compilaciones. specific articles within the local Handelsgesetzbuch apply.

and Uruguay—led the harmonization of important aspects of international business law. when the Italian minister of justice Pasquale Stanislao Mancini sought to convene a conference for the harmonization of private international law. A notable exception was the Convention on the Law Applicable to Contractual Obligations (1980). and Peru. particularly in the areas of trademark. thereby displacing previous national law and eliminating conflicts. (See also intellectual-property law. conventions exist in relatively few areas of substantive law and conflicts law. Brazil. when an international treaty unifies conflicts law. Projects for the unification or harmonization of laws on a wider (in some cases worldwide) basis have been pursued since the middle of the 19th century. sponsors projects for the unification of substantive law.) Another unifying force of growing importance is international business practice and custom (the so-called lex mercatoria [Latin: “law merchant”]). rendering the rules of conflicts law obsolete. In 1904 Japan became the first non-European state to participate in the Hague Conference. and the interpretation and application of international treaties remain matters for the courts of the individual participating states. arbitration tribunals. Over the years. some of which have enjoyed notable success. also. Similar efforts by the Dutch jurist Tobias Michael Carel Asser proved successful in 1893 with the founding of the Hague Conference on Private International Law. such as the Convention on the Civil Aspects of International Child Abduction (1980) and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965). Mercosur (also known as the Common Market of the South)—whose members include Argentina. The EU possesses lawmaking powers that enable it to establish uniform rules of substantive law. CAN) has promoted the harmonization of copyright and patent law between its member countries of Bolivia. Paraguay. which transformed the Rome Convention into binding EU law. Ecuador. commonly known as the Rome Convention. and promulgated the Rome II Regulation. Colombia. In 2008 the EU adopted the Rome I Regulation. substantive differences between national laws continue to exist. the Hague Conference has produced many conventions. The Andean Community (Comunidad Andina. Common principles . In Latin America. the number of states participating in them is relatively small. which applied in the member states of the European Union (EU) and whose interpretation lay within the scope of the European Court of Justice upon reference from national courts. However. which provided rules for determining the applicable law in cases of noncontractual obligations. investment.Nations Convention on Contracts for the International Sale of Goods (1980)—it may displace national law. but the uniform rules provide a way to bridge them. to which courts. In contrast. established in Rome in 1926. and parties increasingly refer in their decisions and commercial dealings. and competition (antitrust) law. Examples include its early efforts with respect to international sales law and the more recent drafting of the Unidroit Principles of International Commercial Contracts (2004). The International Institute for the Unification of Private Law (Unidroit).

There are. For commercial transactions. Although the article provided some presumptions regarding what law that might be. legal systems will consider the nationality or. A formal requirement of reciprocity could actually limit the extent of these courtesies and privileges to those that the other state is willing to extend. The ancient international principle of comity—which. however. Jurisdiction As stated above. especially in the EU. Party autonomy (i.. those of Latin America being a notable exception. the language used by the parties in their negotiations and contract formation. the freedom of parties to decide what court shall hear their case and what law shall govern it) is recognized by most countries. the courts in that location may not have jurisdiction. which first established the general principle that the applicable law should be that to which the contract has the closest connection. This quality is evident in Article 4 of the Rome Convention. when a contract is concluded in a hotel or other meeting place because both parties are in transit). Legal systems have established different criteria for the selection of one country's law over that of another for application to a particular case or problem. another law was more closely connected to the contract or to one of its issues. the first question in an international case potentially involving conflictof-laws problems is which court has jurisdiction to adjudicate the matter. and other factors that are not as incidental as the place of contracting may be (e. and (in limited types of cases) even liability in tort. the Rome I Regulation. especially those employing civil-law principles. refer to the law of the state where the entity is incorporated. the currency and modalities of payment specified. it concluded by making it possible for the court to correct the result: if the court found that.g.g. alternatively. but others. for reasons of forum non . For questions of family law. refer to the law of the corporate “seat.. posits that even sovereign states should extend courtesies and privileges to each other—explains why one country would give effect to the law of another. or they may have jurisdiction but be unwilling to exercise it. contracts). some widely (albeit not uniformly) shared principles. there are a number of common principles that are recognized to varying extent throughout the world. Factors determining a close connection to a particular state and its law may be the place of business or principal residence of the party that is to effect the performance in question. modern conflicts law emphasizes flexibility. there is now a trend to change to the place-of-incorporation rule.Although few uniform international conflicts rules exist.e. domicile or habitual residence of a person. Among the latter countries.. like the biblical Golden Rule. replaces the presumptions with specific rules for a number of contract types and retains the general reference to the most closely connected law for all other contracts (see below Choice of law). Especially with respect to commercial transactions (e. The convention's successor. a transaction's “closest connection” to a legal system may be emphasized over traditional connecting factors such as where the transaction was concluded. many countries. exceptionally. then it should apply that law. inheritance. For cases involving legal persons (corporations). Although the plaintiff decides where to sue.” defined as the place of central management and decision making. particularly those of the common-law tradition.

The chosen court must have the power to entertain the case (jurisdiction to adjudicate). including the need to prevent local courts from becoming clogged with litigation with which they have no concern (e. However. dismissal protects the . Especially in the United States. the possibility of suing on only a part of one's claim to determine the likelihood of success before committing resources to a suit on the entire claim (a common practice in Germany).conveniens (Latin: “inconvenient forum”). American courts may dismiss for forum non conveniens when the exercise of jurisdiction would be unduly burdensome for the defendant. provisions of law or court decision making practice may limit the exercise of jurisdiction to adjudicate for any number of reasons. The jurisdictional grant will usually be defined by statute. litigation between foreigners concerning a claim that arose abroad). Because the plaintiffs sought remedies that were not available—at least not to the extent desired—under Scottish law. In addition.. Legal questions also are important. courts may consider themselves to be a forum non conveniens in these circumstances and dismiss the action. a plaintiff is likely to want to sue in a jurisdiction that is reasonably close to his home. Rationale behind choice of jurisdiction There are several factors that affect the plaintiff's decision of where to file a case. A plaintiff may be more likely to file suit in a jurisdiction that will afford him procedural and other advantages and where the defendant has assets with which to satisfy an ultimate judgment. and all of the relatives were Scottish. In addition.or substantive-law advantages not available to the plaintiff in his home country's courts (so-called “forum shopping”). This occurred in Piper Aircraft v. as may happen in some common-law countries.g. The flight originated in Scotland and was scheduled to end there. which limits the exercise of the jurisdiction of state courts to protect defendants against unreasonable burdens. the availability of punitive damages. they decided to bring suit in the United States. In many cases. a suit filed in the United States on behalf of Scottish parties whose relatives were killed in an airplane crash. the place of suit is not entirely up to the plaintiff. the aircraft was owned by a British entity. particularly because witnesses and evidence may be more readily available there. Examples of likely procedural or substantive law advantages include the possibility of a jury determination of damages in a tort case. the ease of obtaining pretrial discovery of evidence (commonly used in the United States). One is convenience. only the defendants—the airplane manufacturer (Piper) and the propeller manufacturer—had a connection to the United States. and advantageous exploitation of variations in liability standards. the exercise of jurisdiction may also be limited (as a check on the statutory grant or on the judicial exercise of it) by constitutional provisions or pervasive principles of law. making this a clear case of forum shopping. the pilot was Scottish. The Fifth Amendment similarly limits federal courts in asserting jurisdiction in cases not based on state law. especially when it seems likely that the courts of the forum state were chosen only as a means of gaining procedural. In the United States this is the function of the due process clause of the Fourteenth Amendment of the Constitution. For example. in common-law countries. Reyno.

a court's jurisdiction is not an issue unless and until the defendant objects to it. the United States. the defendant confesses judgment or appears and begins to litigate the controversy. Civil-law countries generally do not dismiss actions for reasons of forum non conveniens. particularly the Fourteenth Amendment's due process. it becomes necessary to have rules to determine in which jurisdiction a civil suit may be brought. In addition to these general bases of jurisdiction. equal-protection. In some countries (e. Canada. the power to deal with the property itself (with effect as against all potential claimants) belongs solely to the country of location (situs). Civil-law countries start from the premise that there is one principal place where a suit can be filed: the domicile of an individual or the seat of legal persons such as a corporation (“general jurisdiction”). Differences between civil-law and common-law countries in the absence of a choice by the parties Traditionally. the United States). where a tort was committed or where its effects were felt.g. the Brussels II Regulation permits dismissal or transfer for forum non conveniens reasons in child-custody cases. while their judgment would bind the parties before them.g. while in others the constituent states may determine the jurisdiction of their courts themselves (e. or. Alternatively. In federal countries or unitary systems with strong traditions of regional or provincial jurisdiction (e. and privileges-and-immunities clauses. a suit ordinarily may be brought in the courts of the place to which the suit has a special connection—e.. The defendant's consent may be presumed when. the court in a common-law country may still decline to hear the case—for example. federal constitutional law. and Switzerland).) Each country determines the jurisdiction of its courts to entertain a civil law suit. however. the United Kingdom.. if title to real property is involved. Consent may take the form of an express agreement in the initial business contract or at the time the dispute arises. As an exception. civil-law and common-law countries have followed different approaches in determining which court has jurisdiction in a civil action when the parties have not agreed on or submitted to the forum. rather than objecting to the court's jurisdiction. consent may be the result of conduct. Courts likewise will not entertain actions concerning title to real property located in another country. Even when both parties consent to a court's jurisdiction. The European Court of Justice has held expressly that the allocation of jurisdiction by EU law (namely. countries have limited the exercise of jurisdiction (and have prohibited parties from varying these . where the alleged breach of a contract occurred. The plaintiff's consent appears from the filing of the action. limits the assertion of state-court jurisdiction. when neither of the parties nor the controversy has a connection to the country in which the court is located. In most cases. Although state-court jurisdiction is a matter of state law in the United States. where the property is located (“specific jurisdiction”).foreign defendant as much as it protects the local court from unfair burdens of foreign litigation. the Brussels I Regulation) is binding on national courts.g. Most countries allow the parties to agree to the jurisdiction of a court.. Germany and Austria) the central (national) law governs.. Increasingly. (See below Recognition and enforcement of judgments.g.

and German statutory law permits a local plaintiff to sue an absent defendant on the basis of any property the defendant may have in Germany.e. a much more limited convention on choice of court agreements was adopted in 2005 and proposed for adoption by member states and others. and to remove a party's interest that encumbers title to land. Most countries provide some bases of jurisdiction for the benefit of local plaintiffs. such as employees and consumers.e. which concern personal legal rights and may seek money damages or injunctions to do or not to do an act. At the same time. also assert jurisdiction on these bases but additionally will exercise jurisdiction simply on the basis of physical power over the person of the defendant. Unlike actions for judgments in personam (Latin: “with respect to the person”).S. particularly the United States. for example. even if the dispute arose elsewhere. law also provides for jurisdiction over a company when it has been connected in some ongoing way with the state. even if he was there only temporarily or while in transit (“transient jurisdiction”). civil-law countries have not likened divorce jurisdiction to in rem proceedings. The United Kingdom and Ireland also exercise jurisdiction on this basis. Such a pattern has emerged. as well as the American “doing business” jurisdictional rule. for example. Rules such as these.. which favour plaintiffs (“transient jurisdiction” also falls into this category). In contrast. are a source of considerable tension. EU member-states may retain exorbitant jurisdictional bases of national law in cases involving non-EU defendants. However. Both civil-law and common-law countries have special rules governing suits for judgments in rem (Latin: “with respect to the thing”). to foreclose a mortgage on land (by selling it). Courts in common-law countries. They provide for divorce. in the procedural law of the EU. The effort was abandoned when the differences proved too large to bridge. in divorce proceedings. are known as “exorbitant” rules of jurisdiction. U. particularly in the United States. regardless of whether the litigation is related to the property or even to Germany in any other way (though modern German court decisions have given provision a more limited reach). Within the EU they have been abrogated in cases in which the defendant is habitually resident within the EU. The Hague Conference on Private International Law sought to formulate an international convention on jurisdiction and judgment recognition. residence of varying length (from several weeks to several months) may take the place of—or may presumptively equal—domicile for divorce-jurisdiction purposes. a court is authorized to assert jurisdiction when the defendant is “doing systematic and continuous business” within its state. including the possibility of ex parte divorce (i... the domicile of each spouse localizes the status and permits the court at the domicile to assert divorce jurisdiction. Examples include actions to quiet title to land. French law. Internationally—i. a court in the United States has jurisdiction over a defendant if he has been served with the documents commencing the suit in the territory of the state in which the court is located.limitations by agreement) for the protection of weaker parties. grants jurisdiction if the plaintiff possesses French nationality. which concern proprietary legal rights. an in rem action seeks a judgment that produces effects of its own on a legal relationship. family-status actions (e. Thus. Instead. Thus. for example.g. In common-law countries. divorce or the creation of an adoptive family-child relationship) have been likened to in rem actions. beyond the EU—these rules. only the . even if the particular dispute does not arise out of that connection.

in the view of the American legal scholar Joseph Beale (1861–1943).g. Russia. It provides for a “Central Authority” in each member state that receives service requests from other convention states and executes them according to its own national procedures.petitioner is before the court). similar procedures exist in civil-law countries. are party.. foreign transactions. . where less-restrictive standards would lead to forum shopping. on the basis of a close relationship to the forum state—e. A very effective multilateral mechanism is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. the law of the forum (known in Latin as the lex fori). International cases pose special problems. even by publication) is a last resort when the whereabouts of the defendant are unknown. either on the basis of express agreements or as a matter of practice. In contrast. including the United States.. residence of a specified length of time. and all the EU states. its existence should be recognized everywhere. “substituted service” (e. the court would always apply its own law. Countries often cooperate bilaterally.” This vested-rights doctrine maintained that. the court that exercises jurisdiction determines which law to apply to a case that involves foreign parties. some modern methodologies. Because civil-law courts make choice-of-law decisions with reference to the particular parties and their case. whose thoughts shaped much of American conflict-of-laws theory in the first half of the 20th century. The German jurist and legal scholar Friedrich Karl von Savigny (1779–1861) sought to identify the law where. to which some 50 countries. Service on the defendant in person is considered ideal. particularly in the United States. In common-law countries this notice is effected by “service of process” on the defendant. that is where the rights and obligations of the parties “vested. Notification of parties Fundamental fairness requires that the defendant receive notice sufficient to afford him an opportunity to defend. courts in civil-law countries treat the action as in personam and make a choice-of-law determination that focuses on personal connecting factors such as the nationality or marital residence of the parties. alternatively. once a right was created in one locale. “according to its nature.g. favour the lex fori approach. Indeed. or a number of foreign elements. China. Historical development Classic theories of conflicts law were territorially oriented. in aiding each other's courts to effect service on the defendant.” the legal problem or relationship had its “seat. In a simple world. Choice of law In its choice of the applicable law. Central to the continued divergence of these jurisdictional approaches is the applicable law: a court following an in rem approach to status matters will always apply its own law. jurisdictional standards can be more liberal in those countries than in common-law countries.” AngloAmerican law also sought the territorially applicable law because.

the recasting of a question of contract as a tort or a tort question as one of family law. all of whom conducted business in a common (but different) state. Because of the influence of the Hague Conference on Private International Law. For example. Despite. the common (“home”) law of the parties might serve the parties' interests—and those of society—better than the mechanical application of traditional tort or contract choice-of-law rules. the reference is now more commonly to the law of a person's “habitual residence” (as it is in the law of jurisdiction). If by these guidelines the other state is determined not to have an . In both examples. and they did not prevent important aspects of a particular case from being overlooked. is this a question of tort law (i. Among these is the recharacterization of a set of facts—e. Some European systems referred to the law of either of these places. a person's nationality was until recently the most important connecting factor. courts and parties resorted to so-called “escape devices” that yielded better. starting with the governmental-interest analysis developed by the American legal scholar Brainerd Currie. The escape from rigid rules by means of recharacterization resulted in a period of considerable uncertainty. the law of the place of injury) or family law (law of the state of the marital domicile)? If the two laws differ. American law traditionally looked to the law of the place of injury. Anglo-American law used the parties' domicile (narrowly defined). whereas European law referred either to it or to the law of the place where the wrongful conduct had occurred. what law governs the question of whether spouses have the capacity to sue each other or whether they have immunity? In a personal-injury case. For torts.g. this was. For contracts. and continues to be.e. the characterization of the issue may produce different outcomes. or if one law is construed to be inapplicable to cases such as the one before the court. In matters of family law. though ostensibly different. however. these rules at times failed to serve the interests of justice: they were inflexible. Consequently. Contemporary developments New approaches to choice of law. subject to exceptions in certain difficult cases. their predictable results. both laws are designed to effectuate the same policy. by contrast. or perhaps because of.. In civil-law countries. These examples illustrate that rather well-defined connecting factors can identify the applicable law in a predictable manner. especially in the United States.Classic theories of conflicts law used a number of connecting factors to determine the territorially applicable law. the plaintiff-favouring choice-of-law rule in Germany. Such problems could have occurred in cases involving the fortuitous commission abroad of a tort involving parties with a common domicile in the forum or in another state (where the long-term effects of the tort would be felt) or the conclusion of a contract in an unrelated state (for example. began to emerge in the 1950s. Currie's approach sought to determine whether a “true” or “false” conflict exists between the law of the forum state and that of the other involved state. at a trade fair) between two or more parties. if.. most legal systems looked to the place of performance for breach but stipulated that the place of formation was a more important connecting factor for questions of validity. A false conflict exists if the laws of both states do not differ. more appropriate results.

many ALI restatements have proven so reliable that courts have been known to cite the restatement instead of case law precedents. the other state is disinterested. with the restatements of contract and of tort law. Overall. and law professors. the Restatement (Second) provides a number of connecting factors (“contacts”) to determine the place of the most significant relationship.S. an example is California's “comparative impairment” approach. He rejected any evaluation or weighing of the competing state interests.e. known as the better-law approach. The Restatement of the Law. Not surprisingly. among others. They include party expectations. Although the material presented in them is not law. the ALI's restatements synthesize all U. and fairness.e. the domicile of the parties. function. governmental-interest analysis has had a significant influence on modern American conflicts law. Second: Conflict of Laws (1971– ) not only updated its predecessor document (which was promulgated in 1934 and reflected a bias toward vested-rights thinking) but took a forward-looking stance by presenting recommended approaches. state case laws on a particular subject. judges. societal interests—including the policies underlying particular rules of law—ease in the administration of justice. In cases of “true conflict”—i. This approach. This has occurred. . considering this to be a legislative. Contemporary applications of interest analysis do undertake to weigh the relative interest. These contacts are to be evaluated in light of the “general principles” of section 6 of the Restatement (Second). or contracts. it called for the applicable law to be the law of the place where the “most significant relationship” between the transaction (in contract) or occurrence (in tort) and the parties is located. attempts to determine which of two potentially applicable laws is better as a solution to the problem at hand.e.. or there is a so-called “false conflict”) in view of the forum's determination that it has the greater interest in having its law applied or because forum law. such as the place of the tort. one that favours the home forum. both the governmental-interest and the better-law approaches tend to apply the lex fori. such as tort. drafts so-called “restatements” of specific areas of the law. agency. not a judicial. American case law employing these approaches has tended to display a “homeward trend”—i. Bearing some resemblance to European codes in their form and structure. and so forth. is deemed to be better. thus making the local law of the forum the applicable choice of law. a false conflict exists. a private association of lawyers. in cases in which both the forum's law and another law claim applicability—Currie called for the application of forum law. either because the other law is deemed to be inapplicable (i. Applications in the United States The American Law Institute (ALI). As the laws change. for example.” has been very influential in the United States..interest. particularly for tort and contract conflict-of-laws cases. the ALI publishes new restatements. according to the better-law approach. Another approach. which some earlier contract cases had called the search for the contract's “centre of gravity. Drawing upon all of the approaches that had been the subject of academic discourse over the preceding quarter century. Furthermore..

providing the service) into concrete rules. The Rome I Regulation also provides special rules for consumer. such as those pertaining to the renvoi (French: “send back”) principle. with exceptions in favour of the law of the parties' common habitual residence and. In addition. such as in China. Many codifications.Nevertheless. yet its orientation may differ from state to state. Applications in other countries In many countries around the world. it translates the preceding Rome Convention's reference to the law of the party rendering the “characteristic performance” (e. Predictability thus depends on the development of a consistent body of case law. as a result. The Restatement (Second) also provides expressly that the choice-of-law determination be made for each issue of the case. This “splitting” of a case into its various component issues may promote just solutions for difficult international cases. to which the forum's conflicts rule refers. of a more closely connected law. selling the goods. Applications in EU member countries European choice-of-law methodology has undergone similar changes. as an alternative. the general principles of the Restatement's section 6 accommodate all doctrinal schools— from interest analysis to the better-law approach—thus giving courts substantial leeway. no longer make reference to a single governing law in tort but also give weight to such alternatives as the parties' common domicile and other relevant factors. and employment contracts. Finally. thereby contributing to different (divergent) results. including many that are civil-law oriented. In contract the Rome I Regulation also provides specific choice-of-law rules for a number of contract types—for example. In so doing. both in the law of individual European states and within the EU—in the latter first as a result of the Rome Convention and more recently as the result of EU legislation.. several of its features can make its application somewhat uncertain. recent legislation similarly has made the determination of the applicable law more flexible. but the practice significantly increases the burden on courts and on the involved parties. The Rome Convention's underlying policy—application of the most closely connected law—becomes the default rule when no specific rule applies.g. contains a conflicts rule that . such as in eastern Europe outside the EU. even if they differ only slightly. or legislative projects. Other considerations Differences between the conflicts law of different countries may raise additional choiceof-law questions. If the foreign law. because the criteria provided by the Restatement (Second) are not ranked in order of priority. For example. different courts may assign different priorities. In tort the EU's Rome II Regulation contains specific rules for a few torts but in general calls for the application of the law of the place of injury. different laws may apply to different issues of a case (a situation known as dépeçage [French: “break into smaller pieces”]). insurance. it diminishes the decision's value as a precedent for later cases. seller's law for contracts for the sale of goods in the absence of a contrary party stipulation.

refuse to accept the outcome of the case. will the latter accept the reference and apply its own law? Similarly. On procedural issues.refers back to the law of the forum. and even those legal systems that do use it or have used it in the past exclude renvoi. recognition and enforcement of the judgment will need to be sought in a state in which the debtor does hold assets. will the forum follow that reference? The underlying question hinges on whether the forum's reference to foreign law includes that law's conflicts rules in the first place. Within the United States. A . Time limitations (statutes of limitations). if the foreign law contains a conflicts rule that refers to the law of a third country. however. the recognition of a judgment is a matter of national law. although it is sometimes dealt with in bilateral or multilateral treaties (except in the United States. National legal systems will ordinarily recognize a judgment rendered in a foreign country (sometimes on the condition of reciprocity). There is no agreement. when a court rejects a foreign judgment on the basis of public policy. does much the same for divorce and custody decrees. Another EU regulation. and that the foreign judgment does not offend the public policy of the recognizing state. a court will always apply its own law. if assets for satisfying a judgment in favour of a creditor are unavailable locally. For EU member-states the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) and its successor. perform a similar function by mandating the automatic recognition and enforcement of EU member-state civil and commercial judgments in all other member states. subject only to few exceptions. Most systems do not allow a review of the foreign judgment on the merits (a so-called révision au fond [French: “review of the background”]). it will necessarily have considered substantive or procedural aspects of foreign law and. that the judgment debtor had received notice sufficient to enable him to defend. because of its disapproval of them. recognition and enforcement of sister-state judgments are mandated by the full faith and credit clause of the federal Constitution and are facilitated procedurally in many states by uniform state laws. Thus. Brussels I). Internationally. on which issues are procedural and which are substantive. This is now the case in EU conflicts law with respect to tort and contract cases. But not all conflicts systems utilize renvoi (most American courts do not). Recognition and enforcement of judgments Judgments are sovereign acts that have no force beyond the jurisdiction of the court that renders them. which is not party to any judgments-recognition treaty). However. Many legal systems answer the question in the affirmative and thereby resolve the two questions posed in the foregoing. for example. the Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2000. the Council Regulation concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility (2003. provided that the rendering court had jurisdiction (as measured by the standards of the recognizing court). the Brussels II Regulation). are considered substantive in civil-law countries but procedural in certain other countries and in many states of the United States.

punitive damages exceed the purview of tort law. where a central norm establishes jurisdictional limits for the constituent units. First. Territoriality may be modified in two ways. for example. as a defense against recognition of the judgment in another constituent unit. which seeks compensation but not punishment. an American court may refuse to recognize an English judgment for damages because English substantive and procedural law (e. becomes res judicata (Latin: “the matter is adjudicated” or “a thing adjudged”) and is not open for reexamination in a second forum (nor in the original forum after a period fixed by the statute of limitations has expired).g.. Second. Exceptions may apply when the judgment is rendered by default (i. Similarly.e. when certain effects are unknown in the law of the recognizing country. constitutionallaw principles. According to the generally recognized principle of territoriality.German court. In the EU the Europol Convention provides for judicial and police cooperation in criminal matters. its sphere of application is determined by public international law. according to the German view. the country where the offense was committed is competent to investigate and adjudicate it. . The effect of the first court's judgment (and of issues necessarily bound up with it) on the immediate parties. the burden of proof in defamation) violates U. will refuse to recognize an American punitive damage judgment because. including genocide and piracy.S. alleged jurisdictional defects must be raised directly (on appeal within the particular constituent unit's system) when both parties are before the court. The most important issue is therefore whether a state's authorities may commence criminal proceedings in cases involving foreign persons or elements. public international law recognizes the jurisdiction of all countries over certain universal crimes. when not appealed or when affirmed on appeal. provide legal aid. countries may claim jurisdiction over offenses committed by their citizens abroad. the defendant is not before the rendering court). which defines the reach of state sovereignty. International criminal law Criminal law is part of public law and is not subject to the individual's disposition (in the way that parties can choose the applicable law by contract in their private transactions).e. Prosecution and court proceedings are almost never governed by foreign laws. A number of bilateral and multilateral conventions facilitate the obtaining of evidence. or ensure the extradition of offenders. or perhaps also when a judgment goes beyond the res judicata effect that the latter's law would accord. They cannot be raised collaterally— i. because that country's authorities are responsible for preserving law and order in its territory.. The scope of a judgment's res judicata effect (the recognition of a judgment as a bar to the initiation of a new suit all over again) is ordinarily that which attaches under the law of the rendering state. In composite jurisdictional systems such as those of the United States and the EU.. See also international criminal law.