COL Robles Notes

7/25/2019 COL Robles Notes

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Private international law

The area of law that resolves disputes containing a foreign element namely, some link to

a jurisdiction or country other than the one, the forum, in which legal proceedings arecontemplated or have been instituted

Country in this context refers to a territory that is subject to one body of law

Conflict of laws

A contrariety or opposition in the laws of states or countries in cases where the r ights of the

parties, from their relations to each other or to the subject matter in dispute, are liable to beaffected by the laws of both jurisdictions

As a term of art, it also includes deciding which law is to have superiority in such cases

It also includes many cases where there is no opposition between two systems of law, but

where the uestion is how much force may be allowed to a foreign law with reference towhich an act has been done, either directly or by legal implication, in the absence of anydomestic law exclusively applicable to the case

Canons:

The laws of every state affect and bind directly all property, real or personal, situated within

its territory, all contracts and acts done and all persons residing within its jurisdiction, andare supreme within its own limits by virtue of its sovereignty

o Ambassadors and other public ministers, while in the state to which they are

sent, and members of an army marching through or stationed in a friendly state,are not subject to this rule

!ossessing exclusive authority, with the above ualification, a state may regulate the

manner and circumstances under which property, whether real or personal, in possession

or in action, within it, shall be held, transmitted, or transferred, by sale, barter or beuest, orrecovered or enforced" the condition, capacity, and state of all persons within it" the validityof contracts and other acts done there" the resulting rights and duties growing out of thesecontracts and acts" and the remedies and modes of administering justice in all cases

#hatever force and obligation the laws of the country have in another depends upon the

laws and municipal regulations of the latter" that is to say, upon its own properjurisprudence and polity, and upon its own express or tacit consent

The power of determining whether, or how far, or with what modification, or upon what

conditions, the laws of one state or any rights dependent upon them shall be recogni$ed inanother, is a legislative one

o The comity involved is a comity of the states, and not of the courts, and the

judiciary must be guided in deciding the uestion by the principle and policyadopted by the legislative

#hen a statute or the unwritten or common law of the country forbids the recognition of the

foreign law, the latter is of no force whatevero #hen both are silent, then the uestion arises, which of the conflicting laws is to

have effecto %ach sovereignty must determine for itself whether it will enforce a law

It is a principle universally recogni$ed that the revenue laws of one country have no force in

another

The statutes of one state giving a right of action to enforce a penalty have no force in

another

&ights of action arising under foreign bankrupt, insolvent, or assignment laws are not

recogni$ed by a state when prejudicial to the interests of its own citi$ens

A remedy special to a particular foreign state is not, by any principle of comity, enforceable

elsewhere and must be applied restrictively

'enerally, force and effect will be given by any state to foreign laws in cases where from

the transactions of the parties they are applicable, unless they affect injuriously her ownciti$ens, violate her express enactments, or are contra bonos mores

In general, the mode of conveying, encumbering, transmitting, devising and controlling real

estate is governed by the law of the place of situation of the property

o !erhaps an exception may exist in the case of mortgages the law governing the

mortgage, as such, tis the law of situs of the land which the mortgagor covers"but the debt is governed by the law of the domicil of the party to whom it is due,no matter where the property be situated

(ills of exchange and promissory notes are to be governed, as to validity and interpretation,

by the law of the place of making, as are other contractso The residence of the drawee of a bill of exchange, and the place of making a

promissory note where no other place of payment is specified, is the locuscontractus

A statute of limitations of a foreign state, providing that an action on a note shall be brought

within a certain time after the cause of action accrues, bars the debt itself if not broughtwithin the time limited, and may be pleaded in bar of an action brought on the note inanother state

Chattel mortgages valid and duly registered under the laws of the state in which the

property is situated at the time of the mortgage, will be held valid in another state to whichthe property is removed, although the regulations there are different, and it will be enforcedin the state to which the property has been removed, although it would have been invalid ifmade in that state

)uestions of priority of liens and other claims are, in general, to be determined by the lex

rei sitae even in regard to personal property

The scope of a marriage settlement made abroad is to be determined by the lex loci

contractus, where not repugnant to the lex rei sitae

In an action brought in one state for injuries done in another, the statutes and decisions of

the courts of the latter state must fix the liability

The validity of an assignment of documents, such as policies of insurance or negotiable

instruments is determined by the law of the place where the assignment is made

An assignment of a movable which gives a good title according to the law of the country

where it is situated is recogni$ed as valid everywhere, whatever the domicil of the partiesmay be

%xecutors and administrators, in the absence of a specific statute authori$ing it, have no

power to sue or be sued by virtue of a foreign appointment as such

'uardians have no power over the property, whether real or personal, of their wards, by

virtue of a foreign appointment" they must have the sanction of the appropriate local tribunal

*udgments and decrees of foreign courts relating to immovable property within their

jurisdiction are held binding everywhereo The rule is the same with regard to movables actually within their jurisdiction

Admiralty proceedings in rem are held conclusive everywhere if the court had a rightful

jurisdiction founded on actual possession of the subject matter

+oluntary assignments of personal property, valid where made, will transfer property

everywhere ischarges by the lex loci contractus are valid everywhere


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Notes:

The criterion by which to ascertain whether a particular inuiry relates to the substance of

the contract or the remedy merely is said to be-o .upposed the legislature of the locus contractus to enact the law of the forum,

making it applicable to the existing contract If the result is that the obligation of the contract is either increased or

impaired thereby, then the point to which the law of the forum relates ispart of the obligation or substance of the contract and is not merely amatter of remedylex loci will control /not lex fori0

If, on the other hand, the result is that the obligation of the contract is

not at all affected, being neither increased nor diminished, then theinuiry relates to a matter of remedy only, and the fori should govern

#here the action was brought in .tate 1 upon a contract made in .tate 23 to convey land

situated in .tate 1, it was held that the measure of damages for the breach of contract waspart of the obligation of the contract to be determined by the laws of .tate 23, not a merematter of remedy to be controlled by the other lex fori /.tate 10

Lex fori

The law of the country to the tribunal of which appeal is made

The local of territorial law of the country to which a court, wherein an action is brought, or

other legal proceeding is taken, belongs

Notes:

The forms of remedies, modes of procedure, and execution of judgments are regulated

solely and exclusively by the laws of the place where the action is instituted

The lex fori is to decide who are proper parties to a suit

The lex fori governs as to the nature, extent, and character of the remedy

A cause of action arising in one state, under the common law as there understood, may be

enforced in another state where it would not constitute a cause of action, if the variance inthese laws does not amount to a fundamental difference of policy

The lex fori decides as to the deprivation of remedy in that jurisdiction

#here a debt is discharged by the law of the place of payment, such discharge will amount

to a discharge everywhereo 4nless such discharge is held by courts of another jurisdiction to contravene

natural justiceo It must be a discharge from the debt, and not an exemption from the effect of

particular means of enforcing the remedy

.tatutes of limitation affect the remedy only, and hence the lex fori will be the governing law

If a statute in force in the place where the cause of action arose extinguishes the obligation,

and does not merely bar the remedy, no action can be maintained in another jurisdictionafter it has taken effect

The right of set5off is to be determined by the lex fori

o 6iens, implied hypothecations, and priorities of claims, generally are matters of

remedy, but only, it would seem, where the property affected is within thejurisdiction of the courts of the forum

A prescriptive title to personal property, acuired in a former domicil, will be respected by

the lex fori

)uestions of the admissibility and effect of evidence are to be determined by the lex fori,

also uestions of costso %xemption laws are ordinarily governed by the lex fori

The administration of a deceased person7s movables is governed wholly by the law of the

country where the administrator acts and from which he derives his authority to collect them/lex fori0, without regard to the domicil of the deceased

o (ut the distribution of the distributable residue is governed by the lex domicilii

o 4sually, the distributable residue is remitted to the administration of the domicil

for distribution, but it is in the discretion of the court of tehe ancillary administratorto distribute such residue

An action in tort for an act done in a foreign country will not lie in %ngland unless the act

was a tort both in such foreign country and in %ngland

An action lies in one state on a wrong done in another state, which is actionable there,

although it would not be actionable in the state where suit is brought unless it be contrary toits own public policy

The damages recoverable from an employer for the death of his employee, caused by the

influence of the former, are controlled by the law of the place where the contract of

employment was made and the accident occurred, though the death took place and theaction was brought in another state


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Lex loci

This may be either be-

o 6ex loci contractus /the law of the place of making a contract0

o 6ex loci rei sitae or lex situs /the law of the place where a thing is situated0

o 6ex loci actua or lex actus /the law of the place where a legal transaction took

place0o 6ex loci celebrationis /the law of the place where a contract is made0

o 6ex loci solutionis /the law of the place where a contract is to be performed0

o 6ex loci delicti commissi /the law of the place where a tort is committed0

6ex loci contractus is used in a double sense

o It is used sometimes to denote the law of the place where the contract was madeo And at other times, to denote the law by which the con tract is to be governed,

which may or may not be the same as that of the place where it was made

The validity or invalidity of a contract as affected by the lex loci may depend upon the

capacity of the parties or the legality of the act to be done

The capacity of the parties as affected by uestions of minority or majority, incapacities

incident to coverture, guardianship, emancipation, and other personal ualities ordisabilities, is to be determined by the law of the place of making the contract

The uestion of disability to make a contract on account of infancy is to be decided by the

lex loci" so also, as to contracts made by married women

!ersonal disualifications not arising from the law of nature, but from positive law, and

especially such as are penal, are strictly territorial, and are not to be enforced in anycountry other than that where they originate

A contract legal by the lex loci will be so everywhere

o 4nless it is injurious to public rights or morals, contravenes the policy, or violatesa positive law of the lex fori

o The application of the lex loci is a matter of comity

o That law must, in all cases, yield to the positive law of the place of seeking the

remedy

It is held generally that the claims of citi$ens are to be preferred to those of foreigners

o Assignments, under the insolvency laws of a foreign state, are often held

inoperative as against claims of a citi$en of the state, in regard to personalproperty in the jurisdiction of the lex fori

#here a voluntary assignment is made, if good where made and made in conformity with

the law where the property is situated, it is valid in the latter state /ex8 proprio vigore0

In an action in !ennsylvania on a promissory note governed as to the contract by the law of

2ew *ersey, the uestion of whether parol evidence will be admitted to vary the contractmust depend upon the law of 2ew *ersey, and not upon the lex fori

o It was said that the right to introduce proof dehors /90 the instrument for the

purpose of showing what, in fact, the contract was and is an essential part of thecontract itself, and not a mere incident to the remedy

The interpretation of contracts is to be governed by the law of the country where the

contract was made

6ex loci governs as to the formalities and authentication reuisites to the valid execution of

contractso (ut in proving the existence of and seeking remedies for the breach, as well as in

all uestions relating to the competency of witnesses, course of procedure etc8,the lex fori must govern

o This presumption arises where the place of performance is different from the

place of making

It has been held that a lien or privilege affecting personal estate, created by the lex loci, will

generally be enforced wherever the property may be foundo (ut not necessarily in preference to claims arising under the lex fori, when the

property is within the jurisdiction of the court of the forum

A transfer of movables made in the place of the owner7s domicil and in accordance with its

laws will be enforced by the courts of the place where the movables are situated, althoughthe method of transfer be different from that prescribed by the latter country

o (ut not when the statutes of the place where they are situated or the policy of its

laws prescribe a different rule

A discharge from the performance of a contract under the lex loci is a discharge

everywhere

If the contract is to be performed partly in one state and partly in another, it will be affected

by the law of both states

In cases of indorsement of negotiable paper, every indorsement is a new contract, and the

place of each indorsement is in its locus contractus A note made in one state and payable in ano ther, is not subject to the usury laws of the

latter state, if it was valid in that respect in the state where it was made

The general rule is that a defence or discharge, good by the law of the place where the

contract is made or is to be performed, is to be held of eual validity in every place wherethe uestion may come to be litigated

amages for the commission of a tortious act are to be measured by the law of the place

where the act is done

The validity of a contract cannot be secured by apparently subjecting it to a law by which it

is not properly governed

It is said that the failure to comply with local reuirement as to form, not affecting the

obligation of the agreement, will not invalidate the contract

A contract, valid by the laws of the place where it was made, although no t in writing, will not

be enforced in the courts of a country where the .tatute of :rauds prevailso

(ut where the law of the forum and that of the place of execution of the contractcoincide, it will be enforced, although reuired to be in writing by the law of theplace of performance, because the form of the contract is regulated by the law ofthe place of its celebration, and the evidence of it by that of the forum

The law of all acts relating to real property is governed by the lex rei sitae


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Lex rei sitae

The law of the country where a thing is situated

It is the universal rule of the common law that any tithe or interest in land, or in other real

estate, can only be acuired or lost agreeably to the law of the place where the same issituated

o The law is the same in this respect in regard to all methods whatever of transfer,

and every restraint upon alienation

The lex rei sitae governs as to the capacity of the parties to any alienation, whether

testamentary or inter vivos, or to make a contract with regard to a movable, or to acuire orsucceed to a movable as affected by uestions of minority or majority, or rights arising from

the relation of husband and wife, parent and child, or guardian and ward, and of the rightsand powers of executors and administrators /whether the property be real or personal0, ofheirs, and devisee or devisor

.o as to the forms and solemnities of alienation, and the restrictions, if any, imposed upon

such alienation, the lex rei sitae must be compliedo .o as to the amount of property or extent of interest which can be acuired, held

or transferred, and the uestion of what is real property

The law of a country where a thing is situated determines whether the thing itself, or any

right, obligation, or document connected with the thing is to be considered an immovableo 'enerally, the lex rei sitae governs as to the validity of any such transfer

The validity, construction, and effect of wills of movables depend upon the lex rei sitae, but

the law of the state where the will was made may be considered by the court of the situs indetermining the meaning of certain words in it

The validity of a charitable devise depends upon the lex rei sitae, and so does the

execution of a power of appointment of lands under a will, and the devolution of land,whether in case of intestacy or under a will

The acuisition of a title to land by lapse of time /prescription0 must be determined by the

same law, except so far as the limitation to an action to recover land depends on the lex fori

Notes:

Governmental interest analysis

2ormally, even in cases involving foreign elements, the court should be expected, as a

matter of course, to apply the rule of decision found in the law of the forum

#hen it is suggested that the law of a foreign state should furnish the rule of decision, the

court should-o :irst of all, determine the governmental policy expressed in the law of the forum

o It should then inuire whether the relation of the forum to the case is such as to

provide a legitimate basis for the assertion of an interest in the application of that

policy If necessary, the court should similarly determine the policy expressed by the foreign law,

and whether the state has an interest in the application of its policy

If the court finds that the forum state has no interest in the application of its policy, but that

the foreign state has, it should apply the foreign law

If the court finds that the forum state has an interest in the application of its policy, it should

apply the law of the forum, even though the foreign state also has an interest in theapplication of its contrary policy, and a fortiori, it should apply the law of the forum if theforeign state has no such interest

Public policy, public law doctrine

%very legal system reserves an ultimate discretion to exclude the application of the foreign

lex causae normally applicable under its choice5of5law principles if the result is offensive toforum public policy

o The operation of this exception is not restricted to the choice5of5law level

o !ublic policy also provides a defence to the enforcement of foreign decisions and

judgments that would otherwise be entitled to recognition

Claims and judgments based on foreign ;sovereign< or ;public< rights are also vulnerable to

exclusiono This is well5established in the case of foreign tax and penal laws

o Apart from these two classic examples, the jurisprudential terrain is still largely

unexplored

The penal, revenue, public law, and public policy defences to the recognition of a foreign

judgment are distinct from the natural justice defence8o The natural justice defence is concerned with the fairness of the procedure by

which the foreign judgment was obtained, whereas the other defences rest on thesubstantive character of the foreign laws on which that judgment was based


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Principle of territoriality

%very nation possesses an exclusive sovereignty and jurisdiction within its own territory

The direct conseuence of this rule is that the laws of every state affect and bind directly

all-o !roperty, whether real or personal, within its territory

o !ersons who are residing within it, whether natural5born subjects or aliens

o Contracts made, and acts done within it

A state may, therefore, regulate the manner and circumstances under which-

o !roperty within it, whether real or personal or in action, shall be held, transmitted,

beueathed, or transferred, or enforced

o The condition, capacity, and state of all persons within ito The validity of contracts and other acts done within it

o The resulting rights and duties growing out of these contracts and acts

o And the remedies and modes of administering justice

In all cases calling for the interpretation of its tribunals to protect, vindicate, and secure thewholesome agency of its own laws within its non5domain

2o state or nation can, by its laws, directly affect or bind property out of its territory, or

persons not residing therein, whether they are natural5born or subjects or otherso It would be wholly incompatible with the euality and exclusiveness of the

sovereignty of any nation that other nations should be at liberty to regulate eitherpersons or things within its territories

#hatever force and obligation the laws of one country have in another depends solely upon

the laws and municipal regulations of the latter" that is to say, upon its own properjurisprudence and polity, and upon its own express or tacit consent

Comity

The assertion that the recognition or enforcement of foreign law depends upon comity

means only that the law of no country can have effect as law beyond the territory of thesovereign by whom it was imposed, unless by permission of the state where it is allowed tooperate

o The application of foreign law is not a matter of caprice or option, it does not arise

from the desire of a sovereign to show courtesy to other stateso It flows from the impossibility of otherwise determining whole classes of cases

without gross inconvenience and injustice to litigants, whether natives orforeigners

Vested rights

A right having been created by the appropriate law, the recognition of its ex istence should

follow everywhere

o Thus an act valid where done cannot be called in uestion anywhere #hen a right has been created by law, this right itself becomes a fact, and its existence

may be a factor in an event which the same or some other law makes the condition of anew right

If no law having power to do so has changed a right, the existing right should everywhere

be recogni$ed, since to do so is merely to recogni$e the existence of a fact

Local law theory

The forum, when confronted by a case involving foreign elements, always applies its own

law to the case, but in doing so adopts and enforces as its own law a rule of decisionidentical in scope with a rule of decision found in the system of law in force in another stateor country with which some or all of foreign elements are connected, the rule so selectedbeing in many groups of cases, the rule of decision which the given foreign state or countrywould apply, not to their very group of facts now before the court of the forum, but to asimilar but purely domestic group of facts involving for the foreign court no foreign element

o The rule thus incorporated into the law of the forum may, for convenience, be

called the ;domestic rule< of the foreign state, as distinguished from its ruleapplicable to cases involving foreign elements

o The forum thus enforces not a foreign right, but a right created by its own law


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iscretion to decline !urisdiction and restraint of foreign proceedings:

.tay /or dismissal0 of proceedings =& anti5suit injunction

In cases where jurisdiction has been founded as of right /i8e8 where in this country, the

defendant has been served with proceedings within the jurisdiction0, the defendant maynow apply to the court to exercise its discretion to stay the proceedings on the groundwhich is usually called :=&41 2=2 C=2+%2I%2.

o The plea can never be sustained unless the court is satisfied that there is some

other tribunal, having competent jurisdiction, in which the case may be tried moresuitable for the interests of all the parties and for the ends of justice

o The uestion is not one of convenience done, but of the suitability or

appropriateness of the relevant jurisdictiono In order to justify a stay, two conditions must be satisfied, one positive and the

other negative- The defendant must satisfy the court that there is another forum to

whose jurisdiction he is amenable, in which justice can be donebetween the parties at substantially less inconvenience or expense,and

The stay must not deprive the plaintiff of a legitimate personal or

judicial advantage which would be available to him if he invoked thejurisdiction of the first court

The law relating to injunctions restraining a party from commencing or pursuing legal

proceedings in a foreign jurisdiction as a long history8 Certain basic principles are nowbeyond dispute-

o The jurisdiction is to be exercised when the ;ends of justice< reuire it

o #here the court decides to grant an injunction restraining proceedings in a

foreign court, its order is directed not against the foreign court, but against theparties so proceeding or threatening to proceed

o It follows that an injunction will only be issued restraining a party who is

amenable to the jurisdiction of the court against whom an injunction will be aneffective remedy

o .ince such an order directly affects the foreign court, the jurisdiction is one which

must be exercised with caution

The courts have developed two forms of remedy to control the choice of forum by the

partieso The first and more conventional one is a stay of proceedings this enables the

court of the forum selected by the plaintiff /the domestic forum0 to stay the actionat the reuest of the defendant, if persuaded that the case should be triedelsewhere

o The second is the anti5suit injunction a more aggressive remedy, which may be

granted by the domestic court at the reuest of a defendant>s, actual or potential,in a foreign suit

In the usual situation, the plaintiff in the domestic court moves to

restrain the defendant>s from launching or continuing a proceeding inthe courts of another jurisdiction

=ccasionally, the defendants in a foreign jurisdiction /who allege that

the plaintiff in that jurisdiction has selected an inappropriate forum0seek an injunction from the courts of the alleged inappropriate forum, inwhich no proceeding is pending, to restrain continuation of the foreignproceedings

#hile the restraining order operates in personam on the plaintiff in the

foreign suit, and not on the foreign court itself, it has the latter effectand therefore raises serious issues of comity

Although both the remedy of a stay and an injunction have as their main objectives the

selection of an appropriate forum for the trial of an action, there is a fundamental difference

between them

o In the case of the stay, the domestic court determines for itself whether in the

circumstances, it should take jurisdictiono #hereas in the case of the injunction, it in effect determines the matter for the

foreign court


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"urisdiction in personam

The status of an individual is occasionally relevant to uestions of jurisdiction

o There are some persons whose status prohibits them from bringing an action and

there are some whose status confers immunity from action

The standing of an unorgani$ed entity is not regulated by statute, and so must be resolved

by the application of basic conflicts principles

The uestion whether a foreigner can be a party to proceedings in the %nglish courts is one

to be determined by %nglish law /as the lex fori0o In the case of an individual, no difficulty usually arises

o The same can be said of foreign legal persons which would be recogni$ed as

such by %nglish lawo The novel uestion which arises is whether a foreign legal person which could

not be recogni$ed as a legal person by %nglish law can sue in %nglish courts

Theories of territorial sovereignty five to the sovereign the right to control any person

physically present in the territoryo The corollary is an absence of power to regulate persons in other jurisdictions

because that would constitute an interference with the sovereignty of thatjurisdiction

Traditionally, the presence of the defendant within the territorial limits of the court or his

voluntary submission to the authority of the court has founded jurisdiction in a personalaction in that court

Traditionally, the view has been held that jurisdiction in a personal action rests upon

physical power and the ability of the court to enforce any judgment it may rendero *urisdiction, therefore, normally depends upon the presence of the defendant

within the territorial limits of the court or upon the voluntary submission of thedefendant to the authority of the court

There are ? ways in which jurisdiction may be asserted against an out5of5state defendant-

o !resence5based jurisdiction permits jurisdiction over an extra5state defendant

who is physically present within the territory of the courto Consent5based jurisdiction permits jurisdiction over an extra5state defendant

who consents, whether by voluntary submission, attornment /90 by appearanceand defence, or prior agreement to submit disputes to the jurisdiction of thedomestic court

@(oth presence5 and consent5based jurisdiction also provide bases for the recognitionand enforcement of extra5state judgmentso Assumed jurisdiction initiated by service of the court7s process out of the

jurisdiction8 4nlike presence5 and consent5based jurisdiction, assumedjurisdiction does not normally provide a basis for recognition and enforcement

+ery often, there is more than one forum capable of assuming jurisdiction, and it is

necessary to determine where the action should be litigatedo #here more than one forum is capable of assuming jurisdiction, the most

appropriate forum is determined through the ;forum non conveniens< doctrine,which allows a court to decline to exercise its jurisdiction on the ground that thereis another forum more appropriate to entertain the action

The forum has an interest in protecting the legal rights of its residents and affording injured

plaintiffs generous access for litigating claims against tortfeasors

=n the other hand, if the plaintiff lacks a significant connection with the forum, the case for

assuming jurisdiction on the basis of damage sustained within the jurisdiction is weakero If the connection is tenuous, courts should be wary of assuming jurisdiction

o 1ere residence in the jurisdiction does not constitute a sufficient basis for

assuming jurisdiction

If the defendant has done anything within the jurisdiction that bears upon the claim

advanced by the plaintiff, the case for assuming jurisdiction is strengthened

In considering whether to assume jurisdiction against an extra5state defendant, the court

must consider whether it would recogni$e and enforce an extra5state judgment against a

domestic defendant rendered on the same jurisdictional basis, whether pursuant tocommon law principles or any applicable legislation

o %very time a court assumes jurisdiction in favor of a domestic plaintiff, the court

establishes a standard that will be used to force domestic defendants who aresued elsewhere to attorn /90 to the jurisdiction of the foreign court of faceenforcement of a default judgment against them

o It follows that where a court would not be willing to recogni$e and enforce an

extra5state judgment rendered on the same jurisdictional basis, the court cannotassume jurisdiction


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#ecognition and enforcement of foreign !udgments and arbitral awards

It is a fundamental tenet of territorial sovereignty that the laws and orders of one sovereign

cannot be directly enforced in the territory of anothero The corollary is that all jurisdictions have rules that provide for conversion of

foreign orders to local orders, enforceable by local processeso 2othing prevents a sovereign from waiving the right to reuire conversion

o .imilarly, nothing prevents one state denying recognition to judgments and

orders of all other states but such a degree of non5cooperation is not consideredto be in the self5interest of the state

The traditional common law rules reuire the foreign judgment creditor to persuade the

forum that-o The foreign judgment is final and conclusive, and

o The foreign court had jurisdiction in the international sense

An action on a foreign judgment at common law has traditionally been viewed as an action

in debt, the debt having been created by the foreign judgmento :or limitation period purposes, an action on a foreign judgment is, therefore,

subject to the same limitation period as a domestic action in debt, regardless ofthe limitation period attached to the enforcement of the judgment in theoriginating jurisdiction

Another distinction between domestic and foreign judgments is that the doctrine of res

judicata does not apply to foreign judgmentso The cause of action is not considered to have merged in the foreign judgment

o It may be possible, therefore, for a plaintiff to sue again on the original cause of

action, should the foreign judgment be one not recogni$able by the forum

A foreign court will be held to have had jurisdiction in the international sense for the

purposes of recognition and enforcement of a particular judgment if-o The defendant was present in the jurisdiction at the time the action was

commencedo The defendant voluntarily submitted to the jurisdiction of the foreign court" or

o There was a real and substantial connection between the action and the

jurisdiction

%nglish courts will not enforce the judgment of a foreign court against a defendant who

does not reside within the jurisdiction of that court, has no assets within that jurisdiction,and does not appear before that court even though that court, by its own local law, has

jurisdiction over himo %nglish courts will not enforce the judgment of a foreign court against a

defendant who, although he does not reside within the jurisdiction of that court,has assets within that jurisdiction and appears before that court solely topreserve those assets which have been sei$ed by that court

o %nglish courts will enforce the judgment of a foreign court against a defendantover whom that court has jurisdiction by its own local law /even though it doesnot possess such jurisdiction according to the %nglish rules of conflict of laws0 ifthat defendant voluntarily appears before that foreign court to invite that court, inits discretion, not to exercise the jurisdiction which it has under its own local law

The merits of a foreign judgment, in rem or in personam, are not examinable at all whether

the judgment is relied upon by the plaintiff as a cause of action or pleaded by the defendantas a bar to an action instituted against him

o The rule that courts will not permit a retrial of the issues which have already been

decided by the foreign court is now well5settled

A valid foreign judgment creates a new righ t in the judgment plaintiff and imposes a new

duty on the judgment defendant, these rights being independent of and distinct from thecause of action alleged in the suit wherein the judgment was rendered

o A suit on this judgment being one on a new right, it is immaterial whether or not a

valid cause of action existed prior to the judgment

If a judgment is pronounced by a foreign court over persons within its jurisdiction and in amatter with which it is competent to deal, %nglish courts never investigate the propriety of

the proceedings in the foreign court, unless they offend against %nglish views of substantialjustice

o #here no substantial justice, according to %nglish notions, is offended, all that

%nglish courts look to is the finality of the judgment and the jurisdiction of thecourt, in this sense and to this extent namely, its competence to entertain thesort of case which it did deal with, and its competence to reuire the defendant toappear before it

o If the court had jurisdiction in this sense and to this extent, %nglish courts never

inuire whether the jurisdiction has been properly or improperly exercised,provided always that no substantial justice according to %nglish notions hasbeen committed

There is no doubt that %nglish courts will not enforce the decisions of foreign courts which

have no jurisdiction in the sense above5explained i8e8 over the subject matter or over thepersons brought before them

o (ut the jurisdiction which alone is important in these matters is the competence

of the court in an international sense i8e8 its territorial competence over thesubject matter and over the defendant

o Its competence or jurisdiction in any other sense is not regarded as material by

the %nglish courts

A judgment of a foreign court having juri sdiction over the parties and subject5matter i8e8

having jurisdiction to summon the defendants before it and to decide such matters as it hasdecided cannot be impeached in %ngland on its merits

The common law provides a defendant in an action for recognition and enforcement of a

foreign judgment with a number of possible defenseso *udgments based on foreign penal or revenue laws are not enforceable and

neither are those based on laws that are contrary to the public policy of the forumo Additional defenses are that the foreign judgment was obtained by fraud or in

breach of natural justiceo It is not a defense, however, that the foreign court erred in law, even if the error in

law was one concerning the law of the recogni$ing court The court being asked to recogni$e a foreign judgment is not sitting as

an appellate court

The correctness in fact or in law of a foreign judgment is irrelevant in an action to enforce

that judgment in =ntarioo This is so regardless of whether the foreign judgment followed a trial of the merits

or a defenseo As the correctness of the decision of the foreign court is irrelevant, it f ollows that

the merits of the claim or the merits of defenses to the claim are eually irrelevant

:raud /as a defense to an action to enforce foreign judgments0 to be relied on must be

something collateral or extraneous, and not merely the fraud which is imputed from allegedfalse statements made at the trial, which were met by counter5statements by the other side,and the whole adjudicated upon by the court and so passes on into the limbo of estoppel bythe judgment

o This estoppel cannot be disturbed except upon the allegation and proof of new

and material facts, or newly discovered and material facts which were not beforethe former court and from which are to be deduced the new proposition that theformer judgment was obtained by fraud

o The burden of that issue is upon the defendant, and until he at least gives prima

facie evidence in support of it, the estoppel standso ;2ew facts< refer to facts which have come into existence after the foreign

judgment was obtainedo ;2ewly discovered facts< refer to facts which existed at the time the foreign

judgment was obtained but were not known to the defendant

Canadian courts will not recogni$e or enforce a foreign law or judgment or a right, power,

capacity, status or disability created by a foreign law that is contrary to the forum7s stringentpublic policy, ;essential public or moral interest< or ;conception of essential justice and


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morality


10/22

Choice$of$law methodology

Choice5of5law principles have traditionally been expressed in rules that say that a particular

type of legal issue is to be determined according to the internal law of a comity with whichthe case has a defined connection

o (y ;internal law< is meant the law that applies to a case arising entirely within that

countryo This may be called the classic form of choice5of5law rule because it has been the

basis of both civil and common law systems of choice5of5law for the last Byears8 .ome examples-

:ormal validity of a marriage is governed by the law of the country in

which the marriage is celebrated Capacity to enter into a marriage is governed by the law of the country

in which the party said to be incapable is domiciled 6iability in tort is governed by the law of the country in which the tort

was committed

A testamentary disposition is essentially valid if it complies wi th the law

of the country in which the testator was domiciled when he died

1atters of judicial procedure are governed by the law of the forum /the

country in which the court hearing DDD0

%ach choice5of5law rule identifies a category of legal issue /for example, formal validity of a

marriage or liability in tort0 and says that an issue falling under that category must bedecided according to the law of a country designated by means of a ;connecting factor< place of celebration of the marriage, domicile, place of commission of the tort, or place inwhich the case is being heard

o The designated legal system may be that of another state, a foreign nation, a

subdivision of a foreign nation, or the forum itself It is important to reali$e that, as a practical matter, a choice5of5law rule only comes into play

if a party to the legal dispute-o !leads that an issue should be decided by a law other than that of the forum, and

o !roves as a fact that the outcome of the issue is different under the foreign law

than it is under the law of the forum /the lex fori0

If none of the parties to a dispute raises the uestion of choice5of5law, the court must simply

decide the issue according to the rules of its own legal systemo The same applies, even if a party does not rely on a foreign legal rule, if that

party fails to satisfy the court as to what the relevant foreign rule is or how itapplies to the facts

o Again, the court must apply its own law

#ithout doubt, most potential choice5of5law issues are never raised, either because the

foreign law would just lead to the same result as the lex fori, or because it is not worth

anybody7s while to marshal the evidence to prove the foreign legal rule Any party who relies on a foreign legal rule must justify its application by invoking a choice5

of5law ruleo ifferent legal systems use different approaches to choice5of5law

o :or instance, common law jurisdictions traditionally decide issues relating to

personal status /marriage, legitimacy, etc80 by applying the person7s domicile/which means permanent residence0

o Civil law jurisdictions traditionally apply the law of the country of which the person

is a citi$en, which may be a completely different countryo .o it is uite possible for a choice5of5law uestion to be decided according to one

country7s law if the issue arises in the court of a common law jurisdiction and byanother country7s law if it arises in the court of a civil law jurisdiction

o There is no such things as an internationally accepted system of choice5of5law,

so the choice5of5law rule invoked by a party must be drawn from a specifiedjurisdiction

That jurisdiction is, and must be, the forum itself

Choice5of5law rules, whether judge5made or statutory, are, in positivist terms, commands to

the court by the law5making authorities of the court7s own country

The law says to the judge- ;Eere is the basis on which you must decide whether to apply a

rule of our own internal law or a rule of foreign law to decide on a particular person7s legalrights8 3ou are not free to apply or not to apply rules of foreign law as the spirit moves you83ou can only apply rules of foreign law if the choice5of5law rule says that you can8louch'o@@ 0196,( ,4 +LR 02d 42 0C CA

o %haw vs& %haw 019,6 1 +LR 168( 62 CR 42( 019,4 - 55R 433

o Ross %mith vs& Ross %mith 01962 2 5LR -88

The fact is that when a court pronounces a decree of nullity in the case of a void marriage,

it is not bringing any state of affairs about but is merely making a declaration as to what thestate of affairs had been and is

o A void marriage does not create a married status

This logically follows from the fact that there is no marriage at all

There is no ;husband< and no ;wifew;n vs& ?ellen 01939 6 55R -84 0C CA

A foreign decree of nullity will be recogni$ed in %ngland

o If the parties were domiciled in such foreign country at the commencement of the

proceedings for nullity"o If the parties were resident of such foreign country at the commencement of the

proceedings for nullity"o If the nullity decree would be recogni$ed by the courts of the country where at the

date of the commencement of the proceedings, the parties were domiciled

A decree of nullity of marriage pronounced by a foreign court of competent jurisdi ction will,

in the absence of fraud or unless contrary to natural justice, be recogni$ed as binding andconclusive by the courts of %ngland

The courts of a foreign country have jurisdiction to pronounce a decree of nullity of

marriage if the marriage was celebrated in such foreign country

.ubject to certain exceptions, a decree of nullity of marriage pronounced by a foreign courtof competent jurisdiction will be recogni$ed as binding and conclusive by the %nglish court

o .uch a decree would be recogni$ed if, in the case of a void marriage, the

marriage was celebrated in the country where the decree was pronouncedo A foreign decree of nullity will also be recogni$ed in %ngland if the %nglish court

would have had jurisdiction in converse circumstances to entertain theproceedings

The principle of recognition based on reciprocity is founded on the concept that both the

domestic court and the foreign court would have exercised the jurisdiction that the foreigncourt in fact exercised to decide the uestion that it decided

Read.

o Robinson$%cott vs& Robinson$%cott 01948 =31( 01943 - A11 7R ,3-

o #nd;'a vs& #nd;'a 01969 1AC --( 01963 2 A11 7R 689 0L

o Law vs& >ustin 01936 :am& 144( 01936 1 A11 7R 11-&

o olub vs& olub 01936 4 55R 423( 26 R:L 26-( 31 +LR 0-d 698

6ike foreign divorce decrees, a foreign nullity decree can be refused recognition on the

ground that it was obtained by fraud or in contravention of the rules of natural justice oreven, it appears, on the ground that it would offend notions of substantial justice

Read.

o >ra; vs& :ormosa 0196- = 249 0CA

o Adams vs& Cape #ndustries =lc 0199 C& ,-- 0CA

(atrimonial property

At common law, the effect of marriage on the parties7 proprietary rights depended initiall y on

whether they had entered into a valid marriage contract or settlemento If they had, then the rights of the parties in respect of all the property within the

contract7s ambit would be referred to the terms of the contract despite anysubseuent change in the parties7 domicile

It is settled that where there is a marriage contract, the terms of the contract govern the

mutual rights of husband and wife in respect of the property affected by the contract whichmay be then possessed or afterwards acuired

#hen a marriage contract exists, the rights of the parties cannot be affected by a

subseuent change of domicile, but will always be covered by the proper law of themarriage contract or settlement

o The foundation for this rule is the principle that a change of domicile cannot affect

existing contractual obligations

In general, all issues of the validity of the contract were referred to the proper law, which, in

the absence of evidence to the contrary, was presumed to be the husband7s domicile at thetime of the marriage8

In the absence of an express marriage contract, there is a authority for the view that theparties might be held to have impliedly contracted to adopt the marital property regime oftheir matrimonial domicile, generally interpreted to be the husband7s domicile at the time ofthe marriage

:ailing an express or implied marriage contract, the matrimonial domicile governed by the

spouses7 rights to each other7s movables, whereas the law of the situs governed their rightsto each other7s immovables

o The cases suggest, however, that, as regards movables, the matrimonial regime

would vary with a change of domicile save in so far as vested proprietary rightshad been acuired under the law of the former domicile

The matrimonial regime of spouses having married without entering into matrimonial

agreements is governed by the law of their domicile at the time of the solemni$ation of theirmarriage

If the spouses are at the time domiciled in different countries, the applicable law is the law

of their first common residence or, failing that, the law of their common nationality or, failingthat, the law of the place of solemni$ation of the marriage

Courts will not assume jurisdiction to determine title to or the right to possession of foreign

immovable, nor will they recogni$e and enforce determinations by foreign courts of title toor the righto possession of immovable situated in the forum


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Children

The focus on furthering the ;best interests of the child- underlies international instruments

relating to children, most of which emanate from the Eague Conference on !rivateInternational 6aw

The attitude of common law to international disputes over children has been very strongly

influenced by the way in which child custody, and similar, disputes should be resolved atthe domestic level, and little influenced by general principles of private international law

o It could never be argued that respect for international comity has been that in

determining such issues, the paramount consideration for the court should be thechild7s welfare

The starting point for determining the inherent jurisdiction of the court was the prerogative

power of the Crown to act as parens patriae

Although parts of common law would have seen significant developments in the field of

jurisdiction over custody disputes, the choice of law position seems unaffectedo The law of the forum is applied

o =ne of the policy justifications for the application if the law of the forum is the fact

that substantive family law reuires the welfare of the child to be regarded as theparamount consideration

eterminations of custody were ancillary to divorce

o A custody issue should be decided in the state in which the children have the

closest connectiono It is, therefore, possible for the divorce petition and the custody issue to be heard

in two different placedo 2evertheless, a custody claim must be filed with the court hearing the divorce

petition, which then must decide whether a transfer of the custody claim is

warranted As in many family law areas, choice of law has never been considered relevant in relation

to custody ruleso The law of the forum applies without fail, the justification being that the interests

of the child, given preference under substantive domestic law, cannot besuperseded by incompatible foreign rules

o *urisdictional rules, including the discretion to decline jurisdiction, will often

ensure that the lex fori is the appropriate lawo In addition, where custody is decided as an ancillary to divorce, the lex fori rule

for divorce is simply carried over

At common law, it is not possible to enforce a foreign custody order" such an order can only

be considered by the domestic court as an element to be weighed in the course of a newproceeding to determine custody

*doption

.ome systems tend to see adoption primarily in terms of the relationships it creates and the

uestion then is what law governs its conditions and effectso These systems focus on the uestion of applicable laws and the problem of the

jurisdiction of authorities remains of a subsidiary character /;Conflicts Approach


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+oreign law

The courts do not take judicial notice of foreign laws" and they must, therefore, be proved

as matters of fact and pleaded" written laws, by the text, or collection printed by theauthority, or a copy certified by the proper officer, or in their absence, perhaps, by theopinion of experts as secondary evidence, they may be construed with the aid of textbooksas well as of experts" where experts are called, the sanction of an oath is reuired

As to the manner of proving unwritten laws of foreign countries, the decisions show a

divergence of opiniono The unwritten law of %ngland may be proved in the 4.A courts not by experts

only, but also by text5writers of authority, and by the printed reports of adjudgedcases

o In respect to the laws of other foreign countries, where a system obtains wholly

different from our own, the rigid proof by the testimony of experts alone should beinsisted on

In the absence of proof as to what the law of a foreign state or country is, the court, when it

takes judicial notice that the foreign state has fundamentally the same system of the law asthat of the forum, will presume that the law of the foreign state is the same /exclusive ofstatutory changes0 as that of the law of the forum" but there are cases in which the law ofthe forum, even through statutory, is always applied in the absence of proof of the foreignlaw

:oreign unwritten laws, customs, and usages may be proved, and are ordinarily proved, by

parol evidence" and when such evidence is objected to on the ground that the law inuestion is a written law, the party objecting must show that fact

The manner of proof varies according to circumstances

o As a general rule, the best testimony or proof is reuired" for no proof will be

received which presupposes better testimony attainable by the party who offersit

o #hen the best testimony cannot be obtained, secondary evidence will be

receivedo A foreign law must be proved like any other fact, and in the absence of such

proof it will be presumed that the common law prevails, in the foreign jurisdiction

%xemplified or sworn copies of written laws and other public documents, must as a general

thing, be produced when they can be procured" but should they be refused by thecompetent authorities, then inferior proof may be admitted

#hen our own government has promulgated a foreign law or ordinance of a public nature

as authentic, that is held sufficient evidence of its existence

The usual modes of authenticating them are by an exemplification under the great seal of a

state, or by a copy proved by oath to be a true copy, or by a certificate of an officerauthori$ed by law, which must itself be duly authenticated

!roof of unwritten law is usually made by the testimony of witnesses learned in the law and

competent to state it correctly under oath

The public seal of a foreign sovereign or state affixed to a writing purporting to be a written

edict, or law, or judgment, is of itself the highest evidence, and no further proof is reuiredof such public seal

(ut the seal of a foreign court is not, in general, evidence without further proof, and must

therefore, be established by competent testimony

:oreign laws have, as such, no extra5territorial force, by have an effect by comity

o In the absence of pleading and proof to the contrary, the laws of another state are

presumed to be like those of the state in which the action is brought

The effect of foreign laws when proved is properly referable to the court" the object of the

proof of foreign laws is to enable the court to instruct the jury what is in point of law, theresult from foreign laws to be applied to the matters in controversy before them

o The courts are, therefore, to decide what is the proper evidence of the laws of a

foreign country" and when evidence is given of those laws, the courts are to

judge of their applicability to the matter in issue

+oreign corporations

=ne created by or made under the laws of any other state or government

A corporation can have no legal existence out of the boundaries of the sovereignty by which

it is createdo It exists only in contemplation of law, and by force of the law, and where that law

ceases to operate, and is no longer obligatory, the corporation can have noexistence

o It must dwell in the place of its creation, and cannot migrate to another

sovereigntyo It may contract in other states within the scope of its own powers and subject to

the laws of the lex loci contractus or the lex loci solutionis, as the case may be,as natural persons may contract where they do not reside

o 4nless expressly forbidden to do so, a corporation may acuire rights of contract

and property in a foreign jurisdictiono !rivate corporations will be permitted to transact in other states the business

authori$ed by the state of their creation, subject to any limitations imposed byexpress legislation, or to the laws and policy of the state in which it doesbusiness

%very power, however, which a corporation exercises in another state depends for its

validity upon the laws of the sovereignty in which it is exercised, and a corporation canmake no valid contract without their sanction, express or implied"

o Any other exercise of power by it rests absolutely upon the doctrine of comi ty,

and is subject to the laws and regulations, process and remedial jurisdiction ofthe state of business or temporary domicil" this comity stops short of permissionto exercise any powers in excess either of the powers of domestic corporations of

the same class, or of the powers authori$ed by its own chartero #hatever limitations a state statute may impose upon a foreign corporation7s

liberty of contracting, whatever its discriminations, they become conditions of thepermission to do business in the state and such conditions were accepted withthe permit

:oreign corporations are sometimes by the legislation of a state, made domestic

corporations for certain purposes, as for jurisdiction

A state may impose such terms for the admission of foreign corporations as it may deem

best" or may exclude them, and this power extends to a single one already within itsjurisdiction, if the act does not deprive i t of property without due process of law, and themere right to extend its business into a state is not property in this sense

o .uch statutes do not constitute a contract between the state and such foreign

corporation which is impaired by subseuent legislationo They do not avoid the contracts made in the state of unregistered foreign

corporations, but merely suspend civil remedies in that stateo The right of the state to prevent foreign corporations from continuing to do

business within its borders is a correlative of the right to exclude them therefrom,and as this power is plenary, the state, so long as no contract is impaired, mayexercise it in consideration of acts done in another jurisdiction8

(usiness cannot be carried on in a state by a foreign corporation which has not complied

with all the conditions imposed by the state as a prereuisite to doing business within itslimits

The states may in their discretion, impose conditions upon foreign corporations, as

essential to enable them to do business" they may discriminate between them anddomestic corporations and, if it be considered good policy, make that discrimination soburdensome as to amount to exclusion

The uestion of the power of a foreign corporation to take hold and transmit title to land is

one of public policy" in the absence of prohibitory local law, if authori$ed to do so in thestate of their creation, corporations may hold lands in other states, unless forbidden to doso either by the public policy of the state or its statute law

In all cases involving the right of foreign corporations to hold lands, the lex rei sitae governs


22/22

#henever a foreign corporation has the power to make a contract in a state of country, it

may enforce it or recover damages for a breach in like manner as persons may do in likecase

o It is a principle long and well5settled that, unless prohibited by local statutory law,

a corporation of one state may sue in another by its corporate title

In suits against foreign corporations, the uestion of jurisdiction is of first importance, and it

is the general rule that a corporation, a like a natural person, cannot be sued in personamin a state within whose limits it has never been found

o This conclusion springs naturally from the principle that a ;corporation being the

creation of local law, can have no legal existence beyond the limits of thesovereignty where created"

o (ut this rule is subject to exceptions growing out of the theory that, under certain

circumstances, such corporations will be held in law to have acuired a domicilwithin a state, at least so far as to subject them to suit8

%xceptions to the rule Jthat foreign corporations cannot be sued in a local jurisdictionK-

0 #here a corporation had established a permanent agency in the state or country"F0 #hen it is agreed with the state that process may be served on it"

?0 #hen it is agreed with the opposite party that an action may be brought against itto enforce a contract against it in a state or country other than its domicil

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COL Robles Notes

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