03 March 2012 Written by  Araya Kebede and Sultan Kassim

Nomenclature

Two names, neither of which are fully descriptive nor wholly accurate and precise but could be interchangeably used to designate the subject, are in common use viz. Private International Law and Conflict of Laws (also shortened Conflicts rules).

The term private international law might connote that the subject somehow in the context of private disputes, partakes the affairs of the general law of nations. As to the other term besides indicating that laws do "conflict", it seems to assume the existence of laws of equal applicability, which is not necessarily the case. Moreover, it suggests that laws "conflict" and by hypothesis there is a mechanism (e.g. of superior authority or law, while in fact there is no one) for the resolution of the conflict.

One writer has also criticized the name "Conflict of laws" as a misleading one in the sense that the object of the subject is to eliminate any conflict between two or more systems of laws which have competing claims to govern the issue before the court, rather than to provoke such a conflict, as the words may appear to suggest.

Although there are other terms, such as law of multistate problems or transnational problems, which might be technically accurate and more descriptive, the above terminologies are maintained along with their flaws for the sake of their well established usage.

Definition and Analysis

Due to its nature, varying scope and other factors, it is found to be difficult to come up with a universally agreed upon single definition of the discipline ‘Conflict of Laws’. We neither have ours. Until we have our own definition of the subject, what the writers propose is to collect majority of possible elements of the discipline and construct a functional definition (or description).

Accordingly, it can be described as a branch of law which provides procedures and guidelines to assist a judge in private litigation, to select a court and a law to which a case is closely connected, which might appropriately be applied in resolving a legal dispute before the court arising out of a set of fact, events or transactions which have a foreign element. It, traditionally, also comprises rules of recognition and enforcement of foreign judgments and arbitral awards.

.

It deals with the questions of when and why the courts of one jurisdiction take into consideration the elements of foreign law or fact patterns in a case or consider the prior determination of another state in a case pending before them.Although the main focus is on choice-of-law process, questions of judicial jurisdiction, and recognition and enforcement of judgments of a foreign state are also governed by the rules of conflict of laws. (See the discussion on Scope, below).

The basic concept enshrined in the above definition is the idea of a "foreign element". What do we mean by foreign element? And what does it refer to?  It is better understood by employing an explanation. When a case is said to contain a foreign element, the reference(s) may be of three natures __ personal, local, or material __ in that, respectively illustrated, if one of the parties of the case is a foreigner (including one from another federating unit) or the transaction of any nature took place, totally or partially, abroad (outside the forum state) or, finally, the object of the dispute (property, esp. immovable property) is situated in another state (including a member of federation); the case is said to contain a foreign element.

For conflict of laws to come to the scene of the court, it is essential that a foreign element should exist in a case. In other word, if the case contains no foreign element, from the outset, this area of law is irrelevant. It functions only to the extent such element exists.

Nature

There are some features that characterize this discipline. Some of the defining elements could be elaborated as follows. The application of the rules of conflicts law (choice of law) does not by itself decide a case, unlike that of the rules of law of contracts, tort, or family.It does not solve a case in the sense that its rules do not furnish a direct substantive solution to the dispute at hand. It carries the case only half a way until a certain category of law is chosen in order to dispose of the case with a substantive remedy. We cannot talk about conflicts law rules after we choose the applicable system of law. The function of the rules is only up to that stage.

Conflict of laws is one department of law but not one amongst the peer departments such as family, contracts, and tort. It does nothing on its own. It deals with most private cases of civil and commercial nature so long as they contain a foreign element. To mention a point, this discipline is not concerned with public cases like criminal, revenue, customs, constitutional and administrative cases. Much will be said on this score on the topic – ‘Rules of Immediate Application’.

This body of law is an instrument or a technique merely providing a body of rules that prescribe the conditions under which a certain court is examined whether it has adjudicatory jurisdiction to entertain a case; and if it has the required competence, what system of law, the forum's or foreign, will be employed to decide the case or whether a judgment of a foreign court will be recognized and enforced by a state's courts. (See, again, the scope)

Another nature of the discipline is that conflict problems arise at both the international and national level (interstate conflicts). In the latter case the situation arises in countries with a federal constitutional setup such as the present Ethiopia in which powers are divided between the component states of the Federation and the federal government. (See Art.50 Subs-(1) and (2) of the FDRE Const.) To the extent that the constituents of the federation are endowed by the federal constitution with the power to enact their own respective laws, the states are treated as independent for the purpose of conflicts law. Each unit is regarded as separate and sovereign entity having distinct and separate legal system concerning the areas of legislative power entrusted to them. Besides, the states are to consider one another as a foreign nation but in a sisterhood manner. Hence, a case that concerns domiciliaries of at least two states is said to contain a foreign element.

At this juncture, mention of one point is important. Except that the inter-state (state - state) conflicts work under the umbrella of the Federal Constitution ___the fundamental law of the country; inter-state conflict of laws' principles are essentially the same as to the international (country - country) conflicts. A case can also arise between a "domiciliary" of a federating state and another state in the international sense (state - foreign country). For example, a case of validity of marriage between a boy from the Gambella Region of the FDRE and his former Sudanese girl friend is said to contain a foreign element. Hence, there may be  a conflict of case. In this case, the family laws of the Gambella Region (and not necessarily of Ethiopia as a whole) and the Sudan will be vying for application ___ which of them applies to resolve the case?

Not to mention about the independent sovereign states, the laws of the federating units differ one from another in connection to their approaches to the needs of the various communities they serve. This is so because laws usually if not always, reflect the culture, custom or usage, economic status, religion, and other needs of the society which they encompass. It logically follows that different laws will exist due to the abovementioned factors. Again the natural consequence is that it will not be uncommon for transactions to arise or disputes to happen between or among persons or/and entities of those different states.

Scope

Another area of disagreement in this discipline is regarding the areas it comprises. According to the traditional view, conflicts mainly deal with three major sub-divided but interrelated areas. They are, in the chronological order in which the three subjects are likely to be met in practice, judicial jurisdiction, choice of law, and recognition and enforcement of foreign judgments and foreign arbitral awards. Many civil-law legal system nations regard questions of jurisdiction and recognition and enforcement of foreign judgments and arbitral awards as matters of international procedural law, not issues of private international law. According to these countries, the discipline deals essentially with choice of law problems.

However, these Civil Law Legal System following nations, such as France, have choice of law rules which turn on the connecting factor nationality of one or both parties. Hence, the subject in those countries often encompasses the Law of Nationality and Citizenship and some special rules pertaining to the position of aliens.Some countries also add another category to the subject: International Legal Cooperation in civil matters. However, the elements in this very paragraph do not enjoy the acceptance of conflicts scholars for they involve more of Public International Law than Private International Law. This teaching material is developed in line with traditionally established scope of conflicts - the trio and not the quartet.

In this connection, although it is obvious that Ethiopia does not have a codified and coherent conflicts law, Art.11 (2) (a) and (c) of Proc. 25/1996 and the Civil Procedure Code of Ethiopia (esp. the former) deliberately or not implies that (recognition) and enforcement of foreign judgments is not part of conflicts discipline. On the other hand, Art.3 of the Initial Draft Proclamation to Provide for Federal Rules of Private International Law prepared by the Justice and Legal System Research Institute considers the three elements as parts of the discipline. What do the three elements mainly deal with?

Judicial jurisdiction, dispute-resolving power or competence to hear and determine a case, is about whether a court of a particular state can appropriately entertain a case with a foreign element. As will be expounded in chapter two, there are different categories of theories of judicial jurisdiction.

Choice of law, for which "conflict of laws" is often used as a synonym and to which "conflict of laws" is referring when used in its narrow sense, is the most volatile, difficult and challenging of the three principal conflicts subdivisions. It is concerning the selection of the appropriate rules of a system of law, the forum's or foreign’s, which it should apply in deciding a case over which it has jurisdiction. The rules that are employed for the purpose of selection of same are known as "choice of law" rules. The issue arises whenever citizens of different states have a connection to a certain case and a contention arises as to which their respective laws differ, or there is “genuine conflict". This time a choice of the applicable law comes to the stage.

However; first, it could be argued that no choice need be made if an average solution can be distilled from the various conflicting laws; second, it is possible, perhaps, to evade that choice if the laws involved are materially the same. This much suffices for the moment. The concept's doctrines and its relationship with other fields will be dealt with in subsequent discussions.

The third and last category of the conflicts realm regards the heart of any litigation. It is about the recognition and enforcement of court judgments and arbitration awards rendered by foreign courts and arbitration tribunals, respectively.“Foreign" in this sense does also denote a state in a federation besides a fully politically independent sovereign country. For both cases, in general state means a certain geographic portion of the earth's surface having an independent system of law.

The scope of the discipline can also be seen in its relation with public international law. Private international law and public international law are two different but somehow related areas of laws. While the former, which is part of each state's domestic law, is concerned with the legal relations between private individuals and corporations/partnerships/companies, though also with the relations between states and governments so far as their relationships with other entities are governed by municipal law (an example being a government which contracts with individuals and corporation by raising a loan from them); the latter (public int'l law) is the name for the body of rules and principles which govern states and international organizations in their mutual relations about which "there exist a certain degree of consensus". However, it has to be noted that even private individuals are becoming subjects of public international law esp. in areas of international crimes.

Despite their differences, one can notice that they have a good deal of common grounds. First, in a largely common historical origin; second, in the 17th century basis of the conflict of laws in the territorial theory of sovereignty and comity; thirdly, in exception to the normal application of law created by sovereign and diplomatic immunity; and finally, by overriding considerations applied by the courts to displace the normal operation of rules of the conflicts when they threaten friendly international relations.

Raison d’être

Why and how could the question arise? Can’t we get rid of it? A certain conflicts scholar by the name Arthur Taylor von Mehrenwrote that if human society were so organized that all aspects of life moved within economic, social, legal, and political spheres that were unitary and coexistence; the problems dealt with through choice of law would never arise. The reality is not, however, so. There are certain factual and legal realities that necessitate the existence of the choice of law discipline.

There is a fact, which all conflicts thinking is premised at, that some legal transactions are somehow connected with more than one legal community, either because the parties to the transaction are citizens or domiciliaries or residents of different jurisdictions, or because the occurrence that gave rise to their legal relationship took place in another state and/or their own, or because the object of their relationship is situated elsewhere. Moreover different legal communities have different laws. There is no universally established law governing relationships between private parties. In other words, integration and diversity, the two dominant features of modern culture, together give rise to conflicts cases. Different communities' cultures are naturally diverse and since this feature cannot absolutely be done away with, practical necessity calls for harmonization or integration as a sole alternate.

Because of economic, such as commerce; social, such as marriage; political; natural catastrophe; even war, and some other related phenomena: people move or travel from state to state or from jurisdiction to jurisdiction. This is aggravated (or "facilitated"?) by the "constantly improved means of transportation and communication ". This fact necessarily results in the creation of transactions connected with more than one jurisdiction. This inevitably gives rise to disputes, as in any legal transactions. But what is unique about this dispute is for the nature of the issue is inter-provincial or transnational. The transactions as well as the disputes arising therefrom clearly involve more than one state, resulting in the involvement of different systems of laws.

To sum up, it often happens that the transactions entered into in one place have force and effect in a different country or are judicially decided upon in another place. And it is to be immediately underscored that the legal order itself is decentralized among a plurality of sovereign or autonomous authorities.In other words, the laws of many countries even regulating similar categories of social life may not be the same. But this situation cannot stand and continue as it is. It would be against the reality on the ground. It would be against today's interdependent society’s behaviour. The contemporary or modern situation of the civilized world ___ integrated society (e.g., via globalization, to the extent, in an international scene and “to live as one economic and social community" in a federal scene) demands the integration of the diverse laws. As indicated above, therefore, necessity is the fundamental motivating force - the need for order so that better life can exist and continue.

Functions

As a mechanism; if uniform laws cannot be made for all states which is largely unattainable, it will be the concern of the conflict of laws realm to come up with a mode of adjustment to do away with the unfavourable effects of the existence of diverse laws.

But, after all, why such a worry? Why don’t we simply apply the law of the forum for any case that comes to the attention of the forum, which is the easiest way to the judge no matter whether it involves a foreign element? What are the controlling motives behind allowing the application of foreign laws but in another nation’s soil?

The dominant motivating principle is the desire to do justice in cases involving a foreign element. The invariable application of the lex fori i.e., the local law of the place where the court is situate, would often lead to gross injustice as in this case: suppose a couple were married abroad many years ago. The marriage ceremony (which is not an essential element in a marriage relationship), though regular according to the law of the place where it was performed, did not perhaps satisfy the formal requirements of the forum law. Nevertheless, to apply the forum's relevant law to test the formal validity of such a union, and thereby to deny that the couples are husband and wife, would be nothing but a travesty of justice.

Generally, according to the traditional choice of law method, the way this objective should be achieved is through the proper functioning of the carefully formulated choice of the relevant or appropriate legal rules which are also believed to have substantially incorporated sense of justice and are structured based on a sufficient or genuine connection. The rules to this effect are carefully formulated means that not only should the choice-of-law criteria employed be more subtle, more sensitive to actual fact patterns but they should also reflect the law's general concern for substantive justice in order to render, at the final analysis, a just result.

In other words, the local law (lex fori) may not always necessarily be the proper law (lex causae) that should govern the transaction at hand. Another law other than the lex fori might be the appropriate law. In both ways, to apply either the lex fori or foreign law; it is through the predetermined choice-of-law rules that one can reach the applicable law. The choice-of-law rules help us settle the problem of choice between possible eligible laws. A judge is required essentially to apply the law found to be applicable through the direction of the choice-of- law rules unless there are strong reasons such as public policy not to do so. Any choice-of-law rule should not express any bias for, or may be against, forum law. It should only put the bases or criteria that would enable us select the appropriate applicable law, which could be the forum's or another country’s.

The other main reason why recognition and thereby application of a foreign law in a case containing a foreign element is necessary is to determine the rights and obligations of the parties in the sense that if the court is to carry out in a rational manner, the policy to which it is committed __ that of entertaining actions in respect of foreign claims __ it must be in the normal course of things, take account of the relevant foreign law or laws which the parties' concerned rights and obligations were created (the Vested Rights Approach). In other words; if the parties have selected a foreign law, expressly or impliedly, to govern their rights and liabilities under it, and have regulated their positions on the assumption that the foreign law would govern, it would in most cases be wholly wrong for the forum court to impose different rights and duties on them by applying the unintended local law. The assumption is that two countries’ laws of even the same legal category are different in their substance. Accordingly, the right and duties they create are different in content. This necessarily implies that the legal effects of an act performed in one state differ from those of another state's legal effects of similar act. It is from this situation that the threat of limping legal relations emanates – when a legal condition created by one law is not validated by another.

It is the task of the choice-of-law rules to intervene in order to prevent limping legal relationships and protect individuals who acted in careful compliance with the law which is believed to govern their everyday legal conducts. Individuals should be able to know what rule of law to govern them and have reasonable expectation that this rule of law will be the measure of their rights and obligations whenever and wherever the question may eventually arise. In that a right having been created by the appropriate law of a state where some definitive fact occurred, the recognition of its existence should follow everywhere unless public policy reasons of the forum forbid so.

Another objective that conflicts law is destined to achieve is preventing or reducing forum shopping which is an impediment to the smooth operation of law in multistate cases caused by the existence of the combination of multistate legal intercourse and legal diversity. Forum shopping is making use of jurisdictional options to affect the outcome of a lawsuit provided that all courts would always apply their own laws. This is again due to the assumption that laws of different states are not the same.

How can we reduce forum shopping?

The two ways this goal could be achieved are: first, to delineate the boundaries of a court's jurisdiction in multistate cases in the sense that there will be only one state where the plaintiff could bring suit and there would be no opportunity for forum shopping. In the presence of the conflicts law applicable to the whole federation, this is attainable in interstate conflicts problem involving cases. Second; which is also possible to be achieved having a federal choice-of-law rules, is even the plaintiff has a choice between several laws for a given case; a unilateral choice of forum would not make any difference to the outcome of the case. The key point here is to have one choice-of-law rule that directs to a fixed applicable law.

Not only indiscriminately applying the local law, the following illustration can elaborate how injustice can also be made when the forum court assumes jurisdiction over any case which is referred to it. A great injustice might be done to a foreigner, who is abroad and who has not agreed to submit to a forum's court a dispute arising from a transaction which is not connected to the forum by summoning him before that court and so placing him in dilemma that either he has to incur the inconvenience and expense of coming to the forum to defend his interests or he has to run the risk of default judgment and so putting in peril assets he may possess here.

Finally, let us wind up our discussion looking at how the third element of conflicts __ recognition and enforcement of foreign judgments and arbitral awards, can promote justice or, conversely speaking, avoid injustice. The following example can afford a justification for granting recognition and enforcement to a foreign decision. If the rendition forum (the forum that rendered or passed the decision) has exclusive jurisdiction but the judgment can only be enforced in the recognition or enforcing forum (assume the court is where sole enforcement can be effected); or in other words, if the person cannot bring a de novo action in the recognition forum for the latter lacks judicial jurisdiction and the person cannot demand enforcement in that forum, he will be left without any remedy __ which is completely unfair! The only alternative to do away with this gross injustice is to lend a hand i.e., to recognize and/or enforce the judgment.

Generally, it is via the various conflicts rules besides choice of - law rules, the rules concerning judicial jurisdiction, and recognition and enforcement of foreign laws and arbitral awards, acts and decisions that the above ends or goals __ to do justice and to determine the rights of the parties’ __ could be achieved. How? The conflicts rules, in a way of protecting states' (or their citizens') legal intercourse from being greatly impeded, settle the problem of choice between eligible laws, delineate the boundaries of a court's jurisdiction in multi-state cases, and put a standard to measure the acceptability of foreign judgments either to recognize or to recognize and then enforce. The same holds good for awards.

Last modified on Wednesday, 02 May 2012 13:05