Private International law

(Conflict of Laws)
 Part One
General Principles of
Conflict of Laws
Chapter One
Preliminary Remarks
 1.1. Nomenclature/Naming
 Various names have been suggested to refer to the subject
but each are inadequate to describe it.
 Such Names as:
 Conflict of Law
 Private International law
 Law of Multistate Justice
 International Property Law
 Law of Comity
 “Conflict of laws” and “Private International law” are commonly,
and widely used
 All are Inadequate and Misleading Names
 Eg. The term “Conflict of laws” suggests the existence of equal
status between the two laws and they are in competition. But in reality
it is only with permission of the forum court that foreign laws will be
applicable in a country and foreign law has no equality with forum law.
Naming Contd..
The term “Private International law” also
suggests the existence of certain
Internationally accepted law applicable on
the subject matter.
 But the truth is conflict of laws is
essentially a national( Municipal) law
having no international applicability
except where it is permitted in special
cases through treaty between countries.
E.g. Harmonization attempt in EU private
International Law.
1.2. Definition and Analysis of
Conflict of laws
Does not have a universally agreed up on definition
Blacks law Dictionary defines:
“ That branch of jurisprudence arising from diversity
of laws of nations , state or jurisdictions, in their
application to the rights and remedies that decides
which law or system is to govern in case or settles
the degree of force to be accorded to the laws of
another jurisdiction…”
Robert Allen Sedler Defines :
“ that body of law that determines whether the forum
will give effect to the laws of another state where the
case that is adjudicated contains a foreign element.”
Analysis
 The basic concepts in the above definitions are :
Existence of diversity of laws of different nations
The existence of a case that contains a foreign element
The need for rule or body of law to determine the
applicable law in such cases
 When does a case contains a foreign element?
Three grounds:
1. When the events giving rise to the litigation occurred
partially or totally in foreign lands or;
2. When the Parties to the dispute are domiciliary,
nationals or residents of different states; or
3. When the property ( subject matter of the
dispute) is situated outside the forum.
1.3. Nature , Scope and Subject
matter of conflict of laws
A. Nature
1. Conflict of law rules does not by themselves
dispose of a case with substantive remedy. They
simply indicate the law through which final remedy
could be obtained
2. Is not concerned with public cases like criminal,
revenue, customs, constitutional and administrative
cases. It deals with disputes of private nature.
3. It is basically a national law made by each
country.
4. conflict problems arise at both the international
( intre -state) and national level (intra state
conflicts).e.g. in Federations
Conflict of laws( Private International
Law) VS. Public International Law
 Common Grounds
 Common Historical Origin
 Exceptions to the normal application of law created by
sovereign and diplomatic immunity
Displacement of the normal operation of rules of the
conflicts when they threaten friendly international relations
 Differences
 Conflict of laws is Part of domestic law of a country , It
deals with private matters among private individuals
It has no uniformity or no consensus among states
Public international law governs states and international
organizations in their mutual relations
 Here there exist a certain degree of consensus on the rules
an d principles.
Nature , scope ctd…
B. Scope
According to the traditional view, conflicts
mainly deal with three major sub-divisions
They are:
Judicial jurisdiction, (whether the forum court
has the power to see and decide on the case);
Choice of law, ( the law which related state
governs the case) and;
 Recognition and enforcement of foreign
judgments and foreign arbitral awards. ( How
should we recognize a foreign judgment and
ward; How to execute domestically.)
Nature and scope cntd…
Exceptions to scope
 In some civil law countries the subject often
encompasses in addition to the above three:
 The Law of Nationality and Citizenship
 Some special rules pertaining to the position of
aliens
 International Legal Cooperation in civil matters
Scope of Conflict of laws Under Ethiopian System
No separate conflict of law Proclamation
Proclamation No. 25/1996 , dealing with Jurisdiction
of federal courts and very vague choice of law rule;
Art.11 (2) (a) and (c) of Proc. 25/1996 and the Civil
Procedure Code of Ethiopia (esp. the former)
deliberately or not implies that (recognition) and
enforcement of foreign judgments is not part of
conflicts discipline.
Initial Draft Proclamation to Provide for Federal
Rules of Private International Law prepared by the
Justice and Legal System Research Institute
considers the three elements as parts of the
discipline.
1.4. Raison D'être of conflict of Laws(What is the
purpose of its existence, Why do we need It?)
Two important facts create obstacle to
smooth operation of law in the international
community and give rise to Conflict of laws
Problems:
 Different legal communities have different
laws ( diversity factor)
Legal transactions are some how connected
with more than one legal system because of
cross border commercial, family etc relations
(Integration factor)
 In addition the Notion of state sovereignty and
impact on recognition of foreign judgments
Raison d'être Cotd..
The legal systems being diverse and the
unavoidability of commercial and other interaction
among individuals across borders of states, in case
of disputes individuals will and courts will be faced
with questions of :
Which court , the local or the foreign court can see the
case
If a certain court has assumed jurisdiction which law is it
going to apply to remedy the dispute
Even if the plaintiff may obtain a judgment here can she
obtain enforcement of the same in a foreign territory
where the defendant has property etc
These are the main problems private international
law is meant to alleviate.
What would happen if there were
no Conflict of law rules?
 International legal transactions would be greatly impeded and
Forum shopping would be rampant
 Forum shopping is making use of jurisdictional options to affect
the outcome of a lawsuit provided that all courts would always
apply their own laws.
 Lex fori(local law) would always be applicable in lieu of lex
cause(proper law).
 No one involved in multistate legal relationship would be sure
of the out come of his action
 Prevention of Injustice to parties. Individuals could be gravely
harmed for they may lose a right or status legally obtained in
one state when they cross a border to another state
 Judgment creditors may be left without execution of their
right obtained in one state against defendant in another state
 Business, and investment will be greatly hampered.
1.5. Intra -state and International
Conflict of laws
 Conflict of laws problem arises both on international level
( among national states )( Inter-state) and between sister
states of a federal or a decentralized system of governments(
intra-state conflict)
 For purpose of conflict of laws states of a federation are
considered a separate legal entity and a distinct legal system
 Each of the sister state may have their own conflict of law
rules
 Even if in most cases the nature of intra-state and
international conflicts of laws are the same, the intra-state
conflict is different because the federal constitution provides
for certain rules that aim at homogeneity on certain issues
and a constitutional guarantees so as to protect right of
individuals, Unity of the federation and the sisterly relation of
state governments.
1.6. Origin and development of
Conflict of Laws :In General
 The history of Conflict of Laws or Private International Law
is history of Choice of law.
 i.e., History of the theories of Choice of Law
 "Ye shall have one manner of law, as well for the
stranger, as for one of your own country," but as to
certain religious duties, only permanent residents were
bound. (see Leviticus 24:22; see also Exodus12:43-45,
47-49; Leviticus 24:16; Numbers 6:13-21.)
 Problem of conflict of laws has a very ancient history from
the time of ancient Egypt, Rome and Greek
 Various Methods were used to deal with the matter Like:
 In Greek ,Special Courts for cases in which foreigners
involved
 In Rome Special Law, Jus gentium i.e "general principles of law
common to all nations” was applied Instead of the jus civile.
alsocontinued
John 18:31 ("Then Pilate said . . . take ye
and judge him according to your."); see also
Acts 16:16-24; Acts 25:10-12; Luke 23:6,7.
 It is generally agreed that the conflict of laws as
we know it today began to emerge in the early
part of the thirteenth century in Italy. Magister
Aldricus, who is called by many as “the father of
the conflict of laws”, developed the proposition
that in certain cases the court might apply the law
of another state. He suggested that whenever a
foreign element was present, the court should look
to both the law of the forum and the law of the
other place or places with which the case was
connected.
 He underscored, whenever the law of the forum
Development ctd…
Middle Ages
Conflict of laws as we know it emerged
around 13th c In Italian City States
Mgistur Aldricus ( The Father of Conflict
of Laws ) Developed the first choice of law
rule
Suggested that “ Court must apply the law
with the significant contact with the case
and the most effective and useful law”
 Critics: Vague
Development ctd..
The Statutory Theory
 Foreign defendant should be governed by his
National or personal law wherever he may be
 Place of Cause of action immaterial personal law
follows the person
 Critics: A person did not carry all of his national or
personal law with him
 Classification of Statutes in to real and personal
statutes
Real statutes do not have extra territorial applicability. E.g.
Rules governing immovable are the laws of the situs.
Personal statutes follow the Person. E.g. Matters relating
to status and movables governed by defendants national
law.
Development ctd…
Difficulty of Classification of statutes in to
real and personal and the consequent
development of third category “Mixed
statutes” by d'Argentrè.
Mixed statutes have same effect as Real
statutes.
Development Ctd..
16th Century development and the French
jurist Du Moulin’s Party autonomy in
contract cases.
 contract should be governed by the law
intended by the parties.
17th century Emergence of “Territoriality
Theory” by Dutch Jurists along with the
concept of sovereignty
Law should have force only within the
territory of enacting sovereign foreign law
applies only for purpose of comity.
Development ctd…
Modern Times
 Allocation Method (Traditional Choice of law Method )
 in 1840’s German Romanist, Karl von Savigny, who achieved
the important shift of focus from classification of rules to
‘consideration of legal relationships’
 The Governmental interest analysis theory
 Developed by David Cavers, Brainerd Currie, Robert Leflar
 “The Policy Underlying the rule of substantive law and the
interest a state might have in its actual application
determine the out come of the choice of law process.”
 Varieties :
 Value Oriented Approach
 Policy weighing Approach ( Functional Analysis)
 Widely accepted in USA
 Suggested for Ethiopia by R. A. Sedler.
1.7. Development of Conflict of
Laws in Ethiopia: Genesis
 There is no separately enacted law of conflict of
laws to guide judges in Ethiopia.
 A number of attempts have been made to draft
the Private International law rules.
Renè David’s draft during civil code codification
 Rejected for no apparent reason
1976 E.C. The Short-Term Law Revision Committee
 Not adopted
 R.A. Sedler's personal draft
 No Action taken
The Federal Draft Conflict of law Rules by the Justice
and legal Systems Research Institute
 Not adopted
Development in Ethiopia
Ctd..
Despite no Proclamation Courts entertain Cases
of conflict of laws
Ethiopian courts assume Judicial Jurisdiction if:
 Defendant is Ethiopian national or domiciliary
 Cause of action arise in Ethiopia.
Choice of law: Nationality and Domicile as
connecting Factors
No Consistent trend followed by courts resulted
in hampered of case law jurisprudence
The problem intensified by the Current Federal
arrangement
 Both Inter- state (International)and intra-state ( National )
Conflict of laws arise in Ethiopia.