File Name: conflict of laws cases and materials file.zip
On 3 Feb. The Provisions addresses the issues that we mentioned in our earlier post 2 years ago, i. Two years ago, we made a study on three Internet Courts in China to find out whether foreign parties can register cases in such three courts. In February , a reader in New York wrote to us that he had been deceived in the cross-border e-commerce trade with a Chinese company.
Log In Sign Up. Download Free PDF. Gl M Ng. Download PDF. A short summary of this paper. Introduction Generally, conflict of laws is a set of procedural rules that determines which legal system and which jurisdictions applies to a given dispute. Conflict of laws is sometimes interchangeable referred to as private international law or international private law. Whereas the term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition England, Canada, and Australia, the United States, Kenya etc , private international law is usually used in France, Italy, Greece, and in the Spanish and Portuguese-speaking countries.
Within the federal systems e. Hence, conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state.
The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the manner in which the court resolve the conflict between those laws. Jurisdiction The question that arises in conflict of law cases is whether the forum court has the power to resolve the dispute at hand. Enforcement Foreign judgments The other question related to the ability of the courts to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum.
The justifications for this include: i To implement the reasonable and legitimate expectation of parties to the transaction or an occurrence — E. Similarly, if a person sued and obtained a judgement in a foreign country, he could find that the judgment debtor has surreptitiously removed all his assets from that country to avoid execution of the judgement.
Comity here connotes courtesy or the need for reciprocity or even the rule of international law as the accepted rule of mutual conduct as between states and therefore more than mere courtesy. In Rahimtoola v. The United States Court enjoined other airways from taking similar steps in the English courts to frustrate the anti-trust proceedings in the United States.
Kenya may be bound by a treaty that requires national courts to apply foreign law. History Conflict of Laws The first instances of conflict of laws in the Western legal tradition can be traced to Greek law. Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-law rules. Leading solutions varied between the creation of courts for international cases, or application of local law, on the grounds that it was equally available to citizens of all states.
More significant developments can be traced to Roman law. Roman civil law jus civile being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases.
The officers of these specialized tribunals were known as the praetor peregrini. The Praetor peregrini did not select a jurisdiction whose rules of law should apply. Instead, they "applied" the "jus gentium. Thus the praetor peregrini essentially created new substantive law for each case. Today, this is called a "substantive" solution to the choice-of-law issue. The modern conflict of laws is generally considered to have begun in Northern Italy during the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice.
The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of statuta, whereby certain city laws would be considered as statuta personalia "following" the person whereby it may act, and other city laws would be considered as statuta realia, resulting in application of the law of the city where, e.
Maritime law was also a great driver of international legal rules; providing for the enforcement of contracts, the protection of shipwrecked sailors and property, and the maintaining of harbours. The modern field of conflicts emerged in the United States during the nineteenth century with the publishing of Joseph Story's treatise on the conflict of laws in Much of the English law then became the basis for conflict of laws for most Commonwealth countries.
However, in the US, Story's work fell out of fashion in the mid-twentieth century. Traditional conflict of law rules were widely perceived as too rigid and unresponsive to the needs of a highly mobile society undergoing the Second Industrial Revolution. They were replaced with a number of approaches, of which the most important is the governmental interests analysis pioneered by law professor Brainerd Currie in a landmark series of essays.
As a result of Currie's work, the rules for conflict of laws in the United States have diverged significantly from the rules in use at the international level. Sources of Applicable Rules Conflict of Laws 2. Legislation This is by far the most important source. For a long time both in England and Kenya, Statute e. Increasingly, they are enacted in order to enforce international conventions or as a well though and considered reforms.
Legislation having effect on the Conflict of law system may be Statute with no indication of their application space. However, this presumption is easily rebutted. Other statute may provide a particular choice of law. Foreign Judgments Reciprocal Enforcement Act cap 45 deals specifically with the enforcement of foreign judgements in Kenya. International Conventions The treaties negotiated under the aegis of the Hague Conference on Private International Law have formed an important basis of conflict of laws.
Hague Convention on Conflict of Laws relating to the form of testamentary disposition formed a basis of the English Wills Act , from which the Kenyan law on Succession subsequently borrowed. Decision of Courts Give Examples 2. The Stages in a Conflict Case a The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of forum shopping.
Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue. In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to be made on an ad hoc basis, with such choice of law rules as have been developed embedded into each subject area of private law and tending to favour the application of the lex fori or local law.
In states with a more mature system, the set of Conflict rules stands apart from the local private civil law and adopts a more international point of view both in its terminology and concepts. That and other elements of the Conflict rules are produced supranationally and implemented by treaty or convention.
Because these rules are directly connected with aspects of sovereignty and the extraterritorial application of laws in the courts of the signatory states, they take on a flavour of public rather than private law because each state is compromising the usual expectations of their own citizens that they will have access to their local courts, and that local laws will apply in those local courts.
Such aspects of public policy have direct constitutional significance whether applied in the European context or in federated nations such as the United States, Canada, and Australia where the courts have to contend not only with jurisdiction and law conflicts between the constituent states or territories, but also as between state and federal courts, and as between constituent states and relevant laws from other states outside the federation.
The Status of Foreign Law Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court.
Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional.
The theoretical responses to this issue are: a That each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or b That the local court creates a right in its own laws to match that available under the foreign law.
This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases.
There will be no ratio decidendi that binds future litigants in entirely local cases. In order to understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible to two distinct meanings: On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex fori local law.
On the other hand, it could mean that the rule is being applied to a factual situation that occurred beyond the territory of its state of origin. One can then argue that since the factual situation is within the American territory, where a Kenyan judge applies the American Law, he does not give an extraterritorial application to the foreign rule.
In fact, one can also argue that the Kenyan judge, had he applied Kenyan Law, would be doing so in an extraterritorial fashion. Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori.
Each judge is the guardian of his own principles of ordre public public order and the parties cannot, by their own act, oust the fundamental principles of the local municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases where an application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other territorially limited laws.
In the United Kingdom, in the absence of evidence being led, the foreign law is presumed to be the same as the lex fori. Similarly, judges might assume in default of express evidence to the contrary that the place where the cause of action arose would provide certain basic protections, e.
However, the arbitral award may be challenged in the country where it was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have been applied. If the lex loci arbitri has been ignored, but there was no real and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement is sought may well accept the tribunal's decision.
Harmonization To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. There is a general recognition that there is a need for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale of Goods.
The Hague Conference on Private International Law is a treaty organization that oversees conventions designed to develop a uniform system. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues. The dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has failed to produce a universal system for the common market.
Nevertheless, the Treaty of Amsterdam does confer authority on the Community's institutions to legislate by Council Regulation in this area with supranational effect.
Article would give the European Court of Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in letter. Whether the domestic courts of the Member States would be consistent in applying those letters is speculative. These debates may come into play within the East African Community especially when interpreting the protocol on Common Markets and free movement of persons as envisaged thereunder.
Jurisdiction 3. Introduction Under s 57 1 of the Civil procedure Act, a foreign state may sue in any court of Kenya, provided that state has been recognized by Kenya, and provided the object of the suit is to enforce a private right vested in the head of that state or in any officer of that state in his public capacity. Section 56 of the CPA also provides that alien enemies residing in Kenya with the permission of the President, and alien friends, may sue in the courts of Kenya.
However, no alien enemy residing in Kenya without such permission, or residing in a foreign country, can sue in the Kenyan courts. When two courts are hearing the same dispute they can reach inconsistent decisions. Res judicata provides that a once a case is determined as final, no party to the case can commence another case on the same dispute in another court and only appeal can rise from the case. When a case is pending, no other case on the same issue can be commenced in another court.
Hence, under common law, if a court is seized with jurisdiction by service of process on the defendant in a case involving a foreign element, a defendant who wishes to have the case resolved in another forum may apply for the stay of proceedings.
Under this rule, in appropriate cases, the court will stay proceedings before it to await the outcome of the same case in a foreign court or under foreign arbitration in exercise of case management Reichhold Norway ASA v.
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Applicability of the Rule. A child in conflict with the law is a person who at the time of the commission of the offense is below eighteen years old but not less than fifteen 15 years and one 1 day old. This Rule shall not apply to a person who at the time of the initial contact as defined in Sec.
To determine whether there is a conflict of interest that would prevent you from acting for a client:. Similarly, determine whether you have any personal interests that might affect the duties owed to your client. If so, there is a conflict of interest. If there is a conflict of interest, can you act despite the conflict of interest? If so, you cannot act or continue to act. A client is a person who. A lawyer-client relationship may arise only if there has been a consultation between the lawyer and the client.
Why Ethiopian courts do apply foreign laws to solve conflicts cases; the filing of an application of summons with the court, or if summon is not necessary.
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