THE LAW OF THE PLACE

The law of the place, like the personal law provides a fairly straight forward test and
one which, unlike the personal law, can be applied automatically. The law of the place where
something was done or something happened also seems perfectly sensible.

LEX DOMICILII:
The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws.
Conflict is the branch of public law regulating all lawsuits involving a "foreign" law
element where a difference in result will occur depending on which laws are applied.
When a case comes before a court and all the main features of the case are local, the court
will apply the lex fori, the prevailing municipal law, to decide the case. But if there are
"foreign" elements to the case, the forum court may be obliged under the Conflict of Laws
system to consider:

e whether the forum court has jurisdiction to hear the matter or not;
e it must then characterize the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
o then apply the choice of law rules to decide the lex causae, i.e. which law is to be
applied to each class.

The lex domicilii is a common law choice of law rule applied to cases testing the status and
capacity of the parties to the case. The civil law states use a test of either lex patriae (the law
of nationality) or the law of habitual residence to determine status and capacity.

LEX LOCI CELEBRATIONIS:

The lex loci celebration is the Latin term for "law of the place where the marriage is
celebrated" in the Conflict of Laws. Conflict is the branch of public law regulating all
lawsuits involving a "foreign" law element where a difference in result will occur
depending on which laws are applied. When a case comes before a court and all the main
features of the case are local, the court will apply the lex fori, the prevailing municipal law,
to decide the case. But if there are "foreign" elements to the case, the forum court may be
obliged under the Conflict of Laws system to consider:

o whether the forum court has jurisdiction to hear the case;

e it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
o then apply the choice of law rules to decide which law is to be applied to each ss.

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 the validity of a
The lex loci celebration is a choice of law rule applied to cases testing
nd and a person habitually
marriage. For example, suppose that a person domiciled in Scotla
c marriage ceremony
resident in France, both being of the Islamic faith, go through an Islami
is not registered with
in Pakistan where their respective families originated. This ceremony
in Karachi. After a
the Pakistani authorities but they initially establish a matrimonial home
whether they are now
year, they return to Europe. For immigration and other purposes,
because that is the most
husband and wife would be referred to the law of Pakistan
the ceremony they went
immediately relevant law by which to decide precisely the nature of
in fact sufficient to create
through and the effect of failing to register it. If the ceremony was
raised under their
a valid marriage under Pakistani law and there are no public policy issues
the lex fori, they will be
personal laws of lex domicilii or habitual residence, and under
e.
treated a validly married for all purposes, i.e. it will be an in rem outcom

LEX LOCI CONTRACTUS:

where the contract is
The lex loci contractus is the Latin term for "law of the place
law regulating all lawsuits
made" in the Conflict of Laws. Conflict is the branch of public
occur depending on
involving a "foreign" law element where a difference in result will
main features of the
which laws are applied. When a case comes before a court and all the
pal law, to decide the
case are local, the court will apply the lex fori, the prevailing munici
may be obliged under
case. But if there are "foreign" elements to the case, the forum court
the Conflict of Laws system to consider:
m of forum
o whether the forum court has jurisdiction to hear the case (see the proble
shopping);
the case to its
o it must then characterise the issues, i.e. allocate the factual basis of
relevant legal classes; and
each class.
o then apply the choice of law rules to decide which law is to be applied to
d to cases testing the
The lex loci contractus is one of the possible choice of law rules applie
Canada and a person
validity of a contract. For e.g., suppose that a person domiciled in
meet in New York
habitually resident in France, make a contract by e-mail. They agree to
law rules would be:
State to record a CD of hip hop music. The possibly relevant choice of
the parties had
o the lex domicilii and law of habitual residence to determine whether
the capacity to enter into the contract;
neither party left
o the lex loci contractus which could be difficult to establish since
in the several
their own states (reliance on postal rules for offer and acceptance
putative lex causae might produce different results);

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 o the lex loci solutionis might be the most relevant since New York is the most closely
connected to the substance of the obligations assumed,;
o the proper law; and
o the lex fori which might have public policy issues if, say, one of the parties was an
infant.

LEX LOCI SOLUTIONIS:

The lex loci solution is the Latin term for "law of the place where relevant performance
occurs" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits
involving a "foreign" law element where a difference in result will occur depending on
which laws are applied.

When a case comes before a court and all the main features of the case are local, the court
will apply the lex fori, the prevailing municipal law, to decide the case. But if there are
""foreign" elements to the case, the forum court may be obliged under the Conflict of Laws
system to consider:

e whether the forum court has jurisdiction to hear the case (see the problem of forum
shopping);
e it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
e then apply the choice of law rules to decide which law is to be applied to each class.

The lex loci solution is one of the possible choice of law rules applied to cases testing the
validity of a contract and in tort cases. For example, suppose that a person domiciled in
Bolivia and a person habitually resident in Germany, make a contract by e-mail. They agree
to meet in Arizona to research a book. The possibly relevant choice of law rules would be:

e the lex domicilii, lex patriae or the law of habitual residence to determine whether the
parties had the capacity to enter into the contract;
e the lex loci contractus which could be difficult to establish since neither party left
their own states (reliance on postal rules for offer and acceptance in the several
putative lex causae might produce different results);
e the lex loci solutionis might be the most relevant since Arizona is the most closely
connected to the substance of the obligations assumed;
o the proper law; and
® the lex fori which might have public policy issues if, say, one of the parties was an
infant.

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LEX LOCI DELICTI COMMISSI:
"law of the place where the tort was
The lex loci delicti commissi is the Latin term for
branch of public law regulating all
committed"” in the Conflict of Laws. Conflict is the
e a difference in result will occur
lawsuits involving a "foreign" law element wher
comes before a court and all the main
depending on which laws are applied. When a case
lex fori, the prevailing municipal law,
features of the case are local, the court will apply the
to the case, the forum court may be
to decide the case. But if there are "foreign" elements
der:
obliged under the Conflict of Laws system to consi

o whether the forum court has jurisdiction to hear the case

factual basis of the case to its
o it must then characterise the issues, i.e. allocate the
relevant legal classes; and
lex causae, i.e. which law is to be
o then apply the choice of law rules to decide the
applied to each class of issue or to the case as a whole.
choice of law rules applied to cases
The lex loci delicti commissi is one of the possible
a person domiciled in Australia and a
arising from an alleged tort. For example, suppose that
espondence by e-mail that is alleged to
person habitually resident in Albania, exchange corr
bly relevant choice of law rules would
defame a group of Kurds resident in Turkey. The possi
be:
but this might be difficult because
o the lex loci solution is might be the most relevant
selves corresponded from two
three laws might equally apply, i.e. the parties them
correspondence was published in
states but the damage was not sustained until the
Turkey;
ection with the substance of
e he proper law which is the law which has the closest conn
the wrong alleged to have been committed; and
if, say, one of the parties was an
o the lex fori which might have public policy issues
dictions having involvement over a
infant or there was the possibility of multiple juris
world-wide internet issue.

LEX SITUS:
place in which property is situated for
The term lex situs (Latin) refers to “the law of the
property may subject to tax pursuant to
the purposes of the Conflict of laws”. For example,
the domicile of its owner. Conflict is the
the law of the place of the property or by virtue of
a "foreign" law element where a
branch of public law regulating all lawsuits involving
are applied. When a case comes
difference in result will occur depending on which laws fori,
are local, the court will apply the lex
before a court and all the main features of the case

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 the prevailing municipal law, to decide the case. But if there are "forei
gn" elements to the
case, the forum court may be obliged under the Conflict of Laws system
to consider:
o whether the forum court has jurisdiction to hear the case (see the proble
m of forum
shopping);
* it must then characterise the issues, i.e. allocate the factual basis of
the case to its
relevant legal classes; and
¢ then apply the choice of law rules to decide which law is to be applie
d to each class.
The lex situs is a choice of law rule applied to identify the lex causae
for cases involving
title to, or the possession and use of property.

In law, there are two types of property:

* Real property is land or any permanent feature or structure above or below

the surface.
Ownership of land is an aspect of the system of real property or realty
in common law
systems (immovable’s in civil law systems and the Conflict of Laws).
¢ All other property is considered personal property or personality
in common law
systems (movables in civil law systems and the Conflict of Laws),
and this property is
either tangible or intangible, i.e. it is either physical property that can be
touched like a
computer, or it is an enforceable right like a patent or other form
of intellectual
property.
The term lex situs is applied only to immovable property and lex loci
rei sitae ought to be
used when referring to the law of the situs of movable property
but this distinction is less
common today and is ignored for the purposes of the Conflict pages
on the Wikipedia. Land
has traditionally represented one of the most important cultural and
economic forms of
wealth in society. Because of this historical significance, it is
vital that any judgment
affecting title to or the use of the land should be enforceable with
the minimum of difficulty.
Hence, compliance with the lex situs should produce a judgment
in rem.
LEX FORI:
In Conflict of Laws, the Latin term lex fori literally means
the "law of the forum" and it is
distinguished from the lex causae which is the law the forum actually
applies to resolve the
particular case. Sovereignty comes into being through a
process of recognition by the
international community in which a de facto state is formally accepted
as a de jure state and
$0 becomes the legitimate government with territorial control over
a defined area of land and
all the people who reside within its borders. One of the most important
sovereign powers of
any government is to enact laws and to define the extent of
their application.

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Some laws will apply to all the land and its peoples. Others will be of more limited
application. These laws will be applied through different bodies and institutions. Some will
be formally constituted as courts. Other bodies will exercise specific functions within quasi-
judicial, administrative, religious or other frameworks. When a lawsuit is instituted and the
court has accepted that it has jurisdiction, the parties will normally expect the local laws to
apply, reflecting a presumption of territoriality? That each state is sovereign within its own
borders and the laws of no other state or international body will apply extraterritorially or
supranationally. If foreign laws did apply, the state would be less than sovereign within its
own borders. However, as social mobility has increased and the internet encourages people
to trade across national boundaries, a need to recognise the relevance and importance of
foreign laws to dispute resolution has arisen. Hence, within the precise limits set by the lex
fori, local courts may sometimes apply one or more foreign laws as the lex causae if the
local politics, public policy and the dictates of justice require it.

LEX PATRIAE:
The term lex patriae is Latin for “the law of nationality in the Conflict of Laws” which is
the system of public law applied to any lawsuit where there is a choice to be made between
several possibly relevant laws and a different result will be achieved depending on which law
is selected. When a case comes before a court and all the main features of the case are local,
the court will apply the lex fori, the prevailing municipal law, to decide the case. But if there
are "foreign" elements to the case, the forum court may be obliged under the Conflict of
Laws system to consider:

e whether the forum court has jurisdiction to hear the case;

e it must then characterise the issues, i.e. allocate the factual basis of the case to its
relevant legal classes; and
e Then apply the choice of law rules to decide the lex causae, i.e. which law is to be
applied to each class.

The lex patriae is a civil law choice of law rule (in some states, the law of habitual residence
is used) to test the status and capacity of the parties to the case. For e.g., suppose that a
person with a nationality in Denmark decides to take a "round-the-world" trip. It would be
inconvenient if this person's legal status and capacities changed every time he or she entered
a new state, e.g. that he or she might be considered an infant or an adult, married or free to
marry, bankrupt or creditworthy, etc., depending on the nature of the laws of the place where
he or she happened to be.

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 Assuming that there are no public policy issues raised under the relevant lex fori, the
lex patriae should apply to define all major issues and so produce an in rem outcome no
matter where the case might be litigated.

The common law states use a test of lex domicilii (the law of domicile) to determine
status and capacity. Because the lex patriae choice of law rule may select the law of a
country that contains more than one legal system, there must be rules to determine which of
the several possible laws might apply (e.g. a reference to the law of the United States is
actually a reference to one of the U.S. states).

A supranational example of this selection process is contained in Article 19 of the Rome

Convention:

STATES WITH MORE THAN ONE LEGAL SYSTEM:

1. Where a State comprises several territorial units each of which has its own rules of law in
respect of contractual obligations, each territorial unit shall be considered as a country for the
purposes of identifying the law applicable under this Convention.

2. A State within which different territorial units have their own rules of law in respect of
contractual obligations shall not be bound to apply this Convention to conflicts solely
between the laws of such units.

HAGUE CONVENTION
The Hague conference on private international law ( HCCH ) is a global
intergovernmental organisation in the area of private international law that develops several
international conventions, protocols and principles. A melting pot of different legal
traditions, it develops and services multilateral legal instruments, which responds to global
needs. The Hague conference held its first meeting in 1893, on the initiative of T.M.C.
Asser. In 1911 T.M.C. Asser received the Nobel prize for peace for his work in the field of
private international law, and in particular for his achievements with respect to the HCCH.
The Hague conference had its first session back in 1893 and became a permanent
intergovernmental organisation after its seventh session in 195land the statute came into
force on 15™ July 1955.
ETIMOLOGY :
The acronym HCCH is derived from using the respective capitals of the phrases “ Hague
Conference ” and “Conference de la Haye”. It represents the bilingual nature of the HCCH,
which has both English and French as its working languages.

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