Private International Law

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Conflict of laws or private international law


Conflict of laws or private international law (both terms are used interchangeably)[1] concerns relations across different legal jurisdictions between persons, and sometimes also companies, corporations and other legal entities.[2][3] Choice of laws Courts faced with a choice of law issue have a two-stage process: the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or residence (lex domicilii)[domicilium in Latin means home or residence and see at 'European Harmonization Provisions':

"The concept of habitual residence is the civil law equivalent of the common law test of lex domicilii".] will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice

Dow Jones v Gutnick [2002] HCA 56

Conflict of laws or private international law,From Wikipedia


Private International Law. A Treatise on the Conflict of Laws: And the Limits of Their Operation

Chapter 1 pdf pg 61 STATEMENT OF THE QUESTION.

13 Every right presents itself in its primary aspect as a power belonging to the person (b)y and, accordingly^ as a quality of that person ; and from this most direct and rudimentary standpoint we have to regard legal relations also as attributes of persons. In this way the question with which we are engaged would be viewed thus :

Over what persons does each rule of law extend its authority ? or, conversely (§ 344) :

What are the laws to which a given person is subject? The following consideration, however, must at once convince us, that this statement of the question is not sufficient. In the region of the acquired rights (c), the individual extends himself after the objects of these acquired rights ; and from this extension arises at least the possibility of his entrance into the territory of a rule of law originally alien to him. This bare possibility takes quite a new form, if we contemplate the nature of the objects of acquired rights. Among them we find, first of all, other personsy of whom, again, each is subject to a particular set of authoritative rules ; and as it is quite accidental, whether two persons connected in the same legal relation belong to the same or to different legal territories, there arises a new and very prolific source of collisions between the rules of law which govern legal relations. The following outline of the subjects of the rules of law will show in how many ways collisions may take place between the rules of different territories of positive law (d). Laws may have for their subject-matter : — L Persons themselves, their capacity for rights and capacity for acting, or the conditions under which they can have rights and acquire rights. It is this class of the rules of law with which we started at the beginning of the section. (h) See above, Book I. § 4. [See Introduction. Some writers have therefore regarded the domicile of the person as the central principle regu- lating all questions of private international law. Eichhom, DeuUtches Privatrecht, §§ 27, 86 ; Mbaut, Pandektenrecht, § 38 (Lindley's Transl., p. 37) ; Gosdien, CivUrecht, i. p. 111. A peculiar form of this theory is found in Mailher de Ghassat, Traite des StatutSy 11, 53. See Bar, §22.] (c) Vol. i. § 53. (d)This view is intended to serve only as a preliminary abstract. It will be given more in detail below (§ 861).

STATEMENT OF THE QUESTION. II. The Legal Relations.
  1. Bights to specific things
  2. Obligations
  3. Bights to a whole estate, as an ideal object of indefinite extent (Succession)
  4. Family relations

From this summary, it is evident that the first and im- mediate object to which the rule of law applies is the person ; and while it is, in the first instance, the person in its general character, as the subject and center of all rights, it is also the person, in so far as, by its free actions in the most numerous and most important cases, it produces, or helps to produce, the legal relations. But the person expands itself into artificial extensions of its being. It seeks to have dominion over things, and thus betakes itself to the place which these things occupy — possibly, there- fore, enters the territory of a foreign law. This takes place most distinctly in respect of immoveables, the site of which is not accidental and changeable ; but, in reality, it is not less true of things moveable. By means of obligations, a person seeks to control the actions of others, or to subject his own acts to an- other's will. He enters into particular forms of life by the family; and thus also in many ways, sometimes voluntarily, sometimes involuntarily, oversteps the limits of his original and purely personal rights. It follows, from these considerations, that the rule of law applicable to every given case is determined and bounded, first and chiefly, by the subjection of the person concerned to the law of a certain territory ; ^ but that, at the same time, there may be the most numerous and most important modifications, in con- sequence of the relation in which certain things or certain acts or relations of life stand towards the laws of other territories (e). Our first task, then, will be to inquire what principles deter- mine the general connection of a person with a particular legal territory.