Private international law, or conflict of laws, comprise of provisions of national law regarding contracts and lawsuits involving foreign laws or jurisdictions. It is mainly concerned with determining whether the proposed forum is appropriate for dealing with the dispute, and with determining which jurisdiction's domestic law applies to the dispute.
The two names are generally interchangeable, though neither is wholly accurate or properly descriptive. The name conflict of laws is somewhat misleading, since the object of this branch of law is to eliminate any conflict between competing systems of law rather than provoke such a conflict.
In inter-state situations (such as in the United States) "conflict of laws" is almost invariably used as each state jurisdiction is considered a separate state and calling it "international" law would be confusing.
Choice of law rules
Courts faced with a choice of law issue generally have two choices:
- 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 or deals with real property; or
- the law of the site of the transaction, or occurrence that gave rise to the litigation (lex loci)-- this is usually the controlling law selected when the matter is substantive.
Many contracts include a choice of law clause that determines what law should apply and even a clause which determines the venue of any such dispute. When the court must consider the foreign law it must be proved by foreign law experts and cannot merely be pleaded as the court has no expertise in the laws of foreign countries or how they might be applied in a foreign court. Such foreign law is technically considered to be evidence, rather than law, for the purposes of the determination of venue.
The Hague Conference on Private International Law is a treaty organization that oversees conventions implementing many of these principles. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues.
Last updated: 05-07-2005 06:40:11
Last updated: 05-13-2005 07:56:04