conflict of laws

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conflict of laws


CONFLICT OF LAWS. This phrase is used to signify that the laws of different countries, on the subject-matter to be decided, are in opposition to each other; or that certain laws of the same country are contradictory.
     2. When this happens to be the case, it becomes necessary to decide which law is to be obeyed. This subject has occupied the attention and talents of some of the most learned jurists, and their labors are comprised in many volumes. A few general rules have been adopted on this subject, which will here be noticed.
     3. - 1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The laws of every state, therefore, affect and bind directly all property, whether real or personal, within its territory; and all persons who are resident within it, whether citizens or aliens, natives or foreigners; and also all contracts made, and acts done within it. Vide Lex Loci contractus; Henry, For. Law, part 1, c. 1, 1; Cowp. It. 208; 2 Hag. C. R. 383. It is proper, however, to observe, that ambassadors and other public ministers, while in the territory of the state to, which they are delegates, are exempt from the local jurisdiction. Vide Ambassador. And the persons composing a foreign army, or fleet, marching through, or stationed in the territory of another state, with whom the foreign nation is in amity, are also exempt from the civil and criminal jurisdiction of the place. Wheat. Intern. Law, part 2, c. 2, Sec. 10; Casaregis, Disc. 136-174 vide 7 Cranch, R. 116.
     4. Possessing exclusive authority, with the above qualification, a state may regulate the manner and circumstances, under which property, whether real or personal, in possession or in action, within it shall be held, transmitted or transferred, by sale, barter, or bequest, or recovered or enforced; the condition, capacity, and state of all persons within it the validity of contracts and other acts done there; the resulting rights and duties growing out of these contracts and acts; and the remedies and modes of administering justice in all cases. Story, Confl. of Laws, Sec. 18; Vattel, B. 2, c. 7, Sec. 84, 85; Wheat. Intern. Law, part 1, c. 2, Sec. 5.
     5. - 2. A state or nation cannot, by its laws, directly affect or bind property out of its own territory, or persons not resident therein, whether they are natural born or naturalized citizens or subjects, or others. This result flows from the principle that each sovereignty is perfectly independent. 13 Mass. R. 4. To this general rule there appears to be an exception, which is this, that a nation has a right to bind its own citizens or subjects by its own laws in every place; but this exception is not to be adopted without some qualification. Story, Confl. of Laws, Sec. 21; Wheat. Intern. Law, part 2, c. 2, Sec. 7.
     6. - 3. Whatever force and obligation the laws of one, country have in another, depends upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. Huberus, lib. 1, t. 3, Sec. 2. When a statute, or the unwritten or common law of the country forbids the recognition of the foreign law, the latter is of no force whatever. When both are silent, then the question arises, which of the conflicting laws is to have effect. Whether the one or the other shall be the rule of decision must necessarily depend on a variety of circumstances, which cannot be reduced to any certain rule. No nation will suffer the laws of another to interfere with her own, to the injury of her own citizens; and whether they do or not, must depend on the condition of the country in which the law is sought to be enforced, the particular state of her legislation, her policy, and the character of her institutions. 2 Mart. Lo. Rep. N. S. 606. In the conflict of laws, it must often be a matter of doubt which should prevail; and, whenever a doubt does exist, the court which decides, will prefer the law of its own country to that of the stranger. 17 Mart. Lo. R. 569, 595, 596. Vide, generally, Story, Confl. of Laws; Burge, Confl. of Laws; Liverm. on Contr. of Laws; Foelix, Droit Intern.; Huberus, De Conflictu Leguin; Hertius, de Collisions Legum; Boullenois, Traits de la personnalite' et de la realite de lois, coutumes et statuts, par forme d'observations; Boullenois, Dissertations sur des questions qui naissent de la contrariete des lois, et des coutumes.

References in periodicals archive ?
This "traditional" system reached its apogee in 1934 with the publication of the Restatement of Conflict of Laws, spearheaded by Harvard Law School Professor Joseph H.
Restatement (Second) of Conflict of Laws [section] 138 (1971) [hereinafter Restatement (second)]; Restatement (First) of Conflict of Laws [section] 597 (1934) [hereinafter Restatement (First)].
If a tribunal (16) does not have jurisdiction over either the matter or the parties, then no conflict of laws problem arises--a tribunal without jurisdiction may not affect substantive rights.
Despite characterization being the first step which the courts have to encounter in any given conflict of laws case, few would doubt the accuracy of the above statement in relation to the degree of clarity that common law courts have given to the characterization process.
Klaxon (131) is the choice-of-law sequel to Erie, holding that "in diversity cases the federal courts must follow conflict of laws rules prevailing in the states in which they sit.
While the New York Court of Appeals tries to mask its rejection of such an approach under the cloak of Babcock, where New York abandoned the rule of lex loci delicti for a more complex rule that more adequately considered the various jurisdictional interests involved in a lawsuit, (91) this approach--to presumptively use the law of the locus or in the case of the Restatement (Second) of Conflict of Laws (92)--to presumptively use the place of the wrong--is essentially identical to that of the third catch-all Neumeier rule used in New York.
In 1909, at twenty-five years of age, Ivan Rand commenced studies at Harvard Law School, perhaps then the only place for the study of Conflict of Laws (also known as Private International Law).
Theaud received his Master's of Law, cum laude, from the University of Paris X, Nanterre France, and a Post Graduate Law Degree in Conflict of Laws and International Business Trade, cum laude, from the University of Paris I, Sorbonne.
The article concludes with a discussion of cross-boarder jurisdiction and the applicable principles of conflict of laws.
HOW splendid that Sharia law has been amplified for a top legal audience by the senior Anglican Archbishop, as a supplementary addition to British law, provided of course there would be no conflict of laws.
21) During the draft of the Swiss Law on Conflict of Laws the majority of the drafters agreed that Lex Mercatoria may be applied as a law with which the dispute has the closest connection (22).
Part I analyzes the relevant historical background and development of the two prevailing choice of law methodologies for tort cases--the traditional rule of lex loci delicti of the First Restatement of Conflict of Laws (16) and the "most significant relationship" rule of the Second Restatement of Conflict of Laws.

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