CONFLICTS OF LAW

INTRODUCTION
LECTURE 1
By: MIM. Azver
LL.B (Hons) (Col, LLM (Cardiff, UK)
Attorney at Law & Notary Public
Senior Lecturer in Law
■ Private International Law or International Private Law
governs the choice of law to apply when there are
conflicts in the domestic law of different countries
related to private transactions. This means that there
is a dispute or transaction that involves one of the
following: what jurisdiction applies - choice of court,
forum selection, renvoi (transfer of
proceedings), choice of applicable law, and recognition
or enforcement of a foreign judgment.
■ National laws are the primary sources of Private
International Law. The scope of Private International
Law varies from country to country and each
jurisdiction has its own rules. In the United States,
Canada, and Great Britain the term conflict of laws is
more popular.
■ Private International Law deals with a variety of topics, such as
(international) contracts, torts (lex loci delicti), family matters,
recognition of judgments, child adoption and abduction, real property
(lex rei sitae), intellectual property. In addition to the rules by made
national authorities, treaties, model laws and other instruments have
been brought in by international organizations to regulate the area of
transnational disputes: the International Institute for the Unification of
Private Law (UNIDROIT) and the Hague Conference on Private
International Law. The Hague Conference has seen impressive growth of
both its membership and the range of States Parties to its Conventions.
■ Globalisation has encouraged the proliferation of
private international law-making at national, regional
and global levels. It has given a huge boost to private
international law activities of legislators as well as
judges around the world.
■ At the regional level, in the Americas, the Organisation
of American States (OAS) and Mercosur have adopted
a wide range of private international law instruments,
while in Europe, the European Union has acquired
powers to legislate in the field of private international
law.
■ The term ‘Private International Law’ was coined by
American lawyer and judge, Joseph Story, but was
surrendered in this way by common law researchers and
grasped by Civil law lawyers. Private International Law or
the conflict of laws is that department of legal service,
which is connected when two or more sets of legitimate
frameworks are in a struggle with each other over a given
issue.
■ It may be a set of procedural rules that decides which
lawful framework and which jurisdiction apply to a given
dispute. It has three different names – conflict of laws,
private international law, and international private law,
they are generally interchangeable but none of them is
wholly descriptive.
■ Evolution of private international law in India
■ India, being a diverse country has many distinct cultures and religions
and there have been conflicting personal laws during the British period,
as for different religions different laws were applicable. And also during
the British Period, many traders used to trade outside India and they
came up with various kinds of conflict and it was presented before the
Indian courts. And since India was a British colony, hence the courts
applied almost all the rules of the Britishers relating to Private
International Law.
■ Scope of Private International Law
■ When it is proved that there is an involvement of foreign
element, then conflict arises in three areas i.e. (i) choice of
jurisdiction – whether the court has the jurisdiction over a
case or not, (ii) choice of law – which country’s law should be
applied to solve the dispute, (iii) recognition and enforcement
of foreign judgment – the ability to recognize and enforce the
foreign judgment within its jurisdiction.
■ Choice of jurisdiction – the question often arises in the case
of a suit involving the foreign element that whether the court
has the jurisdiction to try the suit or not. These questions can
arise in two circumstances – when the suit is filed then a
question can arise if the court has the jurisdiction or not; and
where the court has given the judgment, then it can be called
upon to ask if it is from the competent jurisdiction or not.
Hence, it is always the first question of the thesis that whether
the court has jurisdiction or not.
■ Choice of law – This question only arises where the
jurisdiction of the court has already been settled. It is an
integral part of all legal systems and basically, it is a practical
necessity. The choice of law is given to serve justice in case of
conflict between the contracting parties. And the other
reasons for applying the law of other forums are to give
respect to the law of the other states and by doing so the
States promote harmony.
■ Recognition and enforcement of foreign judgment –it is
one of the three parts of the conflict of laws besides the
choice of jurisdiction and choice of law. It is the last
question that whether the country is bound to recognize
and enforce the judgments of another country? This
question calls for the determination of ‘sovereignty.
There are so many countries in this world each having an
unequal legal system.
■ The term ‘sovereignty refers to supreme authority within
the state which is free from any external powers. And a
sovereign country is free no to obey the law of another
state in its own state. However, it is not really possible to
be so rigid in today’s time period. Today, the trades are
not restricted within the boundaries of one country only.
■ So, in today’s scenario, if a foreign country gives
judgment, it has to be given effect in another country for
obvious reason, i.e. if one country will not obey the other
decision, that country’s decision will not be obeyed too.
Also, it is in the interest of justice and international
cooperation that foreign judgments should be
recognized and given effect in other countries. The
Indian Civil Procedure Code under sections 13, 14, and
44A has given certain provisions relating to the
recognition of foreign judgments.
■ Conflict of laws refers to a difference between the
laws of two or more jurisdictions with some
connection to a case, such that the outcome depends
on which jurisdiction's law will be used to resolve
each issue in dispute. The conflicting legal rules may
come from U.S. federal law, the laws of U.S. states, or
the laws of other countries.
■ The process by which a court determines what law to
apply is sometimes referred to as "characterization" or
"classification." This determination must be made in
accordance with the law of the forum. A federal
court in a case before it based on diversity of
citizenship, for example, determines the conflict of law
issue as if it were the highest court in the state in
which it is sitting.
■ Courts faced with a choice of law issue generally have two
choices:
1. A court can apply the law of the forum (lex fori) -- which is
usually the result when the question of what law to apply
is procedural.
2. Or the court can apply the law of the site of the
transaction or occurrence that gave rise to the litigation in the
first place (lex loci) -- this is usually the controlling law selected
when the matter is substantive.
■ Conflict of laws signifies the difference between the laws of
two or more jurisdictions that are applicable to a dispute in
question. The results of the case depend upon the selection of
the law to resolve the dispute. The conflict can be between
federal and state laws, among the state laws themselves, or
between the laws of different countries.
■ Federal courts have different rules from those of state courts. That's
because the jurisdiction of federal courts is limited by the constitution.
Federal courts must follow a complex set of rules for determining the
right law to apply in a case of conflicting laws.

■ Legal professionals and scholars in civil law refer to the conflict of laws as
private international law. It is applied to legal disputes that have a
foreign element in them.
■ The principles of conflict of laws are all the more urgent in the
context of the United States since many states have their own
laws that are different from the laws of other states. In 1938,
the Supreme Court gave a ruling that all federal courts must
play by the conflict of laws rules of the state in which they are
hearing the case.
■ States are often restricted by some provisions in the U.S.
Constitution in determining the manner they decide cases. For
example, Article 4 (1) of the Constitution requires every state
to give full credit to the judicial proceedings of other states.
The Supreme Court has made it amply clear that based upon
this constitutional provision, every state must treat the
judgment given by another state as valid and must help in
enforcing the judgment. The only exception to this rule is that
a state need not enforce the penal law claims of another state.
■ If you look at business contracts, you'll find that most of them contain a
clause in the miscellaneous section, which either excludes the principles
of conflict of laws or specify the conflict of laws principles of a certain
state to govern the contract. This provision is usually made to interpret
the agreement outside of the state where the cause of action has
occurred.
■ For example, let's say you have made an agreement with a company in
California. This may give rise to a cause of action in California. However,
you want to apply the laws of Texas to your contract and hence clearly
specify that the contract would be governed by the laws of Texas.
■ Now, most of the states have a law saying that the state where
the cause of action occurs will have a jurisdiction over the
dispute. Due to this, your contract may be governed by the
laws of California despite your express intention to the
contrary. To avoid such unintended hardship, contracts usually
contain an exclusion clause to expressly nullify the provisions
of conflict of laws.
■ The conflict of laws is based upon the principle of choosing the most
rational law to apply in a given case so as to give a fair result. It is known
by different names, but none of them are accurate.
■ In a federal system like the United States where the conflicts
are mainly between different state laws, the term “conflict of
laws” is more popular since these rules are rarely applied
to international issues.
■ However, it's still a general term that also applies to
international disputes. Many criticize the term as
being misleading since the object of these rules is to
resolve the conflicts between different laws rather
than the conflict itself.
■ Thank you