Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by 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.26: Connecting factor

Heinz-Peter Mansel

I. Concept and notion

A conflict rule determines which law is applicable for the resolution of legal issues arising in specific fact patterns. The term ‘connecting factor’ (or ‘reference point’; French: facteur de rattachement; German: Anknüpfungspunkt, Anknüpfungsmoment, Anknüpfungsgrund, Anknüpfungsmerkmal, Anknüfungsbegriff) describes the element of a conflict rule that connects a factual situation with the laws of a specific jurisdiction. A conflict rule refers to these laws by way of the connecting factor. The legal consequence of a conflict rule is the application of these laws.

The conflict rule itself specifies for which category of legal issues it determines the applicable law. Thus, it ascertains its own ‘scope of application’ (German: Anküpfungsgegenstand). For example, art 21 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) renders the law of the state in which the deceased had habitual residence at the time of death applicable to the succession as a whole (→Succession). The connecting factor is the habitual residence of the deceased person. The scope of application of art 21 Succession Regulation is ‘succession as a whole’. The process known as →‘classification’ is used in order to select the appropriate conflict rule. The object of classification is the legal issue at hand and the purpose of this process is to determine the conflict rule with the appropriate scope of application to the case at hand.

Different national conflict-of-laws systems often use different connecting factors for the same class of legal issues. A well-known example is the determination of the personal status of a natural person (→Personal status). Some jurisdictions use a person’s citizenship (→Nationality), others use a person’s domicile, p. 442and still others use a person’s habitual residence (→Domicile, habitual residence and establishment) as the connecting factor to determine the law applicable to questions of a person’s personal status. This can result in the application of different laws in a person’s personal status matters in different jurisdictions. Other connecting factors, however, are used the same way worldwide. For instance, in most national conflict-of-laws systems property law governing corporeal property is determined by reference to the location of the property (→Immovable property, →Property and proprietary rights, →Property and proprietary rights in vessels). This results in an application of the lex rei sitae throughout almost every legal system.

II. Purpose and function

The choice of a single connecting factor from the variety of options is a result of the legislator’s judgment and its methodological approach to the conflict of laws (→private international law, methods of). The chosen connecting factor serves an objective pursued by the legislator. Generally, the purpose is to determine the law most closely connected to the legal issue at hand (→Private International Law, foundations). In this case, the connecting factor is an indicator of the closest connection. This straightforward idea is expressed in art 8(1) Book 10 of the Dutch Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, available at <http://wetten.overheid.nl>, henceforth Dutch CC), which states that a connecting factor stands for a ‘close connection presumed in a legal rule’.

1. Separate connecting factor or comprehensive assessment

Different types of connecting factors are used.

a) Separate connecting factor and legal certainty

A conflicts norm can use one discrete, objective element – which is as clearly defined as possible – as a connecting factor. Vischers calls this a ‘single contact approach’ (Frank Vischer, ‘Connecting Factor’ in Ulrich Drobnig (ed), International Encyclopedia of Comparative Law, vol. III/1: Private International Law (Mohr Siebeck 2011) ch 4, para 61 (henceforth Vischer, ‘Connecting Factor’ in IECL, vol III)). For instance, art 16 Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391) renders the law of the state of the child’s habitual residence applicable as far as parental responsibility arising as a matter of law is concerned (→Guardianship, custody and parental responsibility). Such separate objective connecting factors try to determine the closest connection to a specific jurisdiction in ideal cases. Separate objective connecting factors are a stylistic trait of the earliest conflict-of-laws codifications, such as the introductory provisions of the Codice civile italiano of 2 April 1865. Today, many national conflict laws – among them some created after the year 2000, and international conventions – are still shaped by it. Legal certainty and clarity are placed in the foreground. The result of the connection should be predictable, and this predictability is achieved through an ideal connection which only uses one objective connecting factor. Flexibility and individual justice are of less concern.

Whether the use of a separate, objective connecting factor increases legal certainty and makes the applicable law more predictable depends on the properties of the element being used as the connecting factor. The notion ‘habitual residence’ can create a number of questions in many situations. The definition of habitual residence becomes debatable for infants, small children, boarding school students, prisoners and so on. The location of a person’s habitual residence may become difficult to establish if that person is highly mobile and resides in different countries. A person’s domicile can be difficult to determine as well, eg in cases of immigrants who maintain ties to their home state. In addition, for delicts resulting in pure economic loss, there is no consensus as to the place in which the damage occurs (art 4(1) →Rome II Regulation (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)).

b) Comprehensive assessment in a particular or general escape clause

In contrast to the type of rule mentioned in the preceding paragraph, a conflicts rule can also provide that the applicable law is to be determined following a comprehensive assessment of all of the relevant circumstances. The p. 443pursuit of predictable connection results and of legal certainty takes second place to individual justice (see Heinz-Peter Mansel, Personalstatut, Staatsangehörigkeit und Effektivität (CH Beck 1988) 178–91). For example, art 4(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 to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation) provides that the contract law of a country other than the one indicated in the other paragraphs is to be applied if it is obvious from all the circumstances of the case that the contract is manifestly more closely connected with the former. Other conflict rules contain presumptive examples that aid in the determination of the closest connection. For example, in German law, art 5(1) first sentence Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended, henceforth EGBGB) guides the selection of the relevant citizenship in cases of multiple citizenships; in such cases, the citizenship of the state with which the person is most closely connected is to be used. The closest connection is indicated by the habitual residence or the course of the person’s life. Article 17(1)(c) EU Commission Proposals for the Matrimonial Property Regulations (European Commission, ‘Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes’ COM(2011) 126 final) – at the final step of the connection ladder – requires that the place of the celebration of the wedding is to be taken into consideration when determining the law applicable to →matrimonial property.

Escape clauses require a comprehensive assessment. They allow the court to deviate from a separate, objective connection in particular concrete cases and apply a law that is more closely connected to the case at hand than the generally determined law. Examples of particular escape clauses in discrete areas of law include: arts 4(3) (contract), 5(3) (contracts of carriage), 7(2) third sentence (→Insurance contracts), 8(4) (individual employment contracts) Rome I Regulation; arts 10(4) (→Unjust enrichment), 11(4) (negotiurum gestio) Rome II Regulation; and art 22 Succession Regulation. Few statutes contain a general escape clause. Such a clause means the courts may deviate from the particular conflict rule in order to apply the law most closely connected with an individual case. Examples include: art 15 Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended, henceforth Swiss PILA), art 2 Slovenian Private International Law Act 1999 (Zakon o mednarodnem zasebnem pravu in postopku; Uradni list Republike Slovenije, No 56/1999 of 13 July 1999), art 3082 Code civil du Québec (Recueil des lois et des règlements du Québec (LQR), chap CCQ-1991) (see Kurt Siehr, Das Internationale Privatrecht der Schweiz (Schulthess 2002) 497), art 19 Belgian Code of Private International Law (Code de Droit International Privé, Loi du 16 juillet 2004 portant le Code de droit international privé, MB 27 July 2004, 57344, as amended, henceforth Belgian PILA), and art 8 Book 10 of the Dutch CC.

c) Comprehensive assessment as a means of subsidiary connection

Some legislators use a comprehensive assessment when the general connection fails. This is normal in cases of multiple citizenships (→Nationality). One example of this is art 5(1) second sentence EGBGB (see II.1.b)). Article 14(1) no 3 EGBGB uses the closest connection of the spouses with one state in cases where the regular connecting factors of nationality and habitual residence fail (for more on the so-called ‘Kegel’s ladder’ used in art 14(1), see →Kegel, Gerhard). A similar structure is applied by art 17 Commission Proposals for the Matrimonial Property Regulations.

d) Overall assessment as the primary means of achieving the connection: most significant relationship

The counter model to the idea of achieving a connection by means of separate objective connecting factors is offered by s 6 Restatement (Second) of Conflict of Laws (American Law Institute, Restatement of the Law, Second: Conflict of Laws 2d, St. Paul 1971; →Restatement (First and Second) of Conflict of Laws). Section 6 contains a number of relevant factors in order to determine the most significant relationship between a particular fact pattern and the laws of a jurisdiction. The goal is ‘to apply the law of the state that, with regard to the particular issue, has the most significant relationship with the parties and the dispute’ (Eugene F Scoles, Peter Hay, Patrick J Borchers p. 444and Symeon C Symeonides, Conflict of Laws (5th edn, West 2010) § 2.14). Such an approach does not determine the applicable law by way of a rule with a fixed reference point; rather, it uses an approach based on decision-leading guidelines (for more on this discussion in American law see Willis LM Reese, ‘Choice of Law: Rules or Approach’ (1972) 57 Cornell L.Rev. 315–34). According to s 188 in combination with s 6 Restatement (Second) of Conflict of Laws, the objectively applicable contract law is determined by the local law of the state which, with respect to the contract, has the most significant relationship to the transaction and the parties under the principles stated in s 6. The most significant relationship is determined through an overall assessment of all relevant interests, policy concerns and other circumstances. Points to be taken into account are: (i) the needs of the interstate and international systems, (ii) the relevant policies of the forum, (iii) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (iv) the protection of justified expectations, (v) the basic policies underlying the particular field of law, (vi) certainty, predictability and uniformity of result and (vii) ease in the determination and application of the law to be applied. While this method of connection is prevalent in US conflicts systems, it is virtually unknown in civil law systems where the predictability of connection has a higher priority. In English and other common law conflict systems ‘the task is not, as in the USA, to provide individual choice of law solutions for each case that arises, but in order to develop clear rules properly applicable to the generality of cases in the particular field’ (James Fawcett, Janeen Carruthers and Peter North, Cheshire, North & Fawcett’s Private International Law (14th edn, OUP 2008) 37). ‘Central to this idea of justice is the principle of proximity, which provides that a dispute should be resolved by the most proximate law: the legal system with the closest and most real connection to the dispute’ (Stephen GA Pitel and Nicholas S Rafferty, Conflict of Laws (Irwin Law 2010) 209).

The overall assessment method is occasionally used in international conventions which have a particular link to common law institutions. The Hague Trust Convention does not rely on separate objective connecting factors and requires an overall assessment. The Convention also applies in a number of civil law jurisdictions, such as →Italy, →Liechtenstein, →Luxembourg and →Switzerland. The structure of art 7 Hague Trust Convention (Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition, 1664 UNTS 311) is similar to that of s 6 Restatement (Second) Conflict of Laws. Pursuant to art 7 Hague Trust Convention, absent a →choice of law, the law of the state with which the trust is most closely connected applies. In ascertaining the law with which a →trust is most closely connected, art 7(2) Hague Trust Convention provides that reference shall be made in particular to (i) the place of administration of the trust designated by the settlor, (ii) the situs of the assets of the trust, (iii) the place of residence or business of the trustee, (iv) the objects of the trust and the places where they are to be fulfilled. A similar connection is used in civil law jurisdictions which, while not party to the Hague Trust Convention, have modelled their international trust law on the Convention, for example art 3107 Code civil du Québec. A more remote example can be found in arts 4(1), 3(1) (see II.3.).

2. Objective and subjective connection

Often, conflict rules allow for a subjective choice of law. Thus, the applicable law is determined by the will of the parties (→Party autonomy). This can be referred to as a ‘subjective connection’. The particular conflict rule determines who has the right to make a choice of law. This favours the person who has the right to make the subjective choice of law. A choice of law is often made via a common declaration by both parties (eg the contracting parties, pursuant to art 3(1) Rome I Regulation). If there is only one person with the right to choose, this is referred to as an ‘optional conflict rule’ (Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 56).

Conflict of laws has permitted a subjective choice of law more and more often in recent decades (Christian Kohler, ‘L’autonomie de la volonté en droit international privé: un principe universel entre libéralisme et étatisme’ (2013) 359 Rec. des Cours 285 ff). The Rome I and II Regulations, the Succession Regulation, and the European Commission Proposals for the Matrimonial Property Regulations all provide for a possibility to choose the applicable law. Many national laws have introduced choice of law in matters of name law, family law, the succession law or p. 445other personal matters. The concept is not unknown in international conventions, such as the Hague Maintenance Protocol 2007 (Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, [2009] OJ L 331/19; arts 7, 8). In international contract law, there is usually no limit to the number of permissible national laws that can be chosen. According to art 3(1) Rome I Regulation and art 14 Rome II Regulation, the choice of law is unrestricted. Any national law can be chosen, even one without connection to the factual situation. The limits in art 3(3) and (4) Rome I Regulation and art 14(2) and (3) Rome II Regulation concern cases with no connection to a foreign or third state. In such cases, the above-mentioned regulations do not apply.

In matters of family law, the laws of succession, and other personal matters, choice of law is limited. This is called a ‘limited choice of law’. The applicable law can only be chosen from a range of laws. The range is determined by using separate objective connecting factors. For instance, the person owing maintenance and the person to whom maintenance is owed can determine the applicable law according to art 8 Hague Maintenance Protocol 2007 and, in doing so, deviate from the regular connection in art 7 Hague Maintenance Protocol 2007. However, they can only choose the law of a state of either the nationality or of the habitual residence of one of the two (former) spouses, or the law of the state whose law is applicable to the general effects of →marriage or divorce (→Divorce and personal separation). According to art 5(1) →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), the spouses can choose the laws applicable to their divorce from among their home state law, the law of their habitual residence or the lex fori. The inclusion of the lex fori among the possible laws renders divorce easier. Limited choice of law exists in the private international law of obligations as well. According to art 7 Rome II Regulation, the person seeking compensation for environmental damage may choose the law of the country in which the event giving rise to the damage occurred and, in doing so, deviate from the law determined under art 4(1) Rome II Regulation.

3. Direct and indirect connection

In those cases the legislator provides for the application of his own laws as long as his courts have jurisdiction (lex fori) – as is often the case in common law legal systems. Therefore, the elements establishing jurisdiction are indirect connecting factors which determine the applicable law. This results in the application of the lex fori in foro proprio (→lex fori). Article 4(1) Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1), for example, has adopted such an approach. According to this provision, the law applicable to insolvency (→Insolvency, applicable law) is that of the Member State where proceedings are opened. The connecting factor that establishes jurisdiction is thus indirectly adopted for the determination of the law applicable to insolvency. According to art 3 Insolvency Regulation, courts of the Member State where the centre of a debtor’s main interests is situated have jurisdiction with regard to the opening of insolvency proceedings. This connecting factor is rather broad and not very clearly defined. In applying the norm, one has to perform an overall assessment of the closest connection of the debtor’s assets. Article 3 Insolvency Regulation thus resembles to a certain extent a search for the most significant relationship (see II.1.d)), but is limited to that of assets.

4. Multiplicity of connecting factors

The legislator can use more than one connecting factor in order to determine the applicable law (Harald Baum, Alternativanknüpfungen (Mohr Siebeck 1985); Günther Beitzke, ‘Alternative Anknüpfungen’ in Andreas Heldrich, Dieter Henrich and Hans Jürgen Sonnenberger (eds), Konflikt und Ordnung, Festschrift für Murad Ferid zum 70. Geburtstag (CH Beck 1978) 39–60; Hans G Ficker, ‘Verknüpfungen von Anknüpfungen?’ in Rolf Dietz and Heinz Hübner (eds), Festschrift für Hans Carl Nipperdey zum 70. Geburtstag, vol 1 (CH Beck 1965) 297–322). The relationship between the connecting factors can vary.

a) Alternative connections

(1) Substantive law criterion 

Alternative connections use a number of connecting factors and thus may render a number of laws applicable. However, only one law can p. 446be applied; thus the conflict rule is to determine which one that is. The norm can favour a certain substantive result. This means that the law which yields the desired result is to be applied. Their purpose is to favour a certain outcome. Such alternative connections, which use a ‘substantive result run-off’ (Klaus Schurig, Kollisionsnorm und Sachrecht (Duncker & Humblot 1981) 206), allow the legislator to favour certain policy goals. The selection between the different alternatives is done by referring to an objective criterion. A classic example for this is the determination of the applicable laws for questions of form, which is governed by art 11(1) Rome I Regulation (corresponding conflict rules can be found in many national conflict laws). The norm provides for the application of either the laws of the place where the contract was entered into (lex loci contractus) or the laws governing the substantive contract itself (lex causae). The legal policy goal is to favour the formal validity of contracts. Similar connections can be found with regard to the formal validity of marriage contracts in art 20(1) European Commission Proposals for the Matrimonial Property Regulations and with regard to written testamentary dispositions in art 27 Succession Regulation and art 1 Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175).

A conflict rule can allow the affected party to choose between potentially applicable laws. This is a limited choice of law (see above II.2.).

(2) General most favourable clauses 

There are some alternative connections (eg formal validity) which do not explicitly name the favoured outcome, but which require the application of the law which is most favourable for an individual. Baum calls these connections ‘open-ended connections’ (offene Tatbestände, Harald Baum, Alternativanknüpfungen (Mohr Siebeck 1985) 63 ff). Article 10, § 1 Introductory Act to the Rules of the Brazilian Law (Statutory Decree No 4,657 of 4 September 1942) provides an example. According to this provision, when a deceased foreigner’s property is situated in Brazil, the succession to this property by the deceased’s spouse or Brazilian children (or their representative) is governed by Brazilian law unless the personal law of the deceased is more favourable to them. If the only difference is one of ratio of entitlement to the patrimony, the more favourable law can be easily determined. If, however, both the share and liability are higher, the determination of the more favourable law can become more difficult (more examples can be found in Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 65). Such open-ended alternative connections thus raise concerns from the standpoints of both legal certainty and predictability.

(3) Alternative connection with subjective choice (limited choice of law) 

A conflict rule may permit the concerned party or parties to make a →choice of law. This is an alternative connection with a subjective choice element, or a ‘limited choice of law’ (see II.2.). Alternative connections with subjective choice elements are used if the legislator wants to favour a certain substantive law result (see II.2. for examples). In this case, their purpose is one of substantive law (Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 64). This results in an option of the person choosing the applicable law to decide whether this substantive law purpose is achieved or not.

Alternative connections with subjective choice elements are also used when the legislator is unsure which of the alternatives symbolizes the closest connection between a factual scenario and a jurisdiction best. This is why there is occasionally a choice of law between the laws of the state of a person’s residence and the laws of the state of a person’s nationality. The purpose of such a connection is of genuine conflicts-of-law nature, not one of substantive law. These connections are used to solve difficulties of the connection process (→Nationality, IV.3.).

The person making the choice can take into account which laws produce the substantive law result they desire. However, they are free to be motivated by other considerations – for instance, which laws are more familiar to them or which law is easier to ascertain or easier to apply by the courts.

b) Subsidiary connection

For subsidiary connections, the conflict rule contains a number of connecting factors which are ranked: the one connecting factor is subsidiary to the other. This type of connection is called ‘graded references’ (Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 62). The connecting factors are typically brought into order by the legislator according to his view of which connecting factor typifies the closest p. 447connection between case and jurisdiction. This decision can vary between different legislators and in the course of time. There are two reasons for the use of subsidiary connections.

The first is to provide alternatives when the primary connection fails because its requirements are not met. One noteworthy example is the structure of the so-called Kegel’s ladder (→Kegel, Gerhard), which is used in art 14(1) German EGBGB and art 17 EU Commission Proposals for the Matrimonial Property Regulations. The latter text has reversed the ranking of nationality and common habitual residence recommended by Kegel (→Nationality, IV.4.). Where a choice of law is absent, the laws of the spouses’ first common habitual residence after marriage govern matrimonial property. If this fails, the laws of their common nationality apply. If they do not share a common nationality, the law of the state with the closest connection comes into play (see I.1.c)). A subsidiary connection using nationality and habitual residence as connecting factors is most often used in cases where the applicable law has to be determined for personal matters affecting two people – most often spouses (→matrimonial property law, divorce (→Divorce and personal separation), general effects of →marriage, etc).

The second reason is to advance a certain result in substantive law. If the primarily applicable law does not yield a certain result (eg maintenance obligation, ability to marry), the subsidiarily applicable law applies (see Heinz-Peter Mansel, Personalstatut, Staatsangehörigkeit und Effektivität (CH Beck 1988) 151). For example, art 4(2) Hague Maintenance Protocol 2007 contains a subsidiary connection: ‘If the creditor is unable, by virtue of the law referred to in art 3 Hague Maintenance Protocol 2007 (law of the state of the habitual residence of the creditor), to obtain maintenance from the debtor, the law of the forum shall apply.’ As well, national laws contain subsidiary connections with a substantive law purpose. If the primarily applicable law determined by art 13(1) German EGBGB does not permit a fiancé to marry, German law applies regarding the permission to marry for this fiancé in certain circumstances under the rule in art 13(2) EGBGB. The legislator does this to protect the freedom to marry, particularly against laws of a home state which contain religiously motivated prohibitions against marriage that go against the ordre public of the forum state. Equally, some states have adopted subsidiary connections for →same-sex marriages where at least one fiancé lacks the capacity (→Capacity and emancipation) to marry their same-sex partner under the laws of their home jurisdiction. Subsidiary connections with a substantive law purpose are regularly used in order to avoid having to apply the ordre public of the forum state.

c) Cumulative connection

Cumulative connections use two – rarely more – different connecting factors. The laws determined by all relevant cumulative connections apply simultaneously to the same legal issue. Their purpose is usually one of substantive law: they set a higher threshold for achieving a certain legal consequence. In this regard, they are the opposite of the alternative connection, which favours a certain result. Often, cumulative connections are used if third-party interests are at stake. For instance, in cases of child →adoption, there is a cumulative connection regarding the child’s and the parents’ consent to the adoption. According to art 22(2) German EGBGB, the adoption of a child is governed by the law of the country of which the adopter is a national at the time of the adoption. However, under art 23 EGBGB, the necessity and the granting of consent to an adoption of the child and of any person related to the child under the applicable family law is additionally governed by the law of the country of which the child is a national. A similar connection technique is applied in arts 67, 68 Belgian PILA and makes adoption more difficult since the conditions of two jurisdictions have to be met. This protects the child’s interests as well as the parents’, since adoption against their will is not possible. Article 15 Rome I Regulation contains another example. In cases of multiple liability, the law governing the debtor’s obligation towards the creditor also governs the debtor’s right to claim recourse from the other debtors. But the other debtors may additionally rely on the defences they had against the creditor as far as they are allowed by the law governing their obligations towards the creditor. The cumulative application of two laws for questions regarding the other debtors’ defences renders recourse more difficult. This protects the other debtors. In a similar vein, art 6 Hague Maintenance Protocol 2007 protects the maintenance debtor: in the case of some special →maintenance obligations, the debtor may contest a claim from the p. 448creditor on the ground that there is no such obligation under both the law of the state of the debtor’s habitual residence and the law of the state of the parties’ common nationality, if there is one. Article 10(2) Rome I Regulation also contains a cumulative connection: if one party of a contract invokes that he or she did not consent to the contract, that party may rely on the law of the country in which he or she has habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his or her conduct in accordance with the regular applicable law.

d) Distributive connections

One particular type of cumulative connection is the ‘distributive connection’ (also referred to in German doctrine as the ‘coupled connection’, gekoppelte Anknüpfung). Distributive connections render different laws applicable with regard to separate conditions of a legal event. These connections are rare and are not as restrictive as cumulative connections. Conflict rules dealing with the conclusion of marriage occasionally contain distributive connections. For example regarding marriage, the conditions for the conclusion of marriage are to be taken from the laws of the country of which each engaged person is a national. A result similar to that of distributive connections is achieved in international contract law because a separate connection with the applicable law is made for the legal capacity of each party. This is achieved by excluding legal capacity from the scope of the law applicable to the contract (see eg art 1(2)(a),(f) Rome I Regulation; see also Jan Kropholler, Internationales Privatrecht (6th edn, Mohr Siebeck 2006) § 20 V).

e) Accessory connections

In an ‘accessory connection’, the conflict rule provides that the laws governing one issue are determined by reference to the law determined by another conflict rule for another issue. For example, art 17(1) German EGBGB provides that the property effects of a divorce are to be governed by reference to the law governing the divorce; this law is determined by the Rome III Regulation. By this, the inherent relationship in substantive law between a divorce and its consequences is preserved in conflict of laws. Articles 10, 11 Rome II Regulation provide accessory connections with the laws governing contracts. According to art 10(1) Rome II Regulation, a non-contractual obligation arising out of unjust enrichment in connection with a contract is governed by the law governing that contract, if that contract is closely connected to that unjust enrichment. Article 128 Swiss PILA determines the law governing enrichment similarly. Another example is art 4(3) Rome II Regulation. For questions of delict the laws of the jurisdiction which governs contractual matters apply as well if there is a close connection between delict and contract.

Accessory connections are very common nowadays. They are used to apply the same laws on distinct but connected issues. This is a reasonable practice because it ensures that a connection existing in substantive law is preserved in conflict of laws. This avoids the disadvantages of a →dépeçage (Kurt Siehr, Das Internationale Privatrecht der Schweiz (Schulthess 2002) 501) and minimizes the necessity of a substantive law →Adjustment/Adaptation (Anpassung). Furthermore, the application of laws from the same jurisdiction in different areas of the law avoids problems of classification, or at least makes them easier to handle. If, for instance, both contract and tort liability are governed by the same law, the classification of certain legal notions such as →expert liability (including third-party liability) as either related to contract or tort is no longer decisive. Article 44 German EGBGB has a similar ratio: proprietary claims arising from adverse impacts that proceed from a plot of land are subjected to the law governing corresponding delict claims under the Rome II Regulation. This means that both proprietary and delict claims regarding nuisance claims relating to nuisances caused by immovable property (→Property and proprietary rights) are governed by the laws of the same jurisdiction. The often-difficult task of classifying claims as either ‘contractual’ or ‘tortious’ can thus be avoided. Therefore, accessory applications facilitate the application of law.

f) Combined connections

A ‘combined connection’ (see Sevold Braga, ‘Kodifikationsgrundsätze des internationalen Privatrechts’ (1958) 23 RabelsZ 421, 436) entails a grouping of contacts (Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 63). This method is more common in American conflict of laws than in continental European conflict of laws. Willis Reese introduced the method when working as a rapporteur for the p. 449Hague Products Liability Convention (Willis LM Reese, ‘Explanatory Report on the 1973 Hague Products Liability Convention’ in Acts and Documents of the Twelfth Session (1972), vol. III, Products Liability (The Hague 1974) 251, 260).

A ‘combined connection’ contains a primary connecting factor. This primary connecting factor only becomes relevant if additional connecting factors point to the same laws. This avoids random connections and also distinguishes combined connections from alternative, subsidiary or cumulative connections. The latter classes do not require that the different connecting factors point to the same laws. The Hague Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191) and art 5 Rome II Regulation use such combined connections. Article 4 and art 5 Hague Products Liability Convention provide that either the place of injury or the habitual residence of the person directly suffering damage is to be used as primary connecting factor. The thus-determined laws only apply if one out of three (art 4) or one out of two (art 5) connecting factors point to the same law. Article 5 Rome II Regulation follows the same approach, but uses as the primary connecting factor the place where the product was marketed. Article 6(1) Rome I Regulation contains another combined connection: the law at the place of the consumer’s habitual residence only applies if a further connecting factor points to it. Article 6(1)(a),(b) Rome I Regulation lists the pursuit of commercial or professional activities in the country where the consumer has his or her habitual residence, or the direction of such activities to that country.

5. Typical connecting factors

Here there is only room for a few of the most common connecting factors (see for an older list Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 15ff). A →personal status is determined by reference to →nationality (lex patriae), habitual residence or domicile (lex domicilii; →Domicile, habitual residence and establishment). Purely personal connecting factors are connecting factors that make no reference to location; instead, they refer only to the person’s properties, such as nationality or, in cases of an interpersonal conflict of laws (see →Nationality, VI.2.), religion (→Interreligious law). The habitual residence of a person is an important connecting factor in international contractual (arts 4(1), (2), 5, 6, 7(2) second sentence, 7(3), 11(2)–(4) Rome I Regulation) and extra-contractual obligations (arts 4(1), (2), 5(1) first sentence, lit a, 5(1) second sentence, 10(2), 11(2), 12(2)(b) Rome II Regulation). Reference to the laws at the location of property is very common in international property law (lex rei sitae, see I.). The location of a certain act is important in a number of rules: art 13(3) German EGBGB (place of wedding ceremony), art 11(1) second alternative and (2), (3) Rome I Regulation (place of legal act), art 8(2) Rome I Regulation (place of labour), art 124(1) Swiss PILA (place of conclusion of contract), art 7 Rome II Regulation (place of the environmentally harmful event), art 9 Rome II Regulation (place of the industrial action), art 10(3) Rome II Regulation (place of the unjust enrichment) and art 11(3) Rome II Regulation (place of the act of →negotiorumgestio).

Article 7(1) Rome I Regulation uses the place of the insured risk, while art 9(1) Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements ([2002] OJ L 168/43) uses the place where the accounts are maintained. The place of registration determines the following: the applicable company law pursuant to the ‘incorporation theory’ (→Companies); the applicable property law (→Property and proprietary rights) on means of transport (art 45 German EGBGB); the applicable property law in cases of property located in space (art 1207 Civil Code of the Russian Federation (as amended by Federal Law No 260-FZ on 30 September 2013)); and the law applicable to registered partnerships (art 17b(1) first sentence German EGBGB). According to art 4(1) Rome II Regulation, the applicable delict law is the law of the state of the place in which the damage occurs (art 4(1), 5(1) first sentence, lit c Rome II Regulation). This is not always easy to determine (see II.1.a)). Questions of unfair competition are governed by the law of the country in which competitive relations or the collective interests of consumers are or are likely to be affected (art 6(1) Rome II Regulation), while questions of the law governing the restriction of competition are governed by the law of the country in which the market is located (art 6(3) Rome II Regulation). The law of the country for which protection is claimed or the law that is applicable on a non-contractual obligation arising from an infringement p. 450of an intellectual property right is the applicable intellectual property law (art 8(1) Rome II Regulation). Often, jurisdiction is used as a connecting factor and the →lexfori applies (see II.3.).

6. Time

Every connecting factor refers to a point in time. This is the point in time which is to be used when evaluating whether the conditions of the connecting factor are met. The point in time is most often specifically expressed in the conflict rules. Some facts or events are fixed points in time or space, for example the place of a celebration of a wedding, the place of a person’s birth, the place of a contract’s conclusion, etc. Other facts underlying the connecting factor can change over time, for example a person’s habitual residence, domicile (→Domicile, habitual residence and establishment) or →nationality. In such cases, the conflict rule has to indicate which point in time is relevant for determining the applicable law. Whether the principle of mutability or the principle of permanence prevails also needs to be decided. This decision refers to the question as to whether the former law continues to apply, the new law applies retroactively, or the new law only applies after the change of the connecting factors (conflit mobile, see Institut de Droit international, Resolution of 28 August 1981 ‘The Problem of Choice of Law in Private International Law’ (1982) 59 Annuaire de l’Institut de Droit international 246–51 (Part 11, Rapporteur: Ronald H Graveson), henceforth Institut de Droit international, Resolution of 28 August 1981; Ronald H Graveson, ‘The Problem of Choice of Time in Private International Law’ (1979) 58:I Annuaire de l’Institut de Droit international 1–96; Vischer, ‘Connecting Factor’ in IECL, vol III, ch 4, para 76 ff). This problem is particularly acute in matrimonial property law (→Matrimonial property) and in international property law (→Property and proprietary rights). A change in applicable law can lead to a loss of acquired rights (→Vested rights theory). The general basic rule of inter-temporal conflict laws is as follows: ‘Particularly in continuous legal situations of personal status, property or obligation, personal status established and rights acquired before the happening of a relevant change of law should be protected so far as possible’ (Institut de Droit international, Resolution of 28 August 1981, I 6).

7. Jurisdiction

Often, the same connecting factors used in conflict rules are used for the determination of adjudicatory jurisdiction as well. Nationality, for example, still plays a role – albeit a diminishing one – in continental European procedural law (→Nationality, VII.). Habitual residence is also often used to establish jurisdiction and to determine the applicable law. For example, art 4 Succession Regulation establishes jurisdiction as being at the place of the last habitual residence of the deceased. The same place determines the law applicable to succession under art 21 Succession Regulation. The lex fori in foro proprio effect that goes along with this is intentional: it provides an easier and more efficient application of the law. The same effect often occurs because the application of the lex fori is ordered by the conflict of laws (see II.3.).

However, in legal systems shaped by continental European law, the parallel structure of connecting factors that regards applicable law on the one hand and jurisdiction on the other is the exception, not the rule. For example, in matters relating to a contract, the jurisdiction of the courts at the place of the performance of the obligation in question is of particular importance (art 7 no 1(a) 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)), but it plays no role in the determination of the law applicable to the contract. The more specific the conflicts provision, the less common the occurrence of connecting factors with parallel structures. This is because the selection of connecting factors follows different principles depending on whether the question at hand is one of jurisdiction or one of applicable law. While the determination of applicable law follows the closest connection principle (ie it answers the question ‘Which legal system has the closest connection to the connecting factor?’), rules on jurisdiction have two functions: to enable access to courts on the one hand (Jan Kropholler, Internationales Privatrecht (6th edn, Mohr Siebeck 2006) § 7 III) and to avoid exorbitant competence on the other.

III. p. 451Historical development and modern trends

The traditional, multilateral conflict of laws as defined by Savigny (→Savigny, Carl Friedrich von) and Mancini (→Mancini, Pasquale Stanislao) contained few conflict rules with wide scopes of application. It was defined by a small number of objective connecting factors, thereby guaranteeing predictable and certain connections. The American conflicts revolution (→(American) Conflict of laws revolution) criticized this method of using isolated connecting factors (see I.1.) because it could lead to the application of a law which had no connection to the particular case (see →Nationality, VI.1. for an example) and because it determined the applicable law independently from the result of the application of the substantive law to the particular case. Furthermore (so the argument went), these conflict rules were not able take the interests of the public and of the common welfare into account (→(American) Conflict of laws revolution; for a critique of the American conflicts revolution see →Kegel, Gerhard; II.4.).

This criticism was considered by conflicts codifications passed in recent decades and by European regulations. An attempt was made to combine legal certainty and predictability of connection with more flexibility and solutions appropriate for particular situations. Nevertheless, one cannot speak of a ‘European conflicts revolution’ (for an opposing view see Ralf Michaels, ‘The New European Choice-of-Law Revolution’ (2008) 82 Tul.L.Rev. 1607–44), merely of an evolution (see Peter Hay, ‘European Conflicts Law after the American “Revolution” – Comparative Notes’, Essay prepared for the session of the Conflicts Section annual meeting of the Association of American Law Schools on 3 January (2015); Symeon C Symeonides, ‘The American Revolution and the European Evolution p. 452in Choice of Law: Reciprocal Lessons’ (2008) 82 Tul.L.Rev. 1741–800). Modern conflict laws contain rules, which are in turn more specialized with a narrower scope. For example, in addition to the lex loc delicti rule in art 4, the Rome II Regulation contains six further rules for particular delicts (arts 5–9, 12 Rome II Regulation). This has led to a multiplication of connecting factors; many new connecting factors have been developed. Escape clauses (see I.1.b)) have become more common and permit flexible connections and case-by-case connection justice without generally neglecting predictability and legal certainty of connection. Recital (14) of the Rome II Regulation clarifies this point. Initially, the European Parliament had proposed a more or less wholesale adoption of the items listed in § 6 Restatement (see I.1.d)) as indicators for the escape clause (European Parliament legislative resolution of 6 July 2005, P6_TA(2005)0284, [2006] IPRax 414–18). In the end, this legislative resolution did not prevail.

Modern private international law codifications and EU Regulations contain more choice-of-law options and alternative or subsidiary connections with substantive law run-offs or (limited) choices of law (see II.2., 4.a), b)). This allows the substantive law result to be taken into account during the connection process.

Literature

  • Harald Baum, Alternativanknüpfungen (Mohr Siebeck 1985);

  • Günther Beitzke, ‘Alternative Anknüpfungen’ in Andreas Heldrich, Dieter Henrich and Hans Jürgen Sonnenberger (eds), Konflikt und Ordnung, Festschrift für Murad Ferid zum 70. Geburtstag (CH Beck 1978) 39;

  • Sevold Braga, ‘Kodifikationsgrundsätze des internationalen Privatrechts’ (1958) 23 RabelsZ 421;

  • Hans G Ficker, ‘Verknüpfungen von Anknüpfungen?’ in Rolf Dietz and Heinz Hübner (eds), Festschrift für Hans Carl Nipperdey zum 70. Geburtstag, vol 1 (CH Beck 1965) 297;

  • Ronald H Graveson, ‘The Problem of Choice of Time in Private International Law’ (1979) 58:I Annuaire de l’Institut de Droit international 1;

  • Peter Hay, ‘European Conflicts Law after the American “Revolution” – Comparative Notes’, Essay prepared for the session of the Conflicts Section annual meeting of the Association of American Law Schools on 3 January (2015);

  • Christian Kohler, ‘L’autonomie de la volonté en droit international privé: un principe universel entre libéralisme et étatisme’ (2013) 359 Rec. des Cours 285;

  • Alexander Lüderitz, ‘Anknüpfung im Parteiinteresse’ in Alexander Lüderitz and Jochen Schröder (eds), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts. Bewahrung oder Wende? Festschrift für Gerhard Kegel (Metzner 1977) 31;

  • Ralf Michaels, ‘The New European Choice-of-Law Revolution’ (2008) 82 Tul.L.Rev. 1607;

  • Willis LM Reese, ‘Choice of Law: Rules or Approach’ (1972) 57 Cornell L.Rev. 315;

  • Willis LM Reese, ‘Explanatory Report on the 1973 Hague Products Liability Convention’ in Acts and Documents of the Twelfth Session (1972), vol. III, Products Liability (The Hague 1974) 251;

  • Klaus Schurig, Kollisionsnorm und Sachrecht (Duncker & Humblot 1981);

  • Symeon C Symeonides, ‘The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons’ (2008) 82 Tul.L.Rev. 1741;

  • Frank Vischer, ‘Connecting Factor’ in Ulrich Drobnig (ed), International Encyclopedia of Comparative Law, vol. III/1: Private International Law (Mohr Siebeck 2011) ch 4.