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 ?
In antiquity, there were no texts granting the value of a conflict of laws to the autonomy of will (1).
Delta's lawyer responded by arguing that the State F trial court was obligated under the doctrine of stare decisis to apply the traditional choice of law rules endorsed in the first Restatement of Conflict of Laws, as the State F Supreme Court has always applied those rules in the past and has never indicated an inclination to adopt in their place any of the policy-based approaches to resolving choice of law issues.
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.
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The Restatement (Second) Conflict of Laws ("Restatement") provides a COL analysis that unambiguously prohibits a court from enforcing a COL clause if doing so would result in an unsophisticated insured losing the benefit of his home state's consumer protection laws.
This approach had its origins in the Dutch private international law school of the seventeenth century, (22) and later influenced (in turn) Joseph Story (23) (in the United States), Albert Venn Dicey (24) (in the United Kingdom), and Joseph Henry Beale (25) (in the United States), who would author the First Restatement of Conflict of Laws (1934) for the American Law Institute.
12) Since the adoption of these rules, not a single jurisdiction has followed suit; the majority have instead elected to adopt alternative conflicts approaches, primarily that of the Second Restatement of Conflict of Laws.

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