ONFLICT OF LAWS.

This phrase is used to signify that the laws of different countries, on the subjectmatter to bedecided, are in opposition to each other; or that certain laws of the same country are cont
radictory.
2. When this happens to be the case, it becomes necessary to decide which law is to be obeyed.
This subject hasoccupied the attention and talents of some of the most learned jurists, and their labor
s are comprised in many volumes. Afew general rules have been adopted on this subject, which will h
ere be noticed.
3. - 1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. Th
e laws of every state,therefore, affect and bind directly all property, whether real or personal, within its
territory; and all persons who are residentwithin it, whether citizens or aliens, natives or foreigners; an
d also all contracts made, and acts done within it. Vide Lex Locicontractus; Henry, For. Law, part 1, c.
1, 1; Cowp. It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, thatambassadors and other pu
blic ministers, while in the territory of the state to, which they are delegates, are exempt from thelocal
jurisdiction. Vide Ambassador. And the persons composing a foreign army, or fleet, marching through,
or stationed inthe territory of another state, with whom the foreign nation is in amity, are also exempt f
rom the civil and criminal jurisdictionof the place. Wheat. Intern. Law, part 2, c. 2, Sec. 10; Casaregis,
Disc. 136-174 vide 7 Cranch, R. 116.
4. Possessing exclusive authority, with the above qualification, a state may regulate the manner an
d circumstances,under which property, whether real or personal, in possession or in action, within it s
hall be held, transmitted or transferred,by sale, barter, or bequest, or recovered or enforced; the condi
tion, capacity, and state of all persons within it the validity ofcontracts and other acts done there; the r
esulting rights and duties growing out of these contracts and acts; and theremedies and modes of ad
ministering justice in all cases. Story, Confl. of Laws, Sec. 18; Vattel, B. 2, c. 7, Sec. 84, 85;Wheat. Int
ern. Law, part 1, c. 2, Sec. 5.
5. - 2. A state or nation cannot, by its laws, directly affect or bind property out of its own territory, or
persons not residenttherein, whether they are natural born or naturalized citizens or subjects, or other
s. This result flows from the principle thateach sovereignty is perfectly independent. 13 Mass. R. 4. To
this general rule there appears to be an exception, which isthis, that a nation has a right to bind its ow
n citizens or subjects by its own laws in every place; but this exception is not tobe adopted without so
me qualification. Story, Confl. of Laws, Sec. 21; Wheat. Intern. Law, part 2, c. 2, Sec. 7.
6. - 3. Whatever force and obligation the laws of one, country have in another, depends upon the l
aws and municipalregulations of the latter; that is to say, upon its own proper jurisprudence and polity,
and upon its own express or tacitconsent. Huberus, lib. 1, t. 3, Sec. 2. When a statute, or the unwritte
n or common law of the country forbids the recognitionof the foreign law, the latter is of no force what
ever. When both are silent, then the question arises, which of the conflictinglaws is to have effect. Wh
ether the one or the other shall be the rule of decision must necessarily depend on a variety ofcircum
stances, which cannot be reduced to any certain rule. No nation will suffer the laws of another to interf
ere with herown, to the injury of her own citizens; and whether they do or not, must depend on the co
ndition of the country in which thelaw is sought to be enforced, the particular state of her legislation, h
er policy, and the character of her institutions. 2 Mart.Lo. Rep. N. S. 606. In the conflict of laws, it mus
t often be a matter of doubt which should prevail; and, whenever a doubtdoes exist, the court which d
ecides, will prefer the law of its own country to that of the stranger. 17 Mart. Lo. R. 569, 595,596. Vide
, generally, Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws; Foelix, Droit Inter
n.; Huberus,De Conflictu Leguin; Hertius, de Collisions Legum; Boullenois, Traits de la personnalite' e
t de la realite de lois, coutumes etstatuts, par forme d'observations; Boullenois, Dissertations sur des
questions qui naissent de la contrariete des lois, et descoutumes.

Conflict Of Laws Rules

The power of a state to determine the limits of the jurisdiction of its courts and the character of the
controversies which shall be heard in them is subject to the restrictions imposed by the Federal
Constitution. The Contract Clause, the Full Faith and Credit Clause, and the Privileges or Immunities
Clause, restrict the freedom of a state to deny access to its courts howsoever much it may regard

such withdrawal of jurisdiction the adjective law of the state, or the exercise of its right to regulate the
practice and procedure of its courts. A state cannot escape its constitutional obligations by the simple
device of denying jurisdiction in such cases to courts otherwise competent[i]. The Full Faith and
Credit ClauseArticle IV, Section 1, of the U.S. Constitutionprovides that the various states must
recognize legislative acts, public records, and judicial decisions of the other states within the United
States.
Subject to the above constitutional restrictions, states are free to adopt such rules of conflict of laws
that they choose. The Full Faith and Credit Clause does not compel a state to adopt any particular
set of rules of conflict of laws. It merely sets certain minimum requirements which each state must
observe when asked to apply the law of a sister state[ii]. Every state is empowered under the United
States Constitution to establish laws, through both its judicial and its legislative arms, which are
controlling upon its inhabitants and domestic affairs. When there is a demand in the domestic forum
that the operation of domestic laws be replaced by the statute of another state, the domestic forum is
not bound, apart from the Full Faith and Credit Clause, to yield to the demand. The law of neither
state can, by its own force, determine the choice of law for the other[iii.]
In order to resolve the issue of conflict of laws, the court initially considers if contacts with a state are
sufficient to make application of that states laws consistent with due process, provided such contacts
are not too slight and casual. Under the provision of the Federal Tort Claims Act which renders the
United States liable for the torts of its employees, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the act
or omission occurred. Where more than one state has sufficiently substantial contact with multi-state
activity, the forum state, by analysis of the interests possessed by the states involved, can
constitutionally apply to the decision of the case, the law of one or another state having a sufficient
interest in the multi-state activity; consequently, a state court may apply either the law of the place
where the injury occurred or the law of the place where the negligence occurred[iv].
Choice of laws[edit]
Courts faced with a choice of law issue have a two-stage process:
1. the court will apply the law of the forum (lex fori) to all procedural matters (including, selfevidently, the choice of law rules); and
2. it counts the factors that connect or link the legal issues to the laws of potentially relevant
states and applies the laws that have the greatest connection, e.g. the law of nationality (lex
patriae) or residence (lex domicilii)[domicilium in Latin means home or residence and see at
'European Harmonization Provisions':"The concept of habitual residence is the civil law
equivalent of the common law test of lex domicilii".] will define legal status and capacity, the
law of the state in which land is situated (lex situs) will be applied to determine all questions
of title, the law of the place where a transaction physically takes place or of the occurrence
that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the
matter is substantive, but the proper law has become a more common choice.[4]
Private international law on marriages and legal dissolution of marriages (divorce)[edit]
Main article: Conflict of marriage laws
In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is
local and the property is local, then the court applies its domestic law lex fori. The case becomes

more complicated if foreign elements are thrown into the mix, such as when the place of marriage is
different from the territory where divorce was filed; when the parties' nationalities and residences do
not match; when there is property in a foreign jurisdiction; or when the parties have changed
residence several times during the marriage.
Whereas commercial agreements or prenuptial agreements generally do not require legal formalities
to be observed, when married couples enter a property agreement, stringent requirements are
imposed, including notarization, witnesses, special acknowledgment forms. In some countries, these
must be filed (or docketed) with a domestic court, and the terms must be "so ordered" by a judge.
This is done in order to ensure that noundue influence or oppression has been exerted by one
spouse against the other. Upon presenting a property agreement between spouses to a court of
divorce, that court will generally assure itself of the following factors: signatures, legal formalities,
intent, later intent, free will, lack of oppression, reasonableness and fairness, consideration,
performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of
contractual bargaining apply in the context.
Private international law on unmarried persons[edit]
Unlike marriage which has an international recognised legal status, there are no international treaties
on recognition of unmarried couple's legal status. If an unmarried couple change residence to
different countries, then the local law on where the couple is last domiciled is applied to them. This
covers legal status of the relationship, rights, obligations, and all worldwide movable and immovable
property. To otherwise interpret the law would mean if the unmarried couple had assets in several
different countries, they would then need separate legal cases in each country to resolve all their
movable and immovable property.[citation needed]
In the absence of a valid and enforceable agreement for an unmarried couple, heres how the conflict
of law rules work:

Full Mutability Doctrine property relations between the unmarried couples are governed by
their latest domicile, whether acquired before, during or after the relationship.

Contracts[edit]
Many contracts and other forms of legally binding agreement include a jurisdiction
or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection
clause). Then, choice of law clauses may specify which laws the court or tribunal should apply to
each aspect of the dispute. This matches the substantive policy of freedom of contract. Judges have
accepted that the principle of party autonomy allows the parties to select the law most appropriate to
their transaction. This judicial acceptance of subjective intent excludes the traditional reliance on
objective connecting factors;[citation needed] it also harms consumers as vendors often impose one-sided
contractual terms selecting a venue far from the buyer's home or workplace.
Harmonization of laws[edit]
To apply one national legal system as against another may never be an entirely satisfactory
approach. The parties' interests may always be better protected by applying a law conceived with
international realities in mind. The Hague Conference on Private International Law is a treaty
organization that oversees conventions designed to develop a uniform system. The deliberations of
the conference have recently been the subject of controversy over the extent of cross-border
jurisdiction on electronic commerce anddefamation issues. There is a general recognition that there is
a need for an international law of contracts: for example, many nations have ratified the Vienna
Convention on the International Sale of Goods, the Rome Convention on the Law Applicable to
Contractual Obligations offers less specialized uniformity, and there is support for
the UNIDROIT Principles of International Commercial Contracts, a private restatement, all of which
represent continuing efforts to produce international standards as the internet and other technologies

encourage ever more interstate commerce. But other branches of the law are less well served and
the dominant trend remains the role of the forum law rather than a supranational system for Conflict
purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has
failed to produce a universal system for the common market. Nevertheless, the Treaty of Amsterdam
does confer authority on the Community's institutions to legislate by Council Regulation in this area
with supranational effect. Article 177 would give the Court of Justice jurisdiction to interpret and apply
their principles so, if the political will arises, uniformity may gradually emerge in letter. Whether the
domestic courts of the Member States would be consistent in applying those letters is speculative.
[citation needed]