Conflict of Law Group 1
According to slacks law dictionary 6th edition at page 816, international law was defined as those laws governing the legal relationship between nation rules and principles of general application dealing with the conduct of nations and of international organisation and their relations inter so as well as with persons, national or juridical.
DEFINITION OF CONFLICT OF LAWS.
Conflicts of laws or private international law are a set of procedural rules that determines which legal system and which jurisdiction apply to a given dispute. These rules apply when a legal dispute has a foreign element such as a contract agreement between parties located in different countries, although this foreign element also exist in multi-jurisdictional countries.
The term conflicts of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which laws applies and the common law courts manners of resolving the conflict between those laws.
Conflicts of laws can be seen in three ways:
Jurisdiction: this talks about whether the forum court has the power to resolve the dispute at hand
Choice of laws: this has to do with the laws which are being applied to resolve the dispute.
Foreign judgement: it concerns the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum.
CONCEPT OF JURISDICTION
JURISDICTION refers to the power of a court to decide a case that is to render a decision that will be recognised and enforced by the authorities and other courts. Jurisdiction can be in two forms, jurisdiction over parties and over the subject matter.
Jurisdiction draws its substance from public law, conflict of laws, constitutional law and the powers of the executive and legislatives branches of government to allocate resources to best serve the needs of its native society. The first question in an international case potentially involving conflict of lawsproblems is which court has jurisdiction to adjudicate the matter.
Jurisdiction in his broadest sense of a state may refer to its lawful power to act and hence its power to decide whether and if so, how to act, whether by legislative, executive or judicial means. It connotes the power of the state under international law to regulate or otherwise impact upon people, property and circumstance and reflects the basic principle of state sovereignty, equality of state and non-interference in domestic affairs.
More so, in the case of Commissioner for rural development and chieftaincy matters (anambra state ) v Ezemokure. The court held that; a court is said to have jurisdiction with regards to a suit or proceedings when it has power to hear and determine or exercise any judicial power therein.
The rule as to jurisdiction determines whether or not a court can hear a case. More precisely, they identify the country or countries whose court can appropriately deal with a case.
It must be noted that the notion of an appropriate forum for the resolution of a dispute is a complex one and its understood in different forms and different legal tradition.
According to Raymond Smith, jurisdiction concerns the competence of courts and other tribunals to determine dispute with an authority which will make the decision binding and enforceable within their own system and capable of potential recognition and enforcement by the court and tribunal of other countries.
For the furtherance of this paper, it will be appropriate to talk briefly on jurisdiction based on domicile. The principal basis of jurisdiction is that set out in article 2(1) of Brussels convention that person domiciled in a member shall, whatever their nationality, be sued in the courts of that state. This can be seen in the light of the basic rules of general jurisdiction and it requires a link between the defendant and the chosen court.
The defendant must have a domicile in the member state at the time of the issue of proceedings or claim form, rather than its service on the defendant. This can be seen in the case of Canada trust co vsstolzembrg 2002 1 ACI. Where the defendant is not domicile in another member state, the jurisdictional rules applicable are those of the national laws of the forum.
TYPES OF JURISDICTION.
There are two types of jurisdiction
1 jurisdiction in personam
2 jurisdiction in rem.
JURISDICTION IN PERSONAM
In personam is a latin phrase meaning “directly toward a particular person”. In a lawsuit in which the case is against a specific individual, that person must be served with a summon and complaint to give the court jurisdiction to try the case, and the judgement applies to that person and is called an “in personam judgement”.
It is an action against a particular person or persons in order to settle the rights of parties as between themselves. The judgement in such actions normally binds only the parties themselves, unless it is a judgement in rem.
The basic rule is that, a person must be served with a writ of summons before he appears before a Nigerian court in an action in personam. See Order no 12,Rule 1 of the H.C(civil procedures) Rules of various states.
Jurisdiction in personam or personal jurisdiction relates to the question of whether someone from another state or country can be forced to come to the forum state or country; this is the country where the lawsuit is filed to defend against the lawsuit. The existence of personal jurisdiction depends upon a sufficient connection between the defendant and the forum state to make it fair to require the defence of the action in the forum state to make it fair to require the defence of the action in the forum state otherwise known as lexfori.
In personam is the power of the court to adjudicate the personal legal rights of parties properly brought before it. The law requires that the court not only have jurisdiction over both parties to the action. Due process of law requires appearance or service of process (notice of pendency of law suit) before the defendant can be personally bound by any judgement in line with Raymond Smith’s opinion what concerns “jurisdiction” is the competence of court and other tribunal to determine disputes with an authority which will make the decision binding and enforceable within their own system, and capable of potential recognition and enforcement by the courts and the tribunals of other countries.
It should be noted that mere presence of a person in the country may confer jurisdiction on the courts of that country [PENNOYER V NEFF 95 U.S 714 (1878)]. In the instance where the presence is what confers jurisdiction in the united states, it is referred to as “Gotcha” and it is a way which court can acquire jurisdiction in web-based activities where the court obtains jurisdiction over an out-of-state defendant, provided that when he visits the state,that person is served with a summon and a complaint (documents that give the person notice of the lawsuit. This was applied to the case of the Russian programmer sued by the publishers of e-book (Adobe). While attending a Nevada, he was served with a notice and was subsequently arrested, it should however be stated that every action in High court commences with the issue of a writ or sometimes an originating summon and the service of the writ or something equivalent is essential as the foundation of the court’s jurisdiction.
Jurisdiction in personam can also be seen in the following aspects;
3. Branches and agencies
The judgements regulation provides;
“a person domiciled in a member state may, in another member state, be sued in matters relating to a contract, in the courts for the place of performance of the obligation in question”
The first provision to be considered concerns “matters relating to a contract”. This will include cases where there is disagreement as to the very existence of the contract, but not cases in which the subject matter is a duty to contract, but not cases in which the subject matter is a duty to conduct pre-contractual negotiations in good faith.
The Judgements Regulation provides:
“ a person domiciled in a member state may, in another member state, be sued in matters relating to tort, delict or quasi-delict in the courts for the place where the harmful event occurred or may occur.”
Despite the apparent attempt to pick up terms “tort”, “delict” and “quasi-delict”, used in various legal systems, the phrase has an independent “Regulation” meaning. It covers actions calling into question the liability of the defendant outside the field of matters relating to contract. The effect of so defining the scope of actions in tort at the claimant’s option; if the claim arises out of an agreement, it must be pursued as a claim in contract.
BRANCHES AND AGENCIES
Of greater importance is the provision in the Judgements Regulation about branches and agencies.
“a person domiciled in a member state may, in another member state, be sued as regards disputes arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”.
There were no provisions as to trusts in the original Brussels convention as the trust device was unknown in the law of the signatory states. The text has made provision for trusts since the Accession convention of 1978, and theRegulation now provides that “a person domiciled in a member...
The Nigerian law and a foreign law holds diametrically opposed views upon the correct classification of a particular legal issue. For example, the applicable law to movables left by a deceased person could/or may relate to the question of administration of estates in Nigeria while the foreign laws may relate it to succession.
Although various compromise solutions have been advocated, the principal contenders are characterization by the LEX CAUSAE. Another, the analytical jurisprudence and comparative law approach is also discussed.
CHARACTERIZATION BY THE LEX FORI
Writers such as Khan and Bartin believed that such characterization should be governed by the law of the forum. That is, where a judge is faced with the situation, the judge should characterize the lex fori i.e. domestic law and the lex (causae) and apply the lex fori that is nearest in equivalent to the lex causae. Khan and Batin believe that characterization must be done in terms of law and not in terms of issues. They assert that the forum should characterize rules of foreign law in accordance with the nearest equivalent in its own domestic law. In OGDEN V OGDEN, the court characterized by the LEX FORI. The argument in favor of this view is that if foreign law were to be applied, LEX FORI would lose control over the application of its own conflict rules and will lose power.
However, LEX FORI presents the following problems,
A. Arguing by analogy from a rule of domestic law to that of foreign law can be equated to engaging in an objectionable mechanical jurisprudence resulting in the forum seriously distorting the foreign law and applying it in cases where it need not be applied and vice-versa. In future it may result in a case where the law to be applied is neither that of the forum, the foreign law nor that of any other country.
B. There is no solution for cases where there is no close analogy to the foreign law or any institution in the domestic law of the forum.
CHARACTERIZATION BY THE LEX CAUSAE
This means that where a judge is faced with a case, he should apply the foreign law which governs the question. Writers such as WOLFF, DESPAGNET believe that characterization must be governed by the appropriate foreign law (LEX CAUSAE). WOLFF, a strong advocate of this school of thought is of the view that every legal rule takes its characterization from the legal system to which it belongs. In RE-MALDONADS (1954), the English court of appeal was faced with the task of deciding whether the Spanish government’s claim to the movables in England of a Spanish intestate who died without a next of kin was a right of succession (in which the Spanish government was entitled to the movable) or JUS REGALE (in which the English crown was entitled). The court held that this question must be decided in accordance with Spanish law with the result being that the Spanish government was entitled.
However, this view presents the following problem;
A. It is a circular argument to say that foreign law governs the process of characterization before the process of characterization has led to the selection of foreign law
B. In cases where there are two applicable foreign laws, which one would be applied and what would be the basis of the forum adopting the characterization of one over the other.
CHARACTERIZATION BY ANALYTICAL JURISPUDENCE
Writers such as Rabd believe that characterization should be governed by the rules of analytical jurisprudence and comparative law. That is, the judge should use the scope of the law to determine and compare the law of the countries involved and choose the one which will dispense justice more fairly. The argument in favor of this approach is that judicial technique in conflict cases must be more international and less insular than in domestic cases.
The arguments against this approach are as follow,
1. There are very few principles of analytical jurisprudence and comparative law that are of universal application. As KAHN-FREUND rightly opined, international agreement on analytical concept is a utopia.
2. While the study of comparative law may reveal differences between domestic laws, it is hardly capable of resolving them. For example, comparative law may reveal that parental consent to marry may sometimes affect formalities or the capacity to marry. But how does it determine how these matters may be characterized
D.) AVOIDING THE CHARACTERIZATION PROBLEMS BY IMPLEMENTING THE RULES OF RECOGNITION
The problem of characterization can be solved by the legislator developing corresponding rules on recognition of foreign acts or documents. An example is found in the relevant succession law of Estonia which contains a general conflict rule on succession, according to which the law of the state of the last residence of the deceased generally applies to succession. Also, under this law a succession certificate prepared in a foreign state is recognized in Estonia if the procedure for the preparation and the legal effect thereof are comparable to the provision of Estonia law concerning succession certificates. Thus, an interesting solution can be achieved if the Nigerian legislature can adopt this Estonian model at least in matters of succession. Though by this method, the Nigerian court might be able to avoid recourse to the conflict rules, it is still required to carry out a comparison between the Nigerian substantive law and the relevant foreign law in other to evaluate whether a person is entitled to inherit.
However, the recourse to recognition and enforcement of foreign acts or documents does not always solve the characterization problem since often such recourse is not possible, if a relevant document or judgment does not exist.
EXCLUSION OF THE FOREIGN LAW
Because the early system of connecting factors was mechanical and inflexible, the results could offend a court’s sense of justice. For example, with the development of motor car, the classification of the cause as tort required the application of the LEX LOCI DELICTI COMMISSI rule. The French court’s insistence on this linkage frequently barred or severely limited relief for French citizens injured in countries that had no developed law for the compensation of such victims. In BABCOCK V JACKSON, 24ON.E 2D 279(NY1963), the Newyork court of appeals abandoned the LEX LOCI DELICTI rule completely. Most jurisdictions were not so radical, preferring to retain the framework of categories and choice of law rules but leave public policy as the avoidance device.
This means that states will not apply “foreign” law that offends the deeply held principles of forum’s state legal system. For instance, it would be considered improper to give enforcement to a law that defined the status of a person as a slave or as in the possession of another e.g. for the purpose of sexual exploitation.
However, in cases involving alleged immorality or injustice, this rule has been criticized as susceptible to abuse, for a court could characterize almost any statute or rule as being offensive to the public policy of their state.
THE MODERN APPROACH
Since the characterization system and the choice of law rule were operating in an inflexible way, the solution has been to allow the growth of judicial discretion within both sides of the system. Hence, most legal systems have opted for the PROPER LAW APPROACH i.e. the identification and application of the law that has the closest connection with the cause(s) of action. In theory, this flexibility will preserve an international outlook and multilateral approach by the courts and in jurisdictions that have adopted this approach, the results are not unencouraging.
Asides LEX SITUS which determines the characterization of property, there is hardly any consistent theory of characterization. In MACMILLAN INC V. BISHOPSGATE INVESTMENT TRUST PLC (NO3)(1996) 1WLR 387,a case which was characterized by the LEX FORI, the dictum of AULD LJ is instructive;
“However classification of an issue and rule of law for this purpose the underlying principle of which is to strive for comity between different legal systems, should not be constrained by particular notions or distinctions of the domestic law of the LEX FORI or that of the competing system of law, which may have no counterpart in other system. Nor should the issue be defined too narrowly, so that it attracts a particular rule under the LEX FORI which may not be applicable under the other system.
From the foregoing, this may look like a call for an international application of the LEX FORI, but this may be applied to other concepts too. Characterization should not be restricted but must be determined based on the fact in issue.
Forum shopping-is the informal name given to the practice adopted by some litigants to have their legal case heard in the court thought most likely to provide a favorable judgment.
Renvoi-literally meaning in French “send back” or “to return unopened” applies whenever a forum court is directed to consider the law of another state.
1. Themes on conflict of laws- I.O Agbede (1989)
2. The conflict of laws- Morris