Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter C.10: Choice of law

Jürgen Basedow

By the choice of law we understand the selection of the law that governs a legal relation with a cross-border dimension, this including the law to be applied in adjudicating a dispute arising from that relation. Choice of law is one of the methods of private international law (→ Private International Law, methods of). It has a dual meaning. It sometimes refers to a choice made by private parties, eg by contracting parties, by a testator, by a husband and wife, on the law that is to govern the relationship at issue. This variant connects to ideas of individual freedom and party autonomy and will be discussed in the entry → Party autonomy. In the second and wider sense, choice of law refers to any determination of the applicable law, whether put into effect by the private parties involved or by a court drawing from case-law or legislation. This entry deals with choice of law in this second regard and will consider a number of theoretical implications of choice of law as such, in particular the justification for the application of foreign law (→ Foreign law, application and ascertainment), below I., and some of its consequences, below II., the structure of the conflict rule, below III., as well as some → connecting factors and particular features of connections, below IV.

I. Choice and the application of foreign law

The very term ‘choice’ implies the possibility that a court does not by necessity apply its own law, but may also opt for the application of a foreign law. As the adjudicatory branch of a state’s government, courts are part of the institutional machinery of that state which is entrusted with the enforcement of that state’s sovereign will. How can this mission be reconciled with the application of a foreign law which incorporates the – potentially divergent – sovereign will of a foreign state? It is certainly true that the application of foreign law is a token of tolerance and civilization (Kurt Siehr, Internationales Privatrecht (CF Müller 2001) 412, citing W Goldschmidt). But a theorist, beyond being civilized, also needs a consistent explanation. Two lines of arguments have been pursued in this respect.

The first dates back to the 17th century, when the European model of statehood gradually changed from one of feudalism to territorialism. p. 336While the Emperor of the Holy Roman Empire had been conceived of as the ultimate source of legitimacy of state power and law in the centuries before, the Peace Treaties of Münster and Osnabrück of 1648 recognized for the first time the existence of states which were not only de facto independent, but also de jure sovereign powers separate from the Holy Roman Empire. The concept of the sovereign state became the foundation of the so-called Westphalian model which has dominated international law over several centuries. It also has had a strong impact on the ideas governing private international law. In the Netherlands, which were granted independence by the Treaties of 1648, Ulricus Huber (→ Huber, Ulrik) built a whole system of conflict rules on the idea of absolute territorial powers. Nevertheless, the application of foreign law was not completely excluded, but a matter of → comity, or courtesy, to be granted by the convenience and tacit consent of different peoples. Huber’s doctrine of comity became very influential in England and Scotland and received the powerful support of Joseph Story in the USA (Joseph Story, Commentaries on the Conflict of Laws (Hilliard, Gray & Co 1834, reprint edn Jürgen Christoph Gödan, Keip 2007) 30–32, 37). It is rooted in a publicist conception of the conflict of laws, as Story put it: ‘This branch of public law may be fitly denominated private international law . . .’ (Joseph Story, Commentaries on the Conflict of Laws, 9). It postulates the application of foreign law primarily as a matter between states arising from international law or the law of nations, not of internal law. It is for that reason that ‘the comity of nations . . . is, and ever must be, uncertain’ (Joseph Story, Commentaries on the Conflict of Laws, 29).

Contrary to Huber’s and Story’s publicist approach to private international law, Savigny did not take the sovereign power of the forum state and its law as the starting point. He rather focused on the legal relation existing between the private actors. In his view, that legal relation has to be assigned – as per the conflict rules of the forum – to the most appropriate law. This approach constitutes the reverse of the previous so-called statutist doctrine and has been characterized as a ‘Copernican turn’ in private international law (Paul Heinrich Neuhaus, Die Grundbegriffe des Internationalen Privatrechts (2nd edn, Mohr Siebeck 1976) 94). Where a conflict rule refers to the law of a foreign jurisdiction, its application is not discretionary, but binding, due, as Savigny put it, to the development of the law; most appropriate is the law of the jurisdiction where the legal relation has its seat (Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8 (Veit & Co 1849) 28), ie to which it is most proximate (Paul Lagarde, ‘Le principe de proximité dans le droit international privé contemporain’ (1986) 196 Rec. des Cours 9–237). Basically, domestic law and foreign law are considered as being on equal footing.

The two explanations of the application of foreign law (→ Foreign law, application and ascertainment) are not that far from each other. Savigny does not exclude the concept of comity, but only its interpretation as a discretionary admittance of foreign law; he also acknowledges the existence of an international community of independent states that requires respect for each other’s laws (Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8, 28–29). On the other side, Story, while insisting on the court’s sole duty to apply its own law, contemplates the possibility that this law may command respect for a foreign nation’s laws (Joseph Story, Commentaries on the Conflict of Laws, 36–37). What emerges at the middle of the 19th century is the gradual split of international law into two disciplines, public international law arising from the conduct of states in their mutual relations, and private international law as a matter of internal lawmaking of each independent state. The ‘nationalization’ of private international law was furthered by its codification, first in the preleggi of the Italian Civil Code of 1864, later in Germany by the Introductory Act to the German Civil Code of 1896 (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 18 August 1896, RGBl. 604, henceforth EGBGB). While such acts highlighted the divergences between national conflict rules, they also made clear that the application of foreign law was a matter to be decided by national lawmakers. Even from a nationalist perspective, choice of law became a reality.

II. The choice of foreign law and its consequences

As long as the choice of a foreign law is discretionary and guided by considerations of public utility, all kinds of considerations may guide the courts when exercising their discretion. They may for example refuse to give effect to foreign law where its ascertainment is too difficult or p. 337leaves too much uncertainty, where the foreign law is incompatible with basic notions of justice prevailing in the state of the proceedings or where it turns out that the foreign court would not apply its own law, but would refer the case to the law of another country, perhaps the law of the state where the case is pending. As soon as a court is bound, whether by legislation or by precedent, to apply foreign law, the considerations mentioned above have to be taken account of by specific rules which may perhaps provide for exceptions from, or qualifications of, the duty to apply foreign law.

As a very minimum, binding choice-of-law rules need to be supplemented by a rule reserving the protection of the forum’s → public policy (ordre public). The French Civil Code of 1804 (Code Civil of 21 March 1804) had already made such a reservation (see art 6), but since no provision of the Code designated a foreign law as applicable, it was at least doubtful whether art 6 had any significance in private international law. This was different in the system outlined by Savigny, who explicitly envisaged the application of foreign law. He consequently needed a safety valve and excluded the application of foreign law where laws of a strictly positive, mandatory nature are affected or where the foreign law provides for legal institutions which are completely unknown to the forum (Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8, 33).

A second set of indispensable rules flowing from the basic willingness to apply foreign law concerns the ascertainment of the foreign law. Does its application depend on a motion filed by one of the parties, or is it up to the court to apply the foreign law ex officio? What are the means available for determining its content? It is surprising that most codifications of private international law do not touch upon these issues, which are thereby left to the courts, see → foreign law, application and ascertainment.

Once the application of foreign law – and thereby choice of law – is generally approved, the conditions and modalities of such application have to be established. This leads to the typical structure of the conflict rule.

III. The structure of the conflict rule

1. Survey

A conflict rule, just like any other legal rule, is composed of elements which contain the conditions for its regulatory programme as well as other elements which define the legal consequences. But both the conditions and the consequences of conflict rules differ from those laid down in other legal norms.

While the conditions set forth in a legal rule in general refer to factual circumstances such as the agreement of the parties, the death of a person, a collision of vessels or the birth of a child, the conditions laid down in a conflict rule relate to legal concepts such as → succession, contracts, → marriage or liability in tort. Further legal rules are needed to clarify the meaning of these concepts. Likewise, the consequences triggered by conflict rules differ from those mandated by other legal rules. The latter prescribe the outcome of a dispute in substance and are therefore called substantive rules. They tell us, for example, whether a marriage is valid or not, at what point in time interest on a debt begins to accrue and at what rate, whether children have a compulsory share in the estate of their parents etc. By contrast, conflict rules only tell us which law decides on the validity of the marriage, on the interest obligation and on succession; conflict rules may therefore be designated as rules of referral (Verweisungsnormen). The conditions laid down in those rules designate the object of a referral while the legal consequences are to be found in the referral of a legal relation to the law of a specific jurisdiction.

Conflict rules are unilateral or bilateral. They are designated as unilateral where they delineate solely the scope of the provisions of their own legal system without touching upon the application of foreign law. Examples are provided in the US by the Foreign Trade Antitrust Improvement Act of 1982 (96 Stat. 1246, 15 U.S.C. § 6a) or, in the EU, by a number of consumer protection instruments, such as art 3 of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding etc (Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, [2004] OJ L 46/1). Another and rarer type of unilateral conflict rules deals exclusively with the effects that foreign legal precepts may be given in the domestic forum. For an example see art 9(3) Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable p. 338to contractual obligations (Rome I), [2008] OJ L 177/6; → Rome Convention and Rome I Regulation (contractual obligations)) on the effect of foreign → overriding mandatory provisions. Conflict rules are bilateral where they refer the decision of the dispute, depending on the facts of the case, to either the law of the forum or to the law of a foreign jurisdiction. Codes of private international law usually contain bilateral conflict rules. Both unilateral and bilateral conflict rules employ certain connecting factors which establish links between the case under consideration and the law of a particular jurisdiction.

2. The object of referral

a) The bundling of legal issues

Conflict rules may relate to very specific issues, such as the manner of performance of a contract (art 12(2) Rome I Regulation), the form of a will (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175) or the material validity of a choice-of-forum clause (art 25(1) Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; → Brussels I (Convention and Regulation))). It would even be conceivable that each substantive rule be accompanied by a conflict rule determining its scope and the scope of corresponding provisions of foreign origin. However, the emerging mass of conflict rules would not only give rise to confusion, it would also not accord with the limited experience gathered so far with cross-border legal relations. This experience was highly confined initially. Its growth over time resulted in a progressive differentiation of conflict rules. The development started with conflict rules that circumscribed the object of referral in very general terms: statuta personalia and statuta realia. As time went by, further categories were added: statuta mixta. Starting with some rudimentary provisions in the French Civil Code of 1804, the number of conflict rules contained in statutes has increased incrementally, while the object of referral of those conflict rules has progressively been shrinking and becoming more specific. For example, the first codified conflict rules on the law of obligations dealt with the whole discipline of contractual and non-contractual obligatory relations in two or three provisions (see for example arts 19 to 21 of the Egyptian Civil Code of 1948 (Law No 131 of 1948)), while the aggregate of the provisions now laid down in the Rome I and Rome II (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) Regulations dealing with the same matters totals more than 60 articles.

The regulatory technique employed in this context is that of bundling: conflict rules do not assign the regulation of specific issues to a national law, nor do they deal with the scope of individual provisions. Instead, they use broader systematic categories such as contracts, capacity (→ Capacity and emancipation), form, effects of marriage, descent or succession in order to subject all issues and legal provisions falling under the respective category to the law of a single jurisdiction that is determined by certain connecting factors which establish a link between a given case and a jurisdiction. This bundling technique is flexible. As more experience is being gathered and the need for differentiation becomes apparent, sub-categories may be excluded from the main category in order to subject them to a law that is established in a different and more appropriate way. Thus, the broader category of effects of marriage has over time split into personal effects, property effects and maintenance (→ Property and proprietary rights). Another example is provided by the lex situs governing the property in movables: as we are gaining additional experience with cross-border transactions in this field we are witnessing certain sub-categories gradually being excluded from the category of property in movables, eg transport vehicles, mobile equipment or securities held in movables all of these being subject to divergent conflict rules.

b) Implications: classification, dépeçage, incidental questions

The basic willingness to apply foreign law and the bundling technique employed by conflict rules generate a number of ensuing problems. They are dealt with in separate entries of the Encyclopedia but should at least be outlined here.

The categories employed by conflict rules do not have the same purview in all legal systems involved in a case. For example, the category of procedure has traditionally encompassed issues p. 339of → prescription in common law countries, whereas prescription is regarded as pertaining to the substantive claim in continental jurisdictions. The ban on mutual gifts which some jurisdictions impose on spouses may be considered as an effect of marriage, but also as a contractual issue. Agreements between shareholders on proxy-voting may be classified as a matter of company law, but alternatively as giving rise to → contractual obligations. The legal concepts used for the categories which form the object of referral of conflict rules thus need interpretation. The interpretive process raises a number of difficult issues which concern in particular the legal system relevant for this interpretation; they are discussed in the entry → Classification (characterization).

A further implication of the progressive elaboration of categories and sub-categories is the need of accumulating different laws as being applicable to various aspects of one and the same case. While the online contract concluded between a 16-year-old youth and a supplier of digital content is a matter of contract law, most jurisdictions regard the capacity of the young person as a matter relating to → personal status (→ Capacity and emancipation); formal requirements as to that agreement would again be subject to a different category concerning the form of legal acts. We can thus observe a dissociation of an integral fact situation into several statuta with the possible consequence that different national laws might govern the various aspects of the case. This inevitably follows from the growing differentiation of private international law, which in turn is due to specific policies governing, in our example, the emergence of separate conflict rules for contracts, capacity (→ Capacity and emancipation) and form. In addition to this inescapable segmentation, a further split is accepted where agreed upon by the parties involved in a transaction. Respecting the principle of → party autonomy, art 3(1) 2nd sentence Rome I Regulation and some other conflict rules permit the parties to ‘select the law applicable to the whole or to part only of the contract’ (emphasis added). Thus, in the turnkey business a general contractor agreement may be subjected, by the parties, to the law of the construction site in respect of the building activities and to a different national law as regards the design of the project. This practice is further explained in the entry → Dépeçage.

The legal issues covered by different systematic categories and statuta may be submitted to the court alongside each other as main questions in the same case. It is, however, not uncommon that the main question is one whose resolution depends on first addressing a matter as a preliminary question, eg where the family name of a married spouse forms the main question and this is, in turn, dependent on the validity of the marriage. This will confront the court with a number of further difficult questions concerning the conflict rules governing the incidental question: will the court have recourse to its own conflict rules for assessing the validity of the marriage or should it apply the conflict rules of the law governing the main question, ie the conflict rules of the law determining the name of the married spouse? The related questions are discussed under the heading of → Incidental (preliminary) question.

3. The operation of referral: criteria for the link with a specific jurisdiction

A legal relation that is connected with the laws of several jurisdictions should be subjected not to ‘pure’ national law which is meant to deal with internal cases, but to substantive rules which take into account and are adjusted to the cross-border nature of the fact pattern in question. Such substantive rules for cross-border cases exist in numerous international conventions on uniform private law, → uniform substantive law and private international law. Outside the field of the private law conventions, a certain materialization of private international law is currently being furthered by the growing impact of human rights (→ Human rights and Private International Law). All in all, however, such substantive provisions for cross-border cases are rare. In many situations, recourse to ‘pure’ national law is an inescapable albeit only second best solution. Conflict rules are designed to establish the link between the legal relation having cross-border dimension and the substantive law of a single jurisdiction. Once this link is established and the legal relation is subjected to the governing law, the cross-border legal relation is treated like an internal legal relation of that jurisdiction. That ‘nationalization’ is the main consequence and result intended by a conflict rule.

When establishing the link between the legal relation and the jurisdiction, the court could make use of various criteria: it might compare the substantive solutions provided by the legal systems involved in a case and finally give effect p. 340to those provisions which it considers to be more appropriate or in line with the general development of the law. The → better law approach has been advocated by some writers in the USA and also in Germany. But it is conditional upon a thorough comparative investigation which is not always feasible. While such enquiry may be achievable in a monolinguistic environment such as US interstate conflicts, it is a different matter entirely when international relations are at issue; although perhaps possible in scholarly circles, courts in any nation state will generally be ill-equipped for so grand an undertaking. Therefore, the → better law approach has had limited success.

A second criterion that has been advocated is an ascertainment of the policies pursued by the conflicting substantive rules in question. As far as the provisions of the → lex fori are concerned, such policy investigation has always played an important role in assessing the overriding mandatory character of certain legal rules (→ overriding mandatory provisions) or the content of the → public policy (ordre public) of the forum. While this enquiry into policies serves as an exception to the basic choice-of-law rules, the governmental interest analysis (→ Interest and policy analysis in Private International Law) espoused by many writers and courts in the USA after the Second World War employed policy considerations already at the preceding stage of determining the primary connection of a case with the law of a given jurisdiction. Moreover, these writers claimed that a court should take into consideration not only the policies underlying its own law, but also the policies pursued by a foreign law involved in the case; the stronger and more important of these policies and the corresponding law should prevail. These views were at the core of the → (American) Conflict of laws revolution. It has been criticized for the legal uncertainty it produces and has had only very few adherents outside the USA.

The third criterion employed for the referral of a case to the law of a given jurisdiction is closeness or proximity. By this token, the conflict rule has the effect of localizing a legal relation within a jurisdiction. Although at first sight it appears to focus on a local connection exclusively, proximity is not necessarily confined to this aspect. This was already clearly spelt out by Savigny, who referred to the ‘nature’ of a legal relation which would determine its localization (Friedrich Carl von Savigny, System des heutigen römischen Rechts, vol 8, 28). It may be illustrated by the example of the cross-border distribution contract: the dispute as to whether the supplier’s law or the distributor’s law should prevail is not rooted in different perceptions of local connections, but in a different assessment of the substantive significance of the contributions made by both parties. While some believe that the conception and maintenance of the distribution network by the supplier is essential, others believe that the service provided by the individual distributor is more important. In any event, the localization technique employing the criteria of closeness and proximity is nowadays the predominant method of connecting a legal relation with a given jurisdiction in many areas of private international law and in most jurisdictions. It has the obvious inconvenience that distance by itself is not a meaningful connection for either the normative expectations of the parties or the intentions maintained by lawmakers when legislating an issue. Distance has to be combined with a value judgment on the significance of certain aspects of a legal relation and on the weight accorded to some interests involved as compared with others, or, returning to the distribution example: we must decide whether the supplier’s or the distributor’s contribution is to be regarded as distinctive for the contract. Once that decision has been taken, distance or proximity as expressed by certain connecting factors becomes a manageable criterion providing legal certainty. That is perhaps the main reason for the success of this approach.

4. The scope of the referral

The designation of a foreign law by a conflict rule may have various meanings. It may include or exclude the rules of private international law of the foreign legal order. In the former case the conflict rule of the forum may give rise to a → renvoi, which leads to the application of either the lex fori or the law of a third state depending on the conflict rule of the foreign law. Article 34 of the European Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; → Rome IV Regulation) provides an example for admission of renvoi while other EU p. 341regulations simply exclude renvoi altogether; see eg art 20 Rome I Regulation. In the latter case the applicable law will consist of the substantive rules of the law designated by the conflict rules of the forum and, in some cases, of some intra-state conflict rules of the foreign jurisdiction (→ Interregional/Interstate law).

As indicated by its name, private international law refers to conflicts between the laws of nation states, and it designates the law of a nation state. But not all nation states have a uniform law for all areas. In many states and in particular in countries having a federal structure such as the → USA, → Mexico or → Spain, the law differs, at least in some areas, as between the territorial units. Where the conflict rule of the forum designates the law of such a country without identifying the applicable regional law, the court will, as a first step, have to find out which of the various regional laws of the foreign nation applies; this may depend on a specific → interregional/interstate law of the foreign lex causae which the court is bound to enforce under its own conflict rule, see for example art 14 of the → Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10). In the countries of the Middle East, eg in → Egypt, → Israel or → Iran, the law of personal status, including family law and succession, is often determined by the religion of the persons involved. Here again, the law designated by the conflict rule of the forum state does not provide the solution of the pending case. Rather, it has to be supplemented by an additional conflict rule which will often be provided by the foreign law for such interpersonal or interreligious conflicts, and the court may be bound to apply that → interreligious law; see for example art 15 Rome III Regulation.

Where a foreign law is applicable, all of the provisions that would be applied by a court of the foreign country to the facts of the case have to be applied by the domestic court as well, irrespective of their systematic place in the foreign legal system. This is explicitly enunciated by art 13 of the Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended) but is also widely recognized. Assuming, for example, that foreign law is applicable to succession, this would not exclude the application of a rule on the inheritance rights of a widow for the sole reason that the underlying provision, in the foreign legal system, forms part of the law of → matrimonial property. The reference effected by the conflict rule of the forum is a holistic one. It aims at a decision to be made by the forum in conformity with a hypothetical decision of a court in the country of origin of the applicable law. This might even include the application of foreign public law where that law is not subject to specific conflict rules. However, where the foreign law applicable considers a certain issue as separate and subject to different conflict rules, the domestic court will have to enquire whether that issue has to be treated as an incidental legal question possibly governed by a different law. Where, for example, the foreign parents of a victim of a road accident claim damages for the loss of their source of maintenance, the court will have to investigate whether the lex loci delicti commissi grants such compensation to third parties and whether the claim is awarded to any person who has lost a de facto supplier of maintenance or only to those who had a legal claim of maintenance against the victim of the accident. In the latter case of an → incidental (preliminary) question, the court would have to determine the applicable law separately from the lex loci delicti commissi.

IV. Connecting factors and types of connections

The conflict rule establishes the link between the object of referral and a specific jurisdiction by the use of a connecting factor. Subjective and objective connecting factors are distinguished. In the case of a subjective connection it is the will of the parties involved or – in the case of a testamentary disposition – the will of an individual which establishes that link → party autonomy. The objective connections employ either a factual or a legal link between the facts characterizing the legal relation in question and a specific jurisdiction.

1. The connection technique

Factual links include, for example, the place of acting (lex loci actus) or the place of harm (lex loci damni) in international tort law → torts; the location of movable or immovable property (lex situs) in respect of the assessment of in rem rights → property and proprietary rights; the place of contracting (lex loci celebrationis) as p. 342regards the form of legal acts, → formal requirements and validity; the place of litigation (→ lex fori) in respect of procedure, → proceedings, law governing; the habitual residence employed in many areas of personal status and contract law; and the market affected as regards international competition law, → competition, unfair, and → competition, restriction of. While these connecting factors are exclusively factual at first sight, a gradual juridification can be observed in some cases, eg as regards the concept of habitual residence. Legal links used in various countries are citizenship or → nationality as well as domicile (→ Domicile, habitual residence and establishment) in a number of fields of personal status; the → flag in maritime law; and the registration in the law of intellectual property (→ intellectual property, applicable law; → intellectual property, jurisdiction), corporate law (→ Companies) and the law of same-sex relationships (→ Same-sex marriages). These connecting factors are ‘legal’ because it depends on provisions of law whether a person is a citizen of a state, whether a sojourn in a country qualifies as domicile, whether a banner used by a vessel is a flag and whether the inscription of a joint venture in a book can be regarded as a registration.

A conflict rule may refer to a connecting factor that cannot be ascertained in the pending case; the result is a referral into emptiness. For example, the nationality principle has to cope with situations involving stateless persons. And where the law governing divorce is determined by the spouses’ habitual residence in a – single – state (see in the EU art 8(a) Rome III Regulation), a different solution must be provided in cases where they are not or no longer habitually resident in the same country at the time the proceedings are initiated. In a similar vein, the reference to the law of the habitual residence of the debtor of the performance that is characteristic of a contract (see in the EU art 4(2) Rome I Regulation) is unhelpful where the contract lacks a characteristic obligation, eg an agreement between an author and a publisher on the writing, printing and marketing of a book. What is needed in such cases is a subsidiary or residual connection of the legal relation in question and, where that secondary connection is likewise lacking, a tertiary connection. Article 8 Rome III Regulation thus provides for a cascade of four tiers: the spouses’ habitual residence in the same state; their last habitual residence in one and the same state; the common nationality; and finally the forum. According to the legislature’s view, each tier designates a connection of less intensity as compared with the previous one.

2. Multiple connections serving substantive policies

While cascade connections express links of decreasing intensity between a legal relation and a jurisdiction, there are other cases of multiple connections which owe their existence rather to the legislature’s intention of favouring certain substantive results or of reducing or preventing their emergence. A desired substantive outcome is favoured by alternative connections. Thus, the formal validity of testamentary dispositions is favoured where it is sufficient for the form of a will to comply with the law of the testator’s nationality, the law of his/her domicile or habitual residence, the law of the place where the will was made or, as far as immovables are concerned, the law of the country of location (see art 1 of the Hague Testamentary Dispositions Convention of 1961). The court need not assess the formal validity of the will under all the laws mentioned above; it suffices that one of the laws validates the will. The court may thus confine its analysis to that law which it believes is most likely to lead to formal validity.

A technique that equally favours a preferred result, but is more difficult to implement, is found where one combines a subsidiary or residual connection (see above IV.1.) with an analysis of the substantive outcome flowing from the application of the law that is primarily designated. Where, for example, the law governing maintenance claims of children towards their parents under art 3 of the Hague Maintenance Protocol of 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19) does not grant a right to maintenance, the → lex fori shall apply. Here, the shift from the primary connection (the creditor’s habitual residence) to the secondary connection (the forum) is not triggered by the absence of a habitual residence of the creditor, but rather by the substantive result generated by that law. The method requires, at a first stage, a complete analysis of the law of maintenance in the country of the creditor’s habitual residence; an escape to a different legal system – the lex fori – is only permitted where that analysis does p. 343not yield any maintenance claims. It is on this point that the present method differs from that of alternative connection.

A conflict rule may also require a court to simultaneously give effect to the laws of two jurisdictions in regard to the same matter. Thus, the common law has traditionally subjected → damages claims arising from tort to the rule of double actionability under both the lex loci delicti commissi and English law (Chaplin v Boys, [1971] AC 356, 381, 389 and 391); the rule has been superseded by legislation but is still in force in respect of damages claims for defamation. The cumulative application has the effect of confining the rights arising under each of the laws involved to the maximum permitted by the other law. To the extent that in cases of cumulative application one of the laws involved is the law of the forum, the effects of this method amount to a specific public policy reservation: where the → lex fori does not allow a certain claim, that prohibition is also implemented in situations of cumulative application. The situation is analogous when a claim is exclusively based on a – foreign – law but is not allowed to exceed what could have been claimed under the lex fori. Such a rule is, for example, laid down in art 17b(1) and (4) EGBGB in Germany in respect of the rights arising from life partnerships in same-sex relationships registered abroad; while such rights flow from the foreign law of the country of registration, German law puts an upper limit on their enforcement in Germany.

In some cases a conflict rule is designed not to preserve domestic standards but to establish a unanimity in the assessment of a legal relation among all countries involved and to avoid so-called limping legal relations. Where that objective is pursued, the conflict rule may also order the cumulative application of two foreign laws. Thus, the substantive validity of marriage is assessed in many continental jurisdictions in respect of each spouse in accordance with his or her national law (see eg Germany: art 13 EGBGB; the Netherlands: art 10–28(b) Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992); Poland: art 48 of the Polish Private International Law Act (Official Journal 2011 No 80, pos 432)). Where two foreigners of different nationality want to celebrate marriage, the domestic registrar therefore has to apply two foreign marriage laws.


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