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PRIVATE INTERNATIONAL LAW. UNIT 20. Preview. Private international law / Public international law / Supranational law Private international law / Conflict of laws : foreign element „ Country ” in private international law Jurisdiction Choice of law
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PRIVATE INTERNATIONAL LAW UNIT 20
Preview • Privateinternationallaw/Publicinternationallaw/Supranationallaw • Privateinternationallaw/Conflictoflaws: foreign element • „Country” inprivateinternationallaw • Jurisdiction • Choiceoflaw • Recognitionandenforcementofforeignjudgments • International regulation • Connectingfactors
I Answer the following questions. • 1. Consider a dispute between an English and a French litigant over a breach of contract concluded in Italy to be performed in Spain. • 2. In your view, which legal problems would arise in such a situation? • 3. Which legal issues would have to be solved?
Definition and terms • The part of national law called the conflict of laws, or private international law, establishes rules for dealing with cases involving a foreign element (i.e. contact with some system of foreign law). • The foreign elements may be events which have taken place in a foreign country or countries, or they may be the foreign domicile,residence, or place of business of the parties.
Examples • the case may involve a contract between an English and a Croatian person, made by correspondence, to be performed partly in England and partly in Croatia or in a third country. • the English court may be hearing a tort case in which an English defendant's conduct in Paris caused injury to an Italian visitor there. • Another example is a case in which the English court has to decide on the validity of a marriage celebrated in Italy between an English woman and a French man. • Anycase involving a foreign element raises potential conflict of laws issues.
Conflictoflaws/Privateinternationallaw • The area of private law involving a foreign element is referred to as the conflict of laws or private international law. • Conflict of laws is concerned with cases in which the parties or other relevant issues are connected with more than one country. • Different countries have different laws and there can be a 'conflict' in a sense that more than one country might have jurisdiction and more than one law can be applied. • Conflict of laws rules indicate which court should have jurisdiction and which of the 'conflicting' laws should be applied.
Privateinternationallaw • As to the term 'private international law', the subject is 'international' because of the facts of the case, or the parties to it, are connected with another country or countries. • It is 'private' as opposed to 'public' international law because it is not concerned with relations between states, but with disputes between persons arising out of their marriages, contracts, wills, torts and other private law matters.
The meaning of a ‘country’ in private international law • For the purposes of the conflict of laws, a 'country' is any territorial unit having its own separate system of law, whether or not it constitutes an independent state politically. • In this respect, England, Scotland and Northern Ireland are separate countries because they have separate legal systems. On the other hand, Wales is not a country, because its system of law is the same as that of England. The United Kingdom cannot be the relevant country for the purposes of those branches of private law for which there is no such thing as the law of the United Kingdom.
The meaning of a ‘country’ in private international law • Each of the states in the United States, each Canadian province and Australian state is a separate country. • One needs to know, for instance, whether a tort was committed in Ontario, not whether it was committed in Canada. • To be sure, it does not follow that a country, for conflict of laws purposes, cannot coincide with a sovereign independent state. • They usually coincide because many states have a uniform legal system throughout their territory.
Issues to be decided in conflict of law cases • 1. Whichcourthasjurisdiction to decidethecase? • 2. Whichlawshouldbeapplied? • 3. How willforeignjudgmentberecognizedandenforced?
Jurisdiction. • The first point which has to be decided is whether a national court has jurisdiction to deal with the case.
Choice of law • If a national court does exercise jurisdiction, the next question is whether in deciding a case it will apply the rules of national law or those of a foreign country with which the case has connections. • The rules that determine which law the court applies in a case involving foreign elements are called choice of law rules. • Once the relevant choice-of-law rule has been established, this will point the court to a factor that connects the dispute to the legal system of a particular country. • This is called a 'connecting factor'. • .
Connectingfactors • Some connecting factors point to the law of the place where an event or transaction took place, such as the place of celebration of marriage. • Other connecting factors point to a law that is connected to a person that is involved in the dispute, such as the law of their domicile or habitual residence. • Questions of title to immovable property are governed by the law of the country in which the property is situated
Recognition and enforcement of foreign judgments • The questionis whether the judgments of foreign courts can be given effect in another country. • Suppose a claimant, having obtained a judgment against an English defendant in a New York court for damages for breach of contract, wishes to have the judgment satisfied out of the defendant's assets in England. Will the New York judgment be enforced, or will the claimant have to bring new proceedings in the English court to establish the claim?
Recognition and enforcement of foreign judgments • Alternatively, the question may be the recognition of a foreign divorce. • A husband and wife living in England are Muslims; the husband pays a visit to a Muslim country of which he is a citizen where he divorces his wife under Islamic law. Is the divorce effective in England? • Answering these questions is the third and final task of private international law.
International regulation • Originally, all three 'conflict of law' questions were determined by domestic law, but today the area is subject to increasing international and European regulation. • In some areas of law, there are international treaties governing conflict of law issues. • .
International regulation • These treaties can work by unifying the internal laws of the signatory states on a given topic, for instance the Montreal Convention of Unification of Certain Rules for International Carriage by Air (1999). • Alternatively an international treaty may implement a co-operative procedure which requires mutual recognition of foreign rulings. • These treaties do not interfere with substantive domestic law. For example, arbitration proceedings that take place in England are governed by the Arbitration Act 1996
International regulation • By signing an international treaty, a signatory state makes a commitment to adhere to the principles of the treaty. • Where other states make the same commitment, this ensures a level of consistency in how cross-border issues are treated.
TheHagueConference on PrivateInternationalLaw • formed in 1893 to "work for the progressive unification of the rules of private international law". • pursued this goal by creating and assisting in the implementation ofmultilateralconventionspromoting theharmonisationofconflictoflawprinciples • about 30 international conventions focusing on the rules of conflict of laws • 74 state members
Rome Convention (1998) • 1. The rules of this Convention shall apply to contractual obligations in any situation involving a choice between the laws of different countries.
Rome Convention (1998) • Freedom of choice • 1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract.
Rome Convention (1998) • Article 4 • Applicable law in the absence of choice • 1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected.
International instruments • TheViennaConvention on theInternational Sale ofGoods (1988) • Rome Convention on thetheLaw (1980) Applicable to ContractualObligations • UNIDROIT (The International Institute for the Unification of Private Law): 63 MemberStates
A glossary of connecting factors • Lex loci contractus: the law of the place where the contract was made. • Lex loci solutionis: the law of the place where the contract is to be performed. • Lex loci celebrationis: the law of the place where the marriage was celebrated. • Lex loci delicti: the law of the place where the tort was committed.
Glossaryofconnectingfactors • Lex domicilii: the law of the place where a person is domiciled. • Lex patriae: the law of the nationality. • Lex situs: the law of the place where the property is situated. • Lex fori: the law of the court in which the case is heard.
Summary • Conflictoflaws (privateinternationallaw): privatelawcontaining a foreign element • Choiceoflaws • Choiceof forum • Recognitionandenforcementofforeignjudgements
Answerthe following questions • Which terms are used for the area of law dealing with cases involving a foreign element? • How can we define private international law? • What has to be established in cases involving a conflict of laws? • What is a “foreign element” in private international law? • What is the meaning of a “country” in private international law? • What are choice of law rules? • What is a “connecting factor” in conflict of laws? • How were conflict of law questions originally determined? • What is the situation today?
claims concurrent defendant federal jurisdiction jurylaw plaintiff’s procedural sue • When multiple courts have ________________ jurisdiction over a___________claims, theplaintiff may forum shop, or choose the court that will treat his or her __________ most favourably. In the United States, forum shopping most typically occurs when state and _______courts have concurrent jurisdiction over a claim. State and federal courts have different __________rules and, in some cases, also use different substantive law. Plaintiffs can use this to their advantage. For example, a plaintiff suing a large corporate__________might _________ in state court, predicting that a local _________would be more sympathetic than a federaljury. Alternatively, a plaintiff might prefer one ___________due to its procedural rules or due to its choice of ___________rules.
Case Analysis: Hodas v. Morin • In your opinion, if the choice of law provision has been included in the contract by the parties, can the parties’ choice of law be contested by the courts? • Can you think of some reasons why the parties’ choice of law can be called into question? • Have you heard of gestational carrier contracts? • What do they involve? • Are they legal in all jurisdictions? • How would you explain the term “forum shopping” in the context of conflict of laws? • What do you think of the possibilities of forum shopping related to gestational carrier contracts?
RICHARD I. HODAS & another vs. KIMBERLY MORIN & others.442 Mass. 544 • In an equity action brought by the plaintiffs, genetic parents who contracted with a gestational carrier to bear a child at a Massachusetts hospital, for a declaration of paternity and maternity and for a prebirth order establishing the plaintiffs' legal parentage, the presiding Probate and Family court judge should have resolved the plaintiffs' complaintby applying Massachusetts law - the parties' choice of law as specified in their agreement - even though none of the individual parties resided in Massachusetts, where Massachusetts had a substantial relationship to the transaction, anchored in the parties' negotiated agreement for the birth to occur at a Massachusetts hospital and for a Massachusetts birth certificate and bolstered by the gestational carrier's receipt of prenatal care at a Massachusetts hospital in anticipation of delivery at the hospital, and where the significant contacts in this case were so widely dispersed that determination of the state of applicable law without regard to the parties' choice would present real difficulties. (…)
CIVIL ACTION commenced in the Berkshire Division of the Probate and Family Court Department on May 25, 2004. • After dismissal of the case, the matter was reported to the Appeals Court by Marie E. Lyons, J. An injunction pending appeal in the Appeals Court was ordered by David A. Mills, J. • The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. (…)
Facts • 1. The plaintiffs, who are married, reside in Connecticut. • The gestational carrier and her husband, both nominal defendants, reside in New York. • The hospital, the other nominal defendant, is a licensed Massachusetts hospital whose statutory duties include, among others, reporting information concerning births at the hospital to the city or town clerk where the birth occurred.
Facts • In April, 2003, the plaintiffs, the gestational carrier, and the gestational carrier's husband entered into a fifteen-page "Contract Between a Genetic Father, a Genetic Mother, a Gestational Carrier and Her Husband" (gestational carrier agreement). • The parties represented that each had been advised by counsel of their choice prior to entering into the agreement. • Among other things, the gestational carrier agreement provided that any child resulting from the agreement would be delivered at the hospital, if at all possible and that in any event the gestational carrier would "take all reasonable steps to give birth to any child carried pursuant to this Agreement at a Hospital located in the State of Massachusetts." It is undisputed that the parties chose Massachusetts as the site of the birth in part to facilitate obtaining a prebirth order. (…)
Pre-birthorder • Prebirth parentage orders are often sought by parties to surrogacy agreements to formalize the intent of the parties to the agreement before the child is born. • Such orders declare the intended parents to be the legal parents of the child.
Jurisdiction • In her report, the Probate Court judge stated that "[t]he primary question presented is whether, under the circumstances of this case, this Court has jurisdiction to grant the relief requested?" • The Probate Court's jurisdiction over this case, however, is clear. • First, as a general matter, the Probate Court has subject matter jurisdiction in questions of law and equity concerning parentage. (…) • Second, personal jurisdiction is also proper. The Probate Court, of course, has personal jurisdiction over the hospital, a Massachusetts corporation. (…)
Choice of law • The driving issue in this case, rather, concerns choice of law. • The interested couples come from different States; the chosen hospital from yet a third. • None of the individual parties resides in the Commonwealth*, yet they have contracted that Massachusetts law govern the gestational carrier agreement and, by extension, the petition for judgments of parentage and for a prebirth order. • We must consider whether to respect their choice • *Commonwealth: Kentucky,Massachusetts, Pennsylvania, andVirginia
Choiceoflaw • The gestational carrier agreement implicates the policies of multiple States in important questions of individual safety, health, and general welfare. Complicating matters is the fact that the laws of Connecticut, New York, and Massachusetts, the three States that potentially could govern the agreement, are not in accord
Publicpolicies • . In Connecticut, where the genetic parents reside, gestational carrier agreements are not expressly prohibited by, and perhaps may be contemplated by, the recently amended statute governing the issuance of birth certificates. (…). • The gestational carrier resides in New York, a State that has expressed a strong public policy against all gestational carrier agreements. (…) ("Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable"). • Massachusetts, as we have noted, recognizes gestational carrier agreements in some circumstances. (…)"[W]here the significant contacts are so widely dispersed that determination of the state of the applicable law without regard to the parties' choice would present real difficulties," the Restatement instructs that the parties' choice of law will be honored. (…).
Conclusion • For the foregoing reasons, on July 1, 2004, we ordered that the judgment of the Probate Court dismissing the plaintiffs' complaint be vacated, and theinjunction pending appeal ordered by the single justice of the Appeals Court be dissolved. • Weremandedthe case to the Probate and Family Court where a judgment was to enter declaring the plaintiffs to be the legal parents of the unborn child and ordering the hospital, Berkshire Health Systems, Inc., through its reporters, on the birth of the child, to place the plaintiffs' names on the record of birth created pursuant to G. L. c. 46, s.s. 1, 3, and 3A, listing the plaintiffs as the father and mother, respectively, of the child.
Answerthefollowingquestions: • What is the structure of the judgment? Which elements are included? • What is the main issue under consideration? • Who are the plaintiffs? • Who are the nominal defendants? • Where do the plaintiffs and defendants reside? • What was the parties’ choice of law in the gestational carrier contract? • Which state laws were involved in this case?
Answerthefollowing: • Which courts were involved? • Which basic conflict of laws questions had to be decided? • What was the decision of the judge in the Probate and Family Court? • Was the decision upheld by the higher courts? • How do the three state jurisdictions approach gestational carrier contracts? • What is the relationship between the parties’ choice of laws and public policy? • What was the decision of the Supreme Judicial Court?
