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TEXT 4. CONFLICT OF LAWS
Conflict of laws (or international private law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed by parties located in different countries, although the "foreign" element also exists in multi-jurisdictional countries such as the United Kingdom and the United States.
The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as international private law. However, international private law has no real connection with international public law, and is instead a feature of municipal law which varies from country to country.
The three branches of conflict of laws are:
· Jurisdiction – whether the forum court has the power to resolve the dispute at hand.
· Choice of law – the law which is being applied to resolve the dispute.
· Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum.
Terminology
Its three different names – conflict of laws, international private law, and international private law – are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition, such as in the United States, England, Canada, and Australia. International private law (droit international privé) is used in France, as well as in Italy, Greece, and the Spanish and Portuguese speaking countries. International private law (internationales Privatrecht) is used in Germany - along with other German-speaking countries) - and Scotland.
Within the federal systems where legal conflicts among federal states require resolution, as in the United States, the term conflict of laws is preferred simply because such cases do not involve an international issue. 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, however, can be misleading when it refers to resolution of conflicts between competing systems rather than "conflict" itself. The term conflict of laws is usually used by common law countries, while for civil law countries the term international private law is more appropriate. The term international private law was coined by American lawyer and judge Joseph Story, but was abandoned subsequently by common law scholars and embraced by civil law lawyers.