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;
1. Contract
2. Tort
3. Branches
and agencies
4. Insurance
CONTRACT
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.
TORT
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”.
TRUSTS
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.
CONCLUSION
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.
GLOSSARY
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.
REFERENCES
1.
Themes on
conflict of laws- I.O Agbede (1989)
2.
The conflict of
laws- Morris
3.
http://en.m.wikipedia.org
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