Conflicts of Law

Karla Alexis Afable

Notes:
- Private International Law, of the conflict of laws, is the area of
law that resolves disputes containing a foreign element namely,
some link to a jurisdiction or country other than the forum, in
which legal proceedings are contemplated or have been
instituted. Country in this context refers to a territory that is
subject to one body of law.
- Conflict of Laws contrariety or opposition in the laws of states or
countries in cases where the rights of the parties, from their
relations to each other or to the subject matter in dispute, are
liable to be affected by the laws of both jurisdictions.
Its a term of art, it also includes the deciding which law is in such
cases to have superiority.
It also includes many cases where there is no opposition between
two systems of law, but where the question is how much force
may be allowed to a foreign law with reference to which an act
has been done, either directly or by legal implication, in the
absence of any domestic law exclusively applicable to the case.
Canons:
1. The laws of every state affect and bind directly all property, real
or personal, situated within its territory, all contracts made and
acts done and all persons resident within its jurisdiction, and are
supreme within its own limits by virtue of its sovereignty.
Ambassadors and other public ministers while in the state to
which they are sent, and members of an army marching through
or stationed in a friendly state, are not subject to this rule.
2. Possessing exclusive authority, with the above qualification, a
state may regulate the manner and circumstances under which
property, whether real or personal, in possession or in action,
within it, shall be held, transmitted or transferred, by sale, barter,
or bequest, or recovered or enforced, the condition, capacity, and
state of all persons within it; the validity of contracts and other

3.

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acts done there; the resulting rights and duties growing out of
these contracts and acts; and the remedies and modes of
administering justice in all cases.
Whatever force and obligation the laws of one country have in
another depends upon the laws and municipal regulations of
the latter; that is to say, upon its own proper jurisprudence and
polity, and upon its own express or tacit consent.
The power of determining whether, or how far, or with what
modification, or upon what conditions, the laws of one state or
any rights dependent upon them shall be recognized in another is
a legislative one. The comity involved is a comity of the states,
and not of courts, and the judiciary must be guided in deciding
the question by the principle and policy adopted by the
legislature.
When a statute or the unwritten or common law of the country
forbids the recognition of the foreign law, the latter is of no force
whatever. When both are silent, then the question arises which
of the conflicting laws is to have effect? Each sovereignty must
determine for itself whether it will enforce foreign law.
It is a principle universally recognized that the revenue laws of
one country have no force in another.
The statute of one state giving right of action to enforce a
penalty have no force in another.
Rights of action arising under foreign bankrupt, insolvent, or
assignment laws are not recognized by a state when prejudicial
to the interests of its citizens.
A remedy special to a particular foreign state is not, by any
principle of comity, enforceable elsewhere and must be applied
restrictively.
Generally, force and effect will be given by any state to foreign
laws in cases where from the transactions of the parties, they
are applicable, unless they affect injuriously her own citiznes,
violate her express enactments, or are contra bonus mores.

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11. In general, the mode of conveying, encumbering, transmitting,
devising, and controlling real estate is governed by the law of
the place of situation of the property. Perhaps an exception may
exist in the case of mortgages. The law governing the mortgage,
as such, is the law of the situs of the land which the mortgage
covers; but the debt is goverened by the law of the domicil of the
party to whom it is due, no matter where the property is located.
12. Bills of exchange and promissory notes are to be governed as to
validity and interpretation, by the law of the place of making, as
are other contracts. The resigdence of the drawee of a bill of
exchange and the place of making a promissory note where no
other place of payment is specified is the locus contractus.
13. A statute of limitations of a foreign state providing that an action
on a note shall be brought within a certain time after the cause of
action accrues, bars the debt itself if not brought within the time
limited, and may be pleaded in bar of an action brought on the
note in another state.
14. Chattel mortgages are valid and duly registered under the laws of
the state in which the property is situated at the time of the
mortgage, will be held valid in another state to which the
property is removed, although the regulations there are different,
and it will be enforced in the state to which the property has
been removed, although it would have been invalid if made in
that state.
15. Questions of priority of liens and other claims are, in general, to
be determined by the lex rei sitae even in regard to personal
property
16. The scope of a marriage settlement made abroad is to be
determined by the lex loci contractus, where not repugnant to
the lex rei sitae.
17. In an action brought in one state for injuries done in another, the
statutes and decisions of the courts of the latter state must fix the
liability.

18. The validity of an assignment of documents, such as policies of

insurance or negotiable instruments is determined by the law of
the place where the assignment is made.
19. An assignment of a movable which gives a good title according to
the law of the country where it is situated is recognized as valid
everywhere, whatever the domicil of the parties may be.
20. Executors and administrators, in the absence of a specific statute
authorizing it, have no power to sue or be sued by virtues of a
foreign appointment as such.
21. Guardians have no power over the property, whether real or
personal, of their wards, by virtue of a foreign appointment; they
must have sanction of the appropriate local tribunal.
22. Judgment and decrees of foreign courts relating to immovable
property within their jurisdiction are held binding everywhere.
And the rule is the same with regard to the movables actually
within their jurisdiction.
23. Admiralty proceedings in rem are held conclusive everywhere if
the court had rightful jurisdiction founded on actual possession of
the subject matter.
24. Voluntary assignments of personal property, valid where made,
will transfer property everywhere.
25. Discharges by the lex loci contractus are valid everywhere.
Notes:
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The criterion by which to ascertain whether a particular inquiry

relates to the substance of the contract of the remedy merely is
said to be: suppose the legislature of the locus contractus to
enact the law of the forum, making it applicable to the existing
contract.
o If the result is that the obligation of the contract is either
increased or impaired thereby, then the point to which
the law of the forum relates is part of the obligation or

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substance of the contract and is not merely a matter of

remedy, and the lex loci, not the lexfori, should control.
o If on the other hand, the result is that the obligation of
the contract is not at all affected, being neither
increased nor diminished, then the inquiry relates to a
matter of remedy only, and the lexfori should govern.
Where an action was brought in State M upon a contract made in
State NY to convey land situated in State M, it was held that the
measure of damages for the breach of contract was part of the
obligation of the contract to be determined by the laws of State
NY, not a mere matter of remedy to be controlled by the lexfori
(State M).

Lex Fori
- The law of the country to the tribunal of which appeal is made
- The local territorial law of the country to which a court, wherein
an action is brought , or other legal proceeding is taken, belongs
- The forms of remedies, modes of procedures and execution of
judgements are regulated solely and exclusively by the laws of
the place where the action is instituted
- The lexifori is to decide who are proper parties to a suit
- The lexifori governs as to the nature, extent, and character of the
remedy
- A cause of action arising in one state, under the common law as
here understood, may be enforced in another state where it
would not constitute a cause of action, if the variance in these
laws does not amount to a fundamental difference of policy
- The lexifori decides as to deprivation of remedy in that
jurisdiction
- Where a debt is discharged by the law of the place of payment,
such discharge will amount to a discharge everywhere, unless
such discharge is held by courts of another jurisdiction to
contravene natural justice; it must be a discharge from the debt,

and not an exemption from the effect of particular means of

enforcing the remedy
Statutes of limitation affect the remedy only; and hence, the
lexifori will be the governing law
If a statue in force in the place where the cause of action arose
extinguishes the obligations, and does not merely bar the
remedy, no action can be maintained in another jurisdiction after
it has taken effect
The right of set-off is to be determined by the lexifori. Liens,
implied hypothecations, and priorities of claims, generally are
matters of remedy, but only it would seem where the proper
affected is within the jurisdiction of the courts of the forum
A prescriptive title to personal proper, acquired in a former
domical, will be respected by the lexifori
Questions of admissibility and effect of evidence are to be
determined by the lexifori, also question of costs; exemption laws
are ordinarily governed by the lexifori
The administration of a deceased person is movables is governed
wholly by the law of the country where the administrator acts
and from which he derives his authority to collect them (lexifori);
and without regard to the domicil of the deceased; but the
distribution of the distributable residue is governed by the
lexidomicilii; usually, the distributable residue is remitted to the
administration of the domicil for distribution; but it is in the
discretion of the court of the ancillary administration to distribute
such residue
An action is tort for an act done in a foreign country will not lie in
England unless the act was a tort both in such foreign country and
in England
An action lies in one state on a wrong done in another state,
which is actionable there, although it would not be actionable in
the state where suit is brought unless it be contrary to its own
public policy

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The damages recoverable from an employer for the death of his

employee, caused by the negligence of the former, are
controllable by the law of the place where the contract of the
employment was made and accident occurred, though the death
took place and the action was brought in another state

Lexi Loci
- This may be either lexi locicontractus(the law of the place of
making a contract); lexi loci rei sitae,or lexisitus(the law of the
place where a thing is situated); lex loci actus, or lexactus (the law
of the place where a legal transaction takes place); lex loci
solutionis (the law of the place hwere a contract is performed);
lex loci delicticommissi(the law of the place where a tort is
committed)
- Lex loci contractusis used in a double sense; it is used sometimes
used to denote the law of the place where the contract was
made, and at other times to denote the law by which the contract
is to be governed, which may or may not be the same as that of
the place where it was made
- The validity or invalidity of a contract as affected by the lex loci
may depend upon the capacity of the parties, or the legality of
the act to be done
- The capacity of the parties as affected by questions of minority or
majority, incapacities incident to coverture, guardianship,
emancipation, and other personal qualities or disabilities is, it has
been said to be determined by the law of the place of making the
contract
- The question of disability to make a contract on account of
infancy is to be decided by the lex loci; so, also, as to contracts
made by married women
- Personal disqualification not arising from the law of nature, but
from positive law, and especially such as are penal, are strictly

territorial and are not to be enforced in any country other than

that where there originate
A contract legal by the lex loci will be so everywhere; unless it is
injurious to public rights or morals; or contravenes the policy, or
violates a positive law of the lexfori; the application of the lex loci
is a matter of comity; and that law must, in all cases, yield to the
positive law of the place of seeking the remedy
It is held generally that the claims of citizens are to be preferred
to those of foreigners; assignments, under the insolvency law of a
foreign state, are often held to personal property in the
jurisdiction of the lexfori
Where a voluntary assignment is made, if good where made and
made in conformity with the law where the property is situated,
it is valid in the latter state, ex proprio vigour
In an action in Pennsylvania or a promissory note governed as to
the contract by the law of New Jersey, the question of whether
parole evidence will be admitted to vary the contract must
depend upon the law of New Jersey, and not upon the lexfori; it
was said that the right to introduce proof dehors (means out of;
without; foreign to) the instrument for the purpose of showing
what, in fact, the contract was and is an essential part of the
contract itself, and not a mere incident of remedy
The interpretations of contacts is to be governed by the law of
the country where the contract was made
The lexloci governs as to the formalities and authentication
requisites to the valid execution of contract. But in proving the
existence of, and seeking remedies for, the breach, as well as in
all questions relating to the competency of witnesses, course of
procedure, etc., the lexforimust govern
The lex loci governs as to the obligation and construction of
contracts, unless, from their tenor, it must be presumed that the
presumption arises where the place of performance is different
from the place of making

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It has been held that a lien or privilege affecting personal estate,

created by the lex loci, will generally be enforced wherever the
property may be found; but not necessarily in preference to
claims arising under the lexfori, when the property is within the
jurisdiction of the court of the forum
A transfer of movable made in the place of the owners domicil
and in accordance with its laws will be enforced by the courts of
the place where the movable are situated, although the method
of transfer be different from that prescribed by the latter
country; but not when the statutes of the place where they are
situated or the policy of its laws prescribe a different rule
A discharged from the performance of a contract under the lex
loci is a discharge everywhere
If the contract is to be performed partly in one state and partly in
another, it will be affected by the law of both states
In case of endorsement proper, every endorsement is a new
contract, and the place of each endorsement is in its locus
contractus
A note made in one state and payable in another is not subject to
the usury law of the latter state, if it was valid in that respect in
the state where it was made
The general rule is that defence or discharge, governed by the law
of the place where the contract is made or is to performed, is to
be held of equal validity in every place where the question may
come to be litigated
Damages for the commission of tortious act are to be measured
by the law of the place where the act is done
The validity of a contract cannot be secured by apparently
subjecting it to a law by which it is not properly governed
It is said that the failure to comply with local requirement as to
form, not affecting the obligation of the agreement, will not
invalidate the contract

A contract valid by the laws of the place where made, although

not in writing, will not be enforced in the courts of a country
where the statute of frauds prevails. But where the law of the
forum and that of the place of the execution of the contract
coincide, it will be enforced, although required to be in writing by
the law of the place of performance, because the form of the
contract is regulated by the law of the place of its celebration,
and the evidence of it by that of the forum
The law of all acts relating to the real property is governed by the
lex rei sitae

Lex Rei Sitae

- The law of the country where a this is situated
- It is the universal rule of the common law that any title or interest
in land, or in other real estate, can only be acquired or lost
agreeably to the law of the place where the same is situated; and
the law is the same in this respect in regard to all methods
whatever of transfer, and every restraint upon alienation
- The lex rei sitae governs as to the capacity of the parties to any
alienation, whether testamentary or inter vivos, or to make a
contract with regard to a movable, or to acquire or succeed to a
movable as affected by questions of minority or majority, of
rights arising from the relation of husband and wife; parent and
child; or guardian and ward; and of the rights and powers of
execution and administrators, whether the property be real or
personal; of heirs; and of devisee or devisor
- So as to the forms and solemnities of alienation, and the
restrictions, if any imposed upon such alienation, the lex rei
sitaemust be complied with; so as to the amount of property or
exert of interest which can be acquired, held or transferred, and
the questions of what is real property
- The law of a country where a thing is situated determines
whether the thing itself, or any right, obligation, or document

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connected with the thing is to be considered an immovable.

Generally, the lex rei sitae governs as to the validity of any such
transfer
The validity, construction, and effect of wills of movables depend
upon the lex rei sitae; but the law of the state where the will was
made may be considered by the court of the situs in determining
the meaning of certain words in it
The validity of a charitable devise depends upon the lex rei sitae,
and so does the execution of a proven of appointment of lands
under a will, and the devolution of land, whether in case of
intestacy or under a will
The acquisition of a title to land by the lapse of time (prescription
must be determined by the same law, exept as far as the
limitation to an action to recover land depends on the lexfori

Governmental Interest Analysis

- Normally, even in cases involving foreign elements, the court
should be expected, as a matter of course, to apply the rule of
decision found in the law of the forum
- When it is suggested that the law of a foreign state should furnish
the rule of decision, the court should, first of all, determine the
governmental policy expressed in the law of the forum, It should
then inquire whether the relation of the forum to the case is such
as to provide a legitimate basis for the assertion of an interest in
the application of that policy
- If necessary, the court should similarly determine the policy
expressed by the foreign law, and whether the state has an
interest in the application of its policy
- If necessary, the court should similarly determine the policy
expressed by the foreign law, and whether the state has an
interest in the application of its policy

If the court finds that the forum state has no interest in the
application of its policy, but that the foreign state has, it should
apply the foreign law
If the court finds that the forum state has an interest in the
application of its policy, it should apply the law of the forum,
even though the foreign state also has an interest in the
application of its contrary policy, and, a fortiori, it should apply
the law of the forum if the foreign state has no such interest

Public Policy, Public Law Claims

- Every legal system reserves an ultimate discretion to exclude the
application of the foreign lexcausae normally applicable under
the choice-of-law principles if the result is offensive to forum
public policy. The operation of this exception is not restricted to
the choice-of-law level; public policy also provides a defence to
the enforcement of foreign decisions and judgements that would
otherwise be entitled to recognition
- Claims and judgements based on foreign sovereign or public
rights are also vulnerable to exclusion. This is well established in
the case of foreign exclusion. This is well established in the case
of foreign ta and penal laws. Apart from these two classic
examples, the jurisprudential terrain is still largely unexplored
- The penal, revenue, public law, and public policy defences to the
recognition of a foreign judgement are distinct from the natural
justice defence. The natural justice defence is concerned with the
fairness of procedure by which the foreign judgement was
obtained whereas the other defences rest on the substantive
character of the foreign laws on which that judgement was based
Principle of Territoriality
- Every nation possesses an exclusive sovereignty and jurisdiction
within its own territory. The direct consequence of this rule is
that the laws of every State affect, and bind directly, all property

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whether real or personal, within its territory and all persons who
are resident within it, whether natural born subjects or aliens,
and also all contracts made and acts done within it. A State may,
therefore, regulate the manner and circumstances under which
property, whether real or personal or in action, within it shall be
held, transmitted bequeathed, or transferred or enforced; the
condition, capacity, and state of all persons within it; the validity
of contracts, and other acts done within; the resulting rights and
duties growing out of these contracts and acts,; and the remedies
and modes of administering justice, in all cases calling for the
interposition of its tribunals to protect, validate, and secure the
wholesome agency of its own laws within its own domain
No State or nation can, by its laws, directly affect or bind property
out of its own territory, or persons not resident therein, whether
they are natural born subjects or others. It would be wholly
incompatibly with the equality and exclusiveness of the
sovereignty of any nation that other nations should be at liberty
to regulate either persons or things within its territories
Whatever force and obligation the laws of one country have in
another depends solely upon the law and municipal regulations
of the latter; that is to say, upon its own proper jurisprudence
and policy, and upon its own express or tacit consent

Comity
- The assertion that the recognition or enforcement of foreign law
depends upon comity means only that the law of no country can
have effect as law beyond the territory of the sovereign by whom
it was imposed, unless by permission of the state where it is
allowed to operate. The application of foreign law is not a matter
of caprice or option, it does not arise from the desire of a
sovereign to show courtesy to other states. It flows from the
impossibility of otherwise determining whole classes of cases

without gross inconvenience and injustice to litigate, whether

natives or foreigners
Vested Rights
- A night having been created by the appropriate law, the
recognition of its existence should follow everywhere. Thus an act
valid where done cannot be called in question anywhere
- When a right has been created by law, this right itself becomes a
fact, and its existence may be a factor in an event which the same
or some other law makes the condition of a new right
- If no law having power to do so has changed a right, the existing
right should everywhere be recognized; since to do so is merely
to recognize the existence of a fact
Local Law Theory
- The forum, when confronted by a case involving foreign
elements, always applies its own law to be the case, but in doing
so adopts and enforces as its own law a rule of decision identical
in scope with a rule of decision found in the system of law in
force in another state or country with which some or all of the
foreign elements are connected, the rule so solicited being in
many groups of cases. The rule of decision which the given
foreign state or country would apply, not to this very group of
facts now before the court of the forum, but to a similar but
purely domestic group of facts involving for the foreign court no
foreign element. The rule thus incorporated into the law of the
forum may be for convenience be called the domestic rule of
the foreign state, as distinguished from its rule applicable to cases
involving foreign elements. The forum thus enforces not a foreign
right but a right created by its own law
Discretion to Decline Jurisdiction and Restraint of Foreign Proceedings
- Stay (or dismissal) of proceedings

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Anti-suit injunction
In cases where jurisdiction has been founded as of right, i.e.
where in this country the defendant has been served with
proceedings within the jurisdiction, the defendant may now apply
to the court to exercise its discretion to stay the proceedings on
the ground which is usually called forum non conveniens
o The plea can now be sustained unless the Court is
satisfied that there is some other tribunal, having
competent jurisdiction, in which the case may be tried
more suitably for the interests of all the parties for the
ends of justice
o The question is not one of convenience done, but of the
suitability of appropriateness of the relevant jurisdiction
o In order to justify a stay, two conditions must be satisfied,
one positive and the other negative: (a) the defendant
must satisfy the court that there is another forum to
whose jurisdiction he is amendable in which justice can
be done between the parties at substantially less
inconvenience or expense, and (b) the stay must not
deprive the plaintiff of a legitimate personal or juridical
advantage which would be available to him if he invoked
the jurisdiction of the first court
The law relating to injunctions restraining a party from
commencing or pursuing legal proceedings in a foreign
jurisdiction has a long history. Certain basic principles are now
beyond dispute.
o The jurisdiction is to be exercised when the ends of
justice require it
o Where the court decides to grant an injunction
restraining proceedings in a foreign court, its order is
directed not against the foreign court but against the
parties so proceedings or threatening to proceed

It follows that an injunction will only be issued restraining

a party who is amendable to the jurisdiction of the court
against whom an injunction will be an effective remedy
o Since such an order directly affects to foreign court, the
jurisdiction is one which must be exercised with caution
The court have developed two forms of remedy to control the
choice of forum by the parties. The first and more conventional
devise is a stay of proceedings. This enables the court of the
forum selected by the plaintiff (the domestic forum) to stay the
action at the request of the defendant if persuaded that the case
should be tried elsewhere. The second is the anti-suit
injunction, a more aggressive remedy, which may be granted by
the domestic court at the request of a defendant or defendants,
actual or potential in a foreign suit. In the usual situation, the
plaintiff in the domestic court moves to restrain the defendant or
defendants from launching or continuing a proceeding in the
courts of another jurisdiction. Occasionally, the defendants in a
foreign jurisdiction who allege that the plaintiff in that jurisdiction
has selected an inappropriate form seek an injunction from the
courts of the alleged appropriate forum, in which no proceeding
is pending, to restrain continuation of the foreign proceedings.
Which the restraining order operates in personamon the plaintiff
in the foreign suit, and not on the foreign court itself. It has the
latter effect and therefore raises serious issues of comity.
Although both the remedy of a stay and an injunction have as
their main objectives the selection of an appropriate forum for
the trial of the action, there is a fundamental difference between
them. In the case of the stay the domestic court determines for
itself whether in the circumstances it should take jurisdiction
whereas, in the case of the injunction, it in effect determines the
matter for the foreign court.
Another distinction between domestic and foreign judgements is
that the doctrine of res judicata does not apply to foreign

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judgements. The cause of action is not considered to have

merged in the foreign judgement. It may be possible, therefore,
for a plaintiff to sue again on the original cause of action, should
the foreign judgement be one not recognizable by the forum
A foreign court will be held to have had jurisdiction in the
international sense for purposes of recognition and enforcement
of a particular judgement if:
o The defendant was present in the jurisdiction at the time
the action was commenced;
o The defendant voluntarily submitted to the jurisdiction of
the foreign court;
o There was a real and substantial connection between the
actions and the jurisdiction
English courts will not enforce the judgment of a foreign court
against a defendant who does not reside within the jurisdiction of
that court, has no assets within that jurisdiction and does not
appear before that court, even though that court by its own local
law has jurisdiction over him; English courts will not enforce the
judgement of a foreign court against a defendant who, although
he does not reside within the jurisdiction of that court, has assets
within that jurisdiction and appears before that court solely to
preserve those assets which have been seized by that court.
English courts will enforce the judgement of a foreign court
against a defendant.

Jurisdiction in Personam
- The status of an individual is occasionally relevant to questions of
jurisdiction. There are some persons whose status prohibits them
from bringing an action, and there are some whose status confers
immunity from action.
- The standing of an unorganized entity is not regulated by statute,
and so must be resolved by the application of basic conflicts
principles

The question whether a foreign can be a party to proceedings in

the English courts is one to be determined by English law (as the
lexifori). In the case of an individual, no difficulty usually arises.
And the same can be said of foreign legal persons which would be
recognized as such by English law. The novel question be
recognized as a legal person by English law can sue in English
courts.
Theories of territorial sovereignty give to the sovereign the right
to control any person physically present in the territory. The
corollary is an absence of power to regulate persons in other
jurisdictions because that would constitute an interference with
the sovereign of that jurisdiction
Traditionally, the presence of the defendant within the territorial
limits of the court or his voluntary submission to the authority of
the court has founded jurisdiction in a personal action in that
court
Traditionally, the view has been held that jurisdiction in a
personal action rests upon physical power and the ability of the
court to enforce any judgment it may render. Jurisdiction,
therefore, normally depends upon the presence of the defendant
within the territorial limits of the court or upon the voluntary
submission of the defendant to the authority of the court
There are 3 ways in which jurisdiction may be asserted against an
out-of-state defendant: (1) presence-based jurisdiction, (2)
consent-based jurisdiction, and (3) assumed jurisdiction.
Presence-based jurisdiction permits jurisdiction over an extrastate defendant who is physically present within the territory of
the court. Consent-based jurisdiction permits jurisdiction over an
extra-state defendant who consents, whether by voluntary
submission, attornment (means to recognize or bring about a
transfer, especially of property) by appearance and defence, or
prior agreement to submit disputes to the jurisdiction of the
domestic court. Both bases of jurisdiction also provides bases for

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the recognition and enforcement of extra-state judgements.

Assumed jurisdiction is initiated by service of the courts process
out of the jurisdiction. Unlike presumed-based jurisdiction and
consent-based jurisdiction, assumed jurisdiction does not
normally provide a basis for recognition and enforcement.
Very often there is more than one forum capable of assuming
jurisdiction and it is necessary to determine where the action
should be litigated, Where more than one forum is capable of
assuming jurisdiction, the most appropriate forum is determined
through the forum non conveniens doctrine, which allows a
court to decline to exercise its jurisdiction on the ground that
there is another forum more appropriate to entertain the action.
The forum has an interest in protecting the legal rights of its
residents and affording injured plaintiffs generous access for
litigating claims against tortfeasors
On the other hand, if the plaintiff lacks a significant connection
with the forum, the case for assuming jurisdiction on the basis of
damage sustained within the jurisdiction is weaker. If the
connection is tenuous, courts should be wary of assuming
jurisdiction. Mere residence in the jurisdiction does not constitute
a sufficient basis for assuming jurisdiction.
If the defendant has done anything within the jurisdiction that
bears upon the claim advanced by the plaintiff, the case for
assuming jurisdiction is strengthened
In considering whether to assume jurisdiction against an extrastate defendant, the court must consider whether it would
recognize and enforce and extra-state judgement against a
domestic defendant rendered on the same jurisdictional basis,
whether pursuant to common law principles or any applicable
legislation. Every time a court assumes jurisdiction in favour of a
domestic plaintiff, the court establishes a standard that will be
used to force domestic defendants who are sued elsewhere to
attorn to the jurisdiction of the foreign court or face enforcement

of a default judgement against them. It follows that where a court

would not be willing to recognize and enforce an extra-state
judgement rendered on the same jurisdictional basis, the court
cannot assume jurisdiction.
Recognition and Enforcement of Foreign Judgements and Arbitral Awards
- It is a fundamental tenet of territorial sovereignty that the laws
and orders of one sovereign cannot be directly enforced in the
territory of another. The corollary is that all jurisdiction have rules
that provide for conversion of foreign orders to local orders,
enforceable by local processes. Nothing prevents a sovereign
from waiving the right to require conversion. Similarly, nothing
prevents one state denying recognition to judgements and orders
of all other states but such a degree of non-cooperation is not
considered to be in the self-interest of the state.
- The traditional common law rules require the foreign judgement
creditor to persuade the forum that:
o The foreign judgement is final and conclusive, and
o The foreign court had jurisdiction in the international
sense.
- An action on a foreign judgement at common law at common law
has traditionally been viewed as an action in debt, the debt
having been created by the foreign judgement. For limitations
period purposes, an action on a foreign judgement is, therefore,
subject to the same limitations period as a domestic action in
debt, regardless of the limitation period attached to the
enforcement of the judgement in the originating jurisdiction over
whom that court has jurisdiction by its own local law (even
though it does not possess such jurisdiction according to the
English rule of the conflict of law) if that defendant voluntarily
appears before that foreign court to invite that court in its
discretion not to exercise the jurisdiction which it has under its
own local law.

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The merits of a foreign judgement, in rem or in personam, are not

examinable at all whether the judgement is relied upon by the
plaintiff as a cause of action or pleaded by the defendant as a bar
to an action or pleaded by the defendant as a bar to an action
instituted against him. The rule that the courts will not permit a
re-trial of the issues which have already been decided by the
foreign court is now well-settled.
A valid foreign judgement creates a new right in the judgement
plaintiff and imposes a new duty on the judgement defendant,
these rights being independent of and distinct from the cause of
action alleged in the suit wherein the judgement was rendered. A
suit on this judgement being one on a new right, it is immaterial
whether or not a valid cause of action existed prior to the
judgement.
If a judgement is pronounced by a foreign court over persons
within its jurisdiction and in a matter with which it is competent
to deal, English courts never investigate the propriety of the
proceedings in the foreign court, unless they offend against
English views of substantial justice. Where no substantial justice,
according to English nations, is offended, all that English courts
look to is the finality of the judgement and the jurisdiction of the
court, in this sense and to this extentnamely, its competence to
entertain the sort of case which it did deal with, and its
competence to require the defendant to appear before it; if the
court had jurisdiction in the sense and to this extent, English
courts never inquire whether the jurisdiction has been properly
or improperly exercised, provided always that no substantial
injusticeaccording to English nationshas been committed.
There is no doubt that English courts will not enforce the
decisions of foreign courts which have no jurisdiction in the sense
above-explainedi.e., over the subject-matter or over the
persons brought before them. But the jurisdiction which alone is
important in these matters is the competence of the court in an

international sensei.e., its territorial competence over the

subject-matter and over the defendant. Its competence or
jurisdiction in any other sense is not regarded as material by the
English courts.
A judgement of a foreign court having jurisdiction over the parties
and subject-matteri.e., having jurisdiction to summon the
defendants before it and to decide such matters as it has
decidedcannot be impeached in England on its merits.
The common law provides a defendant in an action for
recognition and enforcement of a foreign judgement with a
member of possible defences. Judgements based on foreign
penal or revenue laws are not enforceable and neither are those
based on laws that are contrary to the public policy of the forum.
Additional defences are that the foreign judgement was obtained
by fraud or in breach of natural justice. It is not a defence,
however that the foreign court erred in law, even if the error in
law was one concerning the law of the recognizing court. The
court being asked to recognize a foreign judgement is not sitting
as an appellate court.
The correctness in fact or in law of a foreign judgement is
irrelevant in an action to enforce that judgement in Ontario. This
so regardless of whether the foreign judgement followed a trial of
the merits or a [defa]. As the correctness of the decision of the
foreign court is irrelevant, it follows that the merits of the claim
or the merits of defences to the claim are equally irrelevant,
Fraud (as a defence to an action to enforce foreign judgements)
to be relied on must be something collateral or extraneous, and
not merely the fraud which is imputed from alleged false
statements made at the trial, which were met by counterstatements by the other side, and the whole subjudicated upon
by the Court and so passes on into the limbo of estoppel by the
judgement. This estoppel cannot be disturbed except upon the
allegation and proof of new and material facts, or newly

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Karla Alexis Afable

discovered and material facts which were not before the former
court and from which are to be deduced the new proposition that
the former judgement was obtained by fraud. The burden of that
issue is upon the defendant, and until he at least gives prima
evidence in support of it, the estoppel stands. [New facts refers
to facts which have come into existence after the foreign
judgement was obtained. Newly discovered facts refers to facts
which existed at the time the foreign judgement was obtained
but were not known to the defendant.]
Canadian courts will not recognize or enforce a foreign law or
judgement or a right, power, capacity, status, or disability created
by a foreign law that is contrary to the forums stringent public
policy, essential public or moral interest or conception of
essential justice and morality. Public policy serves a corrective
junction. Its use is defense
o If a foreign law is to be refused, any effect on public
policy grounds, it must violate some fundamental
principle of injustice, some prevalent conception of good
morals, or some deep-rooted tradition of the forum

Choice-of-Law Methodology
- Choice-of-law principles have traditionally been expressed in
rules that say that a particular type of legal issue is to be
determined according to the internal law of a country with which
the case has a deprived connection. (By natural law means that
the law that applies to a case arising entirely within that country.)
This may be called the classic form of choice-of-law rule because
it has been the basis of both civil and common law systems of
choice of law for the law 150 years. Some examples:
o Formal validity of marriage is governed by the law of the
country in which the marriage is celebrated

Capacity to enter into a marriage is governed by the law

of the country in which the party is said to be incapable is
domiciled
o Liability in tort is governed by the law of the country in
which the tort was committed
o A testamentary disposition is essentially valid if it
complies with the law of the country in which the
testator was domiciled when he died
o Matters of judicial procedures are governed by the law of
the forum (the country in which the court hearing the
case is sitting)
Each choice-of-law rule identifies a category of legal issuefor
example, formal validity of a marriage or liability in tortand says
that on issue of falling under that category must be decided
according to the law of a country designated by means of a
connecting factor---place of celebration of the marriage,
domicile, place of commission of the tort, or place in which the
case is being heard. The designated legal system may be that of
another stat, a foreign nation, a subdivision of a foreign nation, or
the forum itself.
It is important to realize that, as a particular matter, a choice-oflaw rule only comes into play if a party to the legal dispute (1)
pleads that an issue should be decided by a law other than that of
the forum, and (2) proves as a fact, that the outcome of the issue
is different under the foreign law that it is under the law of the
forum (lexfori). If none of the parties to a dispute raises the
question of choice of law, the court must simply decide the issue
according to the rules of its own legal system. The same applies,
even if a party does rely on a foreign legal rule, if that party fails
to satisfy the court as to what the relevant foreign rule is or how
it applies to the facts. Again, the court must apply its own law.
Without doubt, most potential choice-of-law issues are never
raised, either because the foreign law would just lead to the same

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Karla Alexis Afable

result as the lexfori, or because it is not worth anybodys while to

marshal the evidence to prove the foreign legal rule.
Any party who relies on a foreign legal rule must justify its
application by invoking a choice-of-law rule. Different legal
systems use different approaches to choice of law. For instance,
common law jurisdictions traditionally decides issues relating to
personal status [marriage, legitimacy, etc.] by applying the
persons domicile [which means permanent residence]. Civil law
jurisdiction traditionally apply the law of the country of which the
person is a citizen, which may be a completely different country.
So, it is quite possible for a choice-of-law question to be decided
according to one countrys law if the issue arises in the court of a
common law jurisdiction and by another countrys law if it arises
in the court of a civil jurisdiction. There is no such thing as an
internationally accepted system of choice-of-law. So the choiceof-law rule invoked by a party must be drawn from a specified
jurisdiction.
That jurisdiction is, and must be, the forum itself. Choice of law
rules, whether judge-made or statutory are, in positivist terms,
commands to the court by the law-making authorities of the
courts own country. The law says to the judge: Here is the basis
on which you must decide whether to apply a rule of our own
internal law or a rule of foreign law to decide on a particular
persons legal rights. You are not free to apply or not to apply the
rules of foreign law as the spirit moves you. You can only apply
rules of foreign law if the choice-of-law rule says that you can.
To resolve choice-of-law problems, the following method is
proposed:
o Normally, even in cases involving foreign elements, the
court should be expected, as a matter of course, to apply
the rule of decision found in the law of the forum;
o When it is suggested that the law of the foreign state
should furnish the rule of decision, the court should, first

of all, determined the governmental policy expressed in

the law of the forum. It should then inquire whether the
relation of the forum to the case is such as to provide a
legitimate basis for the assertion of an interest in the
application of that policy. This process is essentially the
familiar one of construction or interpretation. Just as we
determine the by that process how a statute applies in
time and how it applies to marginal domestic situations,
so we may determine how it should be applied to cases
involving foreign elements in order to effectuate the
legislative purpose.
If necessary, the court should similarly determine the
policy expressed by the foreign law and whether the
foreign state has an interest in the application of its
policy.
If the court finds that the forum state has no interest in
the application of its policy but that the foreign state has,
it should apply the foreign law.
If the court finds that the forum state has an interest in
the application of its policy, it should apply the law of the
forum, even though the foreign state also has an interest
in the application of its contrary policy and, a fortiori, it
should apply the law of the forum if the foreign state has
no such interest.

Invoking and Determining Foreign Law

- Under the long-established common law view, foreign law is not
engaged simply because the choice-of-law rules of the lexfori
support its application. Instead, foreign law is conceived as a
question of fact. As such, its applicability must be pleaded
expressly and its content and effect then proved according to the
ordinary rules of evidence by expert testimony.

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-

The common law conception of foreign law as fact is by no means

universal. Most legal systems in continental Europe and Latin
America treat foreign law as law with the result that it must be
applied ex officio by the court whether or not invoked by the
parties. Although the parties can be enjoined to assist in
ascertaining the foreign law, the court has the final word.
English laws treatment of foreign law is straightforward. As
traditionally conceived, its approach may be expressed in four
principles. The first form which the others follow is that foreign
laws are facts, not laws. As such, they are beyond the scope of
individual notice, being unknown and unknowable to the judge.
Secondly, being facts, foreign laws must be formally proved,
generally by expert evidence for a judge us unaware of their
content. Thirdly, being facts, foreign laws are subject to such
principles of pleading as govern other facts. This means that one
who relies upon foreign law must expressly plead it, but, equally,
one who does not so rely need not do so. Fourthly, if foreign law
is not pleaded, or is pleaded but not adequately moved, a court
will apply English law instead, for knowing only English law, it
presumes foreign law to be the same.
As with any other question of fact, the burden of pleading a
proving foreign law lies on the party who wishes to base his or
her claim or defence on it. However, neither party is under an
obligation to invoke or prove foreign law. The law of the forum
applies by default no matter how patent the foreign element in
this case may be.
The unqualified application of forum law to a case with foreign
factual elements can be impracticable or even impossible in cases
where the relevant local law is drafted in terms that are clearly
meant to apply only to domestic condition or institutions. In that
event, a more selective application of the lexfori will be made.
It is well-known that in countries governed by English Law, a court
is not entitled to inquire prorpiomotu as to the content of the

foreign law on the basis of which an action brought before it

should be disposed of. The court will not in principle take judicial
notice of foreign law; it will not even consider foreign law as an
ordinary fact (which it is not, in any event) about which it may
inquire the parties to adduce satisfactory evidence. If the parties,
willfully or inadvertently, fail to bring expert evidence of the
foreign law, the court will act as if the foreign law is the same as
its own law, it will apply the lexfori. This rule is peculiar to English
law. It is contrary to that followed in other countries such as
France, where the judge is not only entitled to take judicial notice
of the foreign law, but is even required to do so in view of the
public order character of the rules of conflicts of laws.
The burden of proving foreign law lies on the party who bases his
claim or defense on it if that party adduces no evidence, or
insufficient evidence of the foreign law, the court applies English
law. This principle is sometimes expressed in the form that
foreign law is presumed to be the same as English law until the
contrary is proved. But this words of expression has given rise to
uneasiness in certain cases. This in one case, the court refused to
apply presumption of similarity where the foreign law was not
based on the common law, and 8n others it has been doubted
whether the court was entitled to presume that the foreign law
was the same as the statute of the forum. In view of these
difficulties, it is better to abandon the terminology of
presumption and simply to say that where foreign law is not
proved, the court applies English law.
The lexifori also applies by default in cases where the foreign law
is pleaded but insufficiently proved. Jurisdictions that accept the
foreign law as law doctrine generally also apply the lexfori in
cases where the foreign law is impossible to ascertain as a
practical matter.
As common law, foreign law must be proved as a matter of fact
by the evidence of persons who are experts in that law. In the

Conflicts of Law
Karla Alexis Afable
absence of agreement or statutory authority, it is insufficient to
simply place the text of the relevant foreign statute, judicial
decision, or other authority before the court. Written sources and
references are normally admissible only when introduced in
support of evidence of expert witnesses in which event the
passages and references cited by them will be treated as part of
their testimony.
The two classes of expert witnesses: first those who have
practiced or applied the relevant foreign law as lawyers or judges;
and second, law teachers and others whose office or position
require them to have a working knowledge of the relevant
foreign law.
In certain circumstances, the courts will not apply foreign law
even if they are applicable and properly proven; such is the case
when the foreign law is penal in naturea determination made
by the lexfori. Also, courts will neither directly nor indirectly
enforce the revenue laws of another country. A foreign law may
further fail to apply where it is fundamentally offensive to the
public policy of the forum.
Foreign law need not be proved formally if the parties can agree
on its legal effect. Typically, this will be done by an agreed
statement of facts submitted prior to trial but the foreign law can
be admitted, like any other question of fact, at any point in the
proceedings.

Law of Procedure
- It is generally recognized that the law of the forum governs
procedure. The rule is grounded in the pragmatic demands of
administrative convenience, indeed administrative necessity. To
require those involved in the administration if justice to know and
apply a foreign procedural law would result in unacceptable delay
and expense.

The fact that the forum controls its own procedure is approached
traditionally as raising an issue of characterization- which
elements of the lexfori are procedural so as to command
application and which are substantive so as to be excluded;
conversely, which elements of the foreign lexcausae are
substantive so as to command application and which are
procedural so as to be excluded.
There seems to be general agreement that the following issue are
the province of the lexfori: the appropriate court for bringing an
action, the form of the originating process and other pleadings
and the manner and mode of their service; the mode of conduct
of a proceeding generally, including the availability of preliminary
and interlocutory motions and applications; and the availability
and mode of appeal.
The procedural rules of the lexfori may not necessarily be the
same for domestic and private international law cases. The rules
governing service of process are an example. In the absence of a
positive rule to the contrary, service of process on a person
outside the forum does not have to be effected in the manner
required by the law of the place where the service is made.
In some jurisdictions, the rules may authorize service to be
effected either in the manner provided for service within the
jurisdiction or in the manner provided by the law of the place
where the service is made so long as the latter can seasonably be
expected to give actual notice.
One of the eternal truths of every system of private international
law is that a distinction must be made between substance and
procedure, between right and remedy. The substantive rights of
the parties to an action may be governed by a foreign law, but all
matters appertaining to procedure are governed exclusively by
the law of the forum.

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Questions of what heads of what kinds of damages are allowable

have been held to be substantive; but the questions of
quantification of damages have been held to to be procedural.
In approaching a characterization exercise, a distinction is often
drawn between the mode of proving a relevant fact (procedural)
and the questions of what facts must be proved and their effect
once proved (substantive.)
The weight of current and academic authorities supports the
proposition that the quantification or assessment of damages is a
matter of procedural law to be decided in accordance with the
law of the forum. Thus, even id lex loci delicti applied to the
substantive law on the kinds of damage, the quantification would
nonetheless be determined according to the law of the forum
because quantification of damages is a procedural matter.
Since the award of costs is typically a discretionary judicial tool
used to control the litigation process as opposed to forming part
of the [lis] between the parties, issues relating to costs are
classified as procedural.
There is little doubt that the extent to which a plaintiffs right of
recovery is reduced by the plaintiffs own negligence is a matter
of substantive law and so governed by the law that governs the
defendants liability, presumably the lex loci delicti. So, if
contributory negligence is a complete bar by the lex loci delicti,
the plaintiffs cause of action will be defeated.
There seems little doubt that the vicarious liability rules are to be
characterized as substantive, not procedural.
Canadian courts will not recognize or enforce a foreign law or
judgment or a right, power, capacity, status or disability created
by a foreign law that is contrary to the forums stringent public
policy, essential public or moral interest or conception of
essential justice and morality. Public policy serves a corrective
function. Its use is defensive

If foreign law is to be refused any effect on public policy

grounds, it must violate some fundamental principle of
justice, some prevalent conception of good morals, or
some deep-rooted tradition of the forum;