Conflict of Laws: main peculiarities and modern problems

Angelina V. Shepeleva, School of Governance and Politics, MGIMO University

Abstract

The article touches upon the issues of conflict of laws in the context of resolution of problems arising out of diversity of courts and legal systems. The author starts by telling that conflict of laws pertains to relations across different legal jurisdiction and describing the collision problem at large. Much attention is paid to the problems of private international law as related to legal collisions. The author draws attention to such problems as “hidden conflicts”, reference and qualification issues. The author comes to the conclusion that there are certain means by which such collisions can be eliminated.

Key words: conflict of laws, choice of law, collision, renvoi, hidden conflicts, conflict of qualification

Main body

Modern law is not only changing, but it is becoming more extensive, covering a previously unknown relationships. The essence of the conflict of laws issue is the law of which state is to regulate the legal relationship with foreign element: the law of the forum or the law of the state which the foreign element belongs to.

Conflict of laws is a subset of private international law that formed its original component. The main goal of private international law is resolving collisions between two legal orders, so the main part of the rules of private international law consists of the so-called conflict rules which show the law of which state is to be applied to this legal relationship. Despite the wide application of such concepts as "conflict of laws", "the application of foreign law", "choice of law", they are inaccurate to a certain extent. The collision problem is expressed in the necessity of the choice between not only separate rules, but between legal frameworks (Zvekov, 2000). The conflicts rule refers to a foreign legal system as a whole. For example, one family bought a car in North Carolina and decided to go to Montana. During their trip on the territory of Kansas they got into a car accident where all the family died except the baby. Guardian of the child claimed a file on a Michigan’s automaker company. The plaintiff believed to apply the law of Montana which provided more strict liability to the automaker, while the defendant insisted on the application the Kansas law - the place of the injury. The court found that the Kansas law aimed at regulating trade in the state, but in this case the vehicle was not purchased in this state. The court did not apply the law of North Carolina too since this state has a reference to the law of Kansas. Michigan had not interest in applying its law to the dispute. Finally, the court turned to the law of the state of domicile of the victims - the law of Montana establishing strict liability of the manufacturer and maximizing consumer protection, which is domiciled in this state.

The problem of conflict of laws arises due to the fact that legal frameworks unequally solve the same questions of the international civil turnover. No matter how significant the achievements in the unification of law are, a unique and compulsory for all states system of conflict rules has not been created. There still remain significant differences in governing private law relations. But the idea of creating collision rules common to most legal systems is positive. The problem is where to find such generalized concepts. Moreover, who should produce comparative analysis of the law of different countries and to set common legal concepts? Nowadays the court is only to decide conflict-of-laws question and determine the applicable law.

One of the most difficult problems of private international law is the problem of “hidden conflicts”. The differences in the collision regulations give rise to a double discrepancy, i.e. conflict conflicts. The most important is that such collisions lead to the clash of conflict of laws principles. They appear when the same concept is applied to completely different in essence phenomena.

Hidden conflicts are at the basis of the theory of renvoi (from the French - “send back”). The Doctrine of Renvoi is a legal doctrine which applies when a court is faced with a conflict of law and must consider the law of another state, referred to as private international law rules. This can apply when considering foreign issues arising in succession planning and in administering estates. The “Doctrine of Renvoi” is the process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of law that arises. The idea behind the doctrine is that it prevents forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with. The system of Renvoi attempts to achieve that end[1].

There are essentially three approaches to renvoi. There are some countries that accept single, double and no renvoi. Countries such as Spain, Italy, and Luxembourg operate a “Single Renvoi” system. This system refers to another jurisdiction’s choice of law rules. Where the matter arises in a jurisdiction such as Spain, Italy or Luxembourg (A), those jurisdictions will consider whether their own domestic law is the applicable law or if the applicable law is that of another jurisdiction (B). Where B’s rules might return the issue to A, (the original forum court), the court will accept the first remission and apply its own domestic laws.

For example, when a testator, who was a French national, was habitually resident in England but domiciled in Spain, dies leaving moveable property in Spain, the court may need to consider which legislative forum will apply to deal with the property under succession laws. In this case, Spain being the law of the forum, i.e. where the property is situate, applies the law of the deceased’s nationality, namely France and applies French law. French law observes the law of the deceased’s habitual residence which is England. England however examines the domicile of the deceased, which is Spain[2].

As two transfers took place, (from Spain to France and from France to England), Spain, operating the Single Renvoi system, will not accept it back. Accordingly, the Spanish court being the law of the forum, will apply the law where it was last left in the chain of referral i.e. with the law of England and Wales.

Unlike Spain, some countries such as England and France currently accept renvoi twice. However in this system there can never be more than two remissions. Countries such as Denmark, Greece and the US do not accept renvoi.

The problem of reference took off significantly in 1878 in the case of Forgo, the illegitimate son of a Bavarian citizen. He was brought to France from the age of 5 years, and lived most of his life in France, without ever acquiring an official domicile, because he never met the French law conditions. Therefore, according to the French law, he remained a Bavarian citizen legally residing in Bavaria. After his death he left the inheritance to the French Bank. However, his blood relatives in the lateral line who lived in Bavaria claimed for his inheritance. So Forgo has not acquired a domicile in France and by the time of his death was regarded as a person retaining the domicile of origin. According to the French law, the movable succession was under the national law of the deceased (in the Bavarian national law), that stated the inheritance on maternal lineage for the collateral relatives. However, the French courts had established that the Bavarian conflicting norm regarding the movable succession sent back to the French law, because, according to the Bavarian conflicting norm, the movable succession is subject to the law of the deceased’s real domicile. Consequently, the Bavarian conflicting norm does not accept the sending but sends back to the French law system. Accepting the renvoi, the French court applied the French succession lay, according to which maternal side relatives were not allowed to inherit. Thereby, Forgo’s succession became vacant and the movable property located on French territory became part of the French State.

There is a theory of "conflict of qualification" in private international law. Qualification of collision rules issue is that the same conflicts rule with the same legal concepts are often understood and applied in different countries in different ways. I can give an example of the qualification of the concepts associated with the law of the place of tort (civil offence). A locomotive which was going through the territory of Kansas set fire on a house of the plaintiff’s farm which was located on the territory of anther state  - Oklahoma. French doctrine would declare the place of the tort as Kansas, while the German court would decide that the tort was committed in both states and that the plaintiff may refer to either of the two legal systems (Wolf, 1950).

Apart from that, the conflict of laws has some other problems which are closely related to the conflict of qualification: the problems of definition, interpretation and application of legal norms. Once a court accepts jurisdiction, it must determine what rules to apply to a given issue, how to do it and in which way. Foreign law must be interpreted and applied as it was interpreted and applied in its native state by native judge. It is unclear how a court of one state, knowing and applying ex-officio its national law, is able to interpret and apply a foreign law as it is applied there. Legal concepts can be unknown to local law (for example, the concept of "widow's share" in the Russian law) or otherwise known as the terminology and notation with different content.

What is more, there are different ways to define concepts that make up the binding rule. So, for instance, there are differences in the definition of the place of the contract’s conclusion (place of receipt of acceptance by the offeror or the place of dispatch of the acceptance), the place of injury (place of Commission of a malicious act or the place of the harmful consequences). In such cases the difference in the content of the relevant concepts can lead to completely different results in the determination of the applicable law.

To sum up, today’s conflict of laws is a fast - growing industry. It is obvious that conflict is easier to prevent than to eliminate. To my mind it is necessary to strengthen the interaction of science and law-making process, to develop appropriate methodology for modern realities. Optimization of the legislation will facilitate a new approach to the participation of scientists in conducting various types of examinations of draft laws. For example, Russian scientist E. V. Kabatova considers the establishment of new goals of conflict of laws, which are seen as not just finding the applicable law, but finding such a solution to a particular legal relationship or a dispute (Kabatova, 2000), which would take into account the result of applying substantive rules in order to achieve the most fair and optimal outcome of a specific case (Semisirsova, 2007). The creation of uniform substantive rules governing trade, production, scientific-technical, transport and other ties between organizations of different countries, is caused not only by the need to eliminate differences in domestic law of states, but by the fact that domestic law is often "unfit" to regulating these relations.

References

1. Kabatova E (2000). Modern problems of conflict of laws // State and law. №8
2. Semisirsova K. (2007) Conflict of laws prospects in private international law in XXI century // Actual problems of Russian law. №1 (In Russ.)
3. Wolf. (1950) M. Private International Law. Great Britain. OXFORD AT THE CLARENDO PRESS. 1950. 688 p.
4. Zvekov V. (2000) Private International Law. Moscow : NORMA Publ. 686 p. (In Russ.)