The conflict of laws

Citation

Briggs, A. (2013). The conflict of laws (3rd ed.). Oxford University Press.

Chapter Summary

Chapter 1: Introduction

• Nature of the Subject: Discusses the fundamental concepts and scope of conflict of laws, emphasizing its relevance in addressing legal disputes involving foreign elements.
• Private International Law as Common Law: Examines the traditional common law approach to private international law, exploring its principles and historical development.
• Legislation Establishing Private International Law as European Law: Analyzes the impact of European legislation on private international law, detailing the transition from a common law framework to a European legal structure.

Chapter 2: Jurisdiction

• Jurisdiction or Jurisdictions?: Introduces the concept of jurisdiction in conflict of laws, differentiating between various types of jurisdiction.
• Regulation Jurisdiction: Introduction: Overview of jurisdiction under European regulations.
• Regulation Jurisdiction: The Detail: Detailed analysis of the specific rules and regulations governing jurisdiction in European private international law.
• Common Law Jurisdiction: Discusses the principles and practices of jurisdiction under common law.

Chapter 3: Foreign Judgments

• Recognition and Enforcement: Explores the criteria and processes for recognizing and enforcing foreign judgments.
• Registration of Foreign Judgments:
• The Brussels I Regulation: Covers the registration of judgments under the Brussels I Regulation.
• The 1920 and 1933 Acts: Discusses historical acts concerning the registration of foreign judgments.
• The Indirect Effect of Judgments from the Rest of the World: Focuses on the common law approach to foreign judgments not covered by European regulations.

Chapter 4: Choice of Law: The Lex Fori

• Procedural Issues: Addresses procedural matters in the application of foreign law.
• Penal, Revenue, and Public Laws: Examines the exclusion of certain laws from the conflict of laws framework.
• Public Policy: Discusses the role of public policy in determining the applicability of foreign law.

Chapter 5: Obligations: Contractual

• Introduction: Overview of contractual obligations in conflict of laws.
• The Rome I Regulation: Detailed analysis of the Rome I Regulation governing contractual obligations.
• Contracts Concluded Before 18 December 2009: Explores the rules applicable to contracts concluded before the Rome I Regulation came into force.

Chapter 6: Obligations: Non-Contractual

• Introduction: Overview of non-contractual obligations.
• The Rome II Regulation: Detailed examination of the Rome II Regulation governing non-contractual obligations.
• Non-Contractual Obligations Outside the Rome II Regulation: Discusses non-contractual obligations not covered by the Rome II Regulation.

Chapter 7: Property

• Immovable Property: Covers conflict of laws rules related to immovable property.
• Movable Property: Discusses the rules applicable to movable property.
• Title by Seizure and Confiscation: Examines the acquisition of title through seizure and confiscation.
• Trusts: Analyzes conflict of laws issues concerning trusts.
• Personal Status and Property Rights: Explores the relationship between personal status and property rights.

Chapter 8: Persons

• Adults: Discusses conflict of laws issues related to adults, including capacity and personal status.
• Children: Focuses on the conflict of laws rules applicable to children, including custody and guardianship.

Chapter 9: Corporations

• Corporations: Examines the conflict of laws issues related to corporations, including incorporation, governance, and cross-border operations.

Index

• A comprehensive index providing references to key topics and cases discussed in the book.

Key Concepts

1. Conflict of Laws

• Definition: A legal discipline dealing with cases involving more than one jurisdiction or legal system. It addresses issues such as jurisdiction, choice of law, and recognition of foreign judgments.

2. Jurisdiction

• Types: Distinguishes between personal jurisdiction, subject matter jurisdiction, and territorial jurisdiction.
• Principles: Discusses the bases for asserting jurisdiction, including domicile, presence, consent, and long-arm statutes.
• European vs. Common Law Jurisdiction: Compares the jurisdictional rules under European regulations and common law traditions.

3. Recognition and Enforcement of Foreign Judgments

• Criteria: Details the conditions under which foreign judgments are recognized and enforced, including reciprocity, public policy, and due process considerations.
• Brussels I Regulation: Focuses on the streamlined process for recognizing and enforcing judgments within EU member states.
• Common Law Approach: Examines the traditional common law principles governing the recognition and enforcement of foreign judgments.

4. Choice of Law

• Lex Fori: Principle that the law of the forum (the court where the case is heard) applies to procedural matters.
• Rome I and II Regulations: Governs the choice of law for contractual and non-contractual obligations within the EU, emphasizing predictability and consistency.
• Public Policy: Examines exceptions to the application of foreign law based on public policy considerations.

5. Contractual Obligations

• Rome I Regulation: Provides rules for determining the applicable law for contractual obligations, focusing on party autonomy and specific rules for consumer contracts, employment contracts, and insurance contracts.
• Pre-Rome I Contracts: Discusses the conflict of laws rules applicable to contracts concluded before the Rome I Regulation came into force.

6. Non-Contractual Obligations

• Rome II Regulation: Details the rules for determining the applicable law for non-contractual obligations, including torts, unjust enrichment, and negotiorum gestio (management of another’s affairs without their authorization).
• Non-Rome II Obligations: Discusses conflict of laws rules for non-contractual obligations not covered by the Rome II Regulation.

7. Property

• Immovable Property: Focuses on the conflict of laws rules applicable to real estate, typically governed by the law of the location (lex situs).
• Movable Property: Discusses the rules for determining the applicable law for personal property, including issues of ownership, transfer, and security interests.
• Trusts: Examines the conflict of laws issues related to trusts, including the applicable law for the creation, validity, and administration of trusts.

8. Personal Status

• Adults: Covers issues related to the personal status of adults, including capacity, marriage, and divorce.
• Children: Focuses on conflict of laws rules applicable to children, including custody, adoption, and parental responsibility.

9. Corporations

• Incorporation: Discusses the conflict of laws rules related to the incorporation and legal status of corporations.
• Cross-Border Operations: Examines issues related to the operation of corporations across different jurisdictions, including mergers, insolvency, and the recognition of foreign corporate entities.

10. Public Policy

• Role in Conflict of Laws: Explores how public policy considerations can influence the application of foreign law, including the refusal to apply foreign law that is contrary to the fundamental values of the forum.

These key concepts provide a foundation for understanding the complex and multi-faceted nature of conflict of laws, highlighting the interplay between different legal systems and the principles that guide the resolution of cross-border legal disputes.

Critical Analysis

1. Evolution of Conflict of Laws

• The transition from common law principles to a European framework in private international law represents a significant shift. Briggs highlights the challenges and opportunities this evolution presents, particularly the tension between historical common law approaches and the more functional, regulation-driven methods of the EU. This shift has reshaped the landscape, making it crucial for practitioners to adapt to new legislative instruments and judicial interpretations.

2. Jurisdictional Complexities

• The book’s detailed examination of jurisdiction underscores the complexity of determining the appropriate forum for legal disputes. Briggs’ analysis of the Brussels I Regulation and its impact on jurisdictional rules reveals a trend toward centralization and harmonization within the EU. However, he also notes that this can sometimes lead to rigidity, potentially limiting the flexibility that common law jurisdictions traditionally offer.

3. Recognition and Enforcement of Judgments

• Briggs critically evaluates the mechanisms for recognizing and enforcing foreign judgments, pointing out both strengths and weaknesses. While the Brussels I Regulation has streamlined processes within the EU, the common law approach still grapples with issues of reciprocity and public policy. This dual framework requires practitioners to be adept at navigating both systems.

4. Choice of Law Principles

• The analysis of choice of law rules, particularly under the Rome I and II Regulations, highlights the balance between predictability and flexibility. Briggs argues that while these regulations provide clear guidelines, they also impose constraints that may not always align with the interests of justice in individual cases. The principle of lex fori, and its application to procedural matters, further illustrates the ongoing tension between local legal traditions and overarching European norms.

5. Contractual and Non-Contractual Obligations

• The distinction between contractual and non-contractual obligations in conflict of laws is meticulously explored. Briggs emphasizes the importance of the Rome I Regulation in standardizing rules for contractual obligations but notes that pre-existing contracts require careful consideration of transitional rules. Similarly, the Rome II Regulation’s approach to non-contractual obligations brings clarity but also raises questions about its applicability to emerging forms of liability, such as those related to digital and technological advancements.

6. Property Law

• The treatment of property, both immovable and movable, in conflict of laws showcases the diverse approaches within different jurisdictions. Briggs’ analysis of the lex situs principle for immovable property versus the more flexible rules for movable property reflects the inherent complexities in cross-border property transactions. The discussion on trusts highlights the unique challenges posed by this legal construct, particularly in jurisdictions that do not recognize trusts.

7. Personal Status and Family Law

• Briggs’ examination of personal status, especially in relation to children and family law, underscores the sensitive nature of these issues in conflict of laws. The interplay between national laws and international conventions, such as the Hague Convention on Child Abduction, illustrates the need for a nuanced approach that balances legal principles with the best interests of individuals involved.

8. Corporate Entities

• The analysis of conflict of laws issues related to corporations highlights the global nature of corporate operations and the legal challenges they face. Briggs discusses the incorporation doctrine and the recognition of foreign corporations, emphasizing the importance of consistent legal standards to facilitate cross-border business activities.

9. Public Policy

• The role of public policy in conflict of laws serves as a critical safeguard against the application of foreign laws that may be fundamentally incompatible with the forum’s values. Briggs’ discussion reveals the delicate balance courts must strike in respecting foreign judgments and laws while protecting the integrity of their legal system.

10. Practical Implications

• Throughout the book, Briggs stresses the practical implications of conflict of laws for legal practitioners. The need for a thorough understanding of both common law and European regulations is paramount, as is the ability to apply these principles effectively in a globalized legal environment. His critical analysis encourages practitioners to think critically about the evolving landscape and to develop strategies that accommodate both traditional and modern legal frameworks.

Briggs’ work provides a comprehensive and critical examination of conflict of laws, offering valuable insights into its principles, evolution, and practical applications. His analysis highlights the dynamic nature of this legal field and underscores the importance of adaptability and critical thinking for practitioners.

Real-World Applications and Examples

1. Cross-Border Commercial Contracts

• Example: A UK-based company enters into a contract with a German supplier. The Rome I Regulation will determine the applicable law, often allowing parties to choose the governing law in their contract. If no choice is made, the Regulation provides default rules based on the nature of the contract. For instance, the law of the country where the supplier has its habitual residence might apply.
• Application: Lawyers must ensure that the chosen law is explicitly stated in the contract to avoid uncertainties and ensure predictability in legal outcomes.

2. International Divorce and Custody Disputes

• Example: A French citizen and a Spanish citizen, residing in Italy, decide to divorce. The Brussels II Regulation will help determine which country’s courts have jurisdiction over the divorce proceedings and custody arrangements for their children.
• Application: Legal practitioners must navigate various national laws and EU regulations to provide clients with accurate advice on jurisdiction, applicable law, and the enforcement of judgments across borders.

3. Recognition and Enforcement of Foreign Judgments

• Example: An American court awards damages to a plaintiff in a tort case. The plaintiff seeks to enforce this judgment in the UK. Under the common law system, the UK court will assess the judgment based on principles of reciprocity, public policy, and due process.
• Application: Lawyers must prepare to argue for or against the recognition and enforcement of foreign judgments, understanding the criteria that UK courts consider, such as whether the original court had proper jurisdiction and if the judgment was obtained fairly.

4. Jurisdiction in Online Transactions

• Example: A consumer in Ireland purchases goods from an online retailer based in Spain, and a dispute arises regarding the transaction. The Brussels I Regulation outlines jurisdiction rules, often giving the consumer the right to sue in their home country.
• Application: Legal professionals must be adept at interpreting jurisdictional rules for online transactions, ensuring clients are aware of their rights and the appropriate forum for resolving disputes.

5. Corporate Insolvency Proceedings

• Example: A multinational corporation with subsidiaries in various EU countries files for insolvency. The EU Insolvency Regulation aims to coordinate insolvency proceedings across member states, determining the main proceeding and recognizing its effects throughout the EU.
• Application: Lawyers handling cross-border insolvency cases must identify the center of the debtor’s main interests (COMI) and coordinate with legal systems in different jurisdictions to protect creditors’ interests and manage the debtor’s assets effectively.

6. Conflict of Laws in Employment Contracts

• Example: An employee based in Italy but working for a UK company in various EU countries has a dispute regarding employment terms. The Rome I Regulation will help determine the applicable law, often considering where the employee habitually carries out their work.
• Application: Employment lawyers need to draft contracts that clearly specify the applicable law and jurisdiction, anticipating potential cross-border issues and providing clarity for both employers and employees.

7. Property Transactions Across Borders

• Example: A UK citizen buys real estate in France. The lex situs principle means French law will govern the transaction. Any disputes or legal issues related to the property will be resolved under French law.
• Application: Real estate lawyers must have expertise in the property laws of the jurisdiction where the property is located and advise clients on the implications of these laws for their transactions.

8. Trusts in International Contexts

• Example: A trust is set up in the Cayman Islands for beneficiaries residing in the UK. The Hague Trusts Convention, adopted by the UK but not the Cayman Islands, affects the recognition of the trust.
• Application: Trust and estate lawyers must navigate the complexities of different jurisdictions’ recognition and treatment of trusts, ensuring that the trust’s structure complies with relevant laws and achieves the client’s objectives.

9. Cross-Border Tort Claims

• Example: A German tourist is injured in a car accident in Italy. The Rome II Regulation will determine the applicable law for the non-contractual obligation, usually the law of the place where the damage occurred (Italy).
• Application: Personal injury lawyers need to understand the applicable rules for determining the law governing tort claims, advising clients on the potential legal outcomes and procedures in the relevant jurisdiction.

10. Enforcement of Arbitration Awards

• Example: An arbitration award is issued in New York under the New York Convention, and the winning party seeks enforcement in the UK. The UK, as a signatory to the Convention, will generally enforce the award, subject to limited grounds for refusal.
• Application: Arbitration lawyers must be proficient in the procedures for enforcing international arbitration awards and the defenses available under the New York Convention, guiding clients through the enforcement process in different jurisdictions.

These real-world applications and examples illustrate the practical significance of conflict of laws in various legal contexts. They demonstrate the necessity for legal practitioners to be well-versed in both national and international regulations to effectively navigate cross-border legal issues and provide comprehensive legal advice to their clients.