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INTRODUCTION TO PRIVATEINTERNATIONAL LAWP R I V A T E I N T ER N A T I O N A L L A W“Private international law is the body of principles, rules, and at times, policies that indicate how a foreign element in a legal problem or dispute should be dealt with” Mortensen 2008The common law has traditional...

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Private International Law

2010

INTRODUCTION TO PRIVATE INTERNATIONAL LAW PR IV ATE INTER NATIONAL LAW “Private international law is the body of principles, rules, and at times, policies that indicate how a foreign element in a legal problem or dispute should be dealt with” Mortensen 2008 The common law has traditionally classified multi-state cases as giving rise to one or more of three different issues: 1.

Jurisdiction o

Whether the local court, or ‘forum’, has the power to hear and determine the case, or whether the contacts the case has with another state or country limit or otherwise restrain the forum court’s power or willingness to decide the case

2.

Recognition and enforcement of foreign judgments o

Where the case has proceeded to judgment in the other state or country, whether that judgment can be recognised or enforced in the forum

3.

Choice of law o

Even if the forum court has, and will, exercise the jurisdiction to decide the case, whether it will decide the case in accordance with the law of the forum (lex fori ), or in accordance with the law of the other state or country

o

Is the forum or foreign law to be ‘the law of the cause’ (lex causae) that disposes of the case, and how does the forum court choose one or the other?

o

This question is naturally only important if application of the forum’s law is likely to give a different result to the application of the foreign law – that is, where there is ‘a conflict of laws’

Private international law has its historical development in civil law. Lex fori is the law of the forum and lex causae is law of the cause/law of the matter in dispute. It is sometimes called the dispositive law (as opposed to procedural law.) 1

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The court will still apply its procedural laws as to how the parties come about but it may apply some other law to resolve that dispute eg lex causae is not the law of Qld, it is the law of Indonesia. In Australia, there is a PIL rule which says disputes over real property are to be determined by the lex situs (place where the property is situated). The law where real property is will determine the rights and duties of people who have disputes over rights to property. The mechanism by which the court determines the lex situs is Indonesian law, is private international law.

There is a conflict of laws – two sets of laws and each set would give a different outcome when applied to the facts of the case.

The locus delicti is the place of the tort. Jurisdiction is the first issue that has to be addressed. The first question is can the court which has a foreign element before it addresses that foreign element.

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The choice of law process is the process by which a court decides which of these two competing laws the court will apply to a case. Wherever these torts occur, the law that governs that action are governed by the law where you negligently performed. Forum shopping is not about going and getting a result, but preventing people from transferring actions from one system to another. Lex loci delicti is the law of the place of the tort which governs the law that will be applied. The two jurisdictions that are in conflict are not necessarily two jurisdictions in an international sense. REGIE NATIONAL DES USINES RENAULT SA V ZHANG (2002) 210 CLR 491 

The defendant was Renault (French company), the tort was committed in New Caledonia, and the forum was the NSWSC



Jurisdiction o

P spent some time in hospital in NSW – ongoing medical treatment was sufficient under NSW rules to find jurisdiction



Choice of law (a foreign or interstate law) o

What rule is applied to decide the matter to determine whether Renault was negligent in the manufacture or design?

o 

Not going to turn to NSW law – going to turn to the law of France/New Caledonia

Recognition or enforcement of a foreign or interstate judgment o

If you do apply French law, and the French company is liable, how do you get those damages

o

Assuming that Renault has no assets in NSW, how do you get those damages?

o

Recognition or enforcement of a foreign or interstate judgment 

3

Hoping that a French court would enforce your interstate judgment

Private International Law

CONFLICT OF LAW

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Private international law is not just about a conflict of substantive laws, but also about a conflict between different States’ conflict of law rules ie a conflict of conflict of laws.

Procedural rules will always be the law of the forum/lex fori. There is never a question of a Qld court applying civil procedure laws of California. However, a Qld court may apply foreign substantive law or lex causae. Private international law rules such as lex loci delecti and lex situs are rules of choice of law. Qld court has different procedural rules to a French court and different substantive law, and may also have different private international law rules. RE ANNESLEY; DAVIDSON V ANNESLEY [1926] CH 692 



English testatrix dies while domiciled in France leaving a will (she had property in France) o

Disowned (English) son disputes the validity of the will

o

If the will is invalid she has died intestate

Jurisdiction o

Which State can determine the validity of the will? English or French? Or both? 

May be that the English court has jurisdiction to hear this matter



May also be the case that the French court has jurisdiction to hear this matter 



What happens when two courts both try and address the same matter

Assuming English court only has jurisdiction 

English forum o

Under English law and French law, the will is valid

o

Therefore there is no conflict – no problem

o

However, French law will only deal with 1/3 of the property 

Substantive law of England differs from substantive law of France

o

Applying English law, the son gets nothing, whereas applying French law, the son gets 2/3 of the property



How does the court decide which of the two is going to apply? o

5

Turns to the conflict of law rules/choice of law rules

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Under British law, succession to movables is determined by the domicile of the testatrix ie France

o

Under French law, succession to movables is determined by nationality of the testatrix ie England



Therefore, there is a conflict of substantive law and a conflict of choice of law rules

SOURCE S OF PIL

For the most part, dealing with the common law of Australia. The conflict of law rules do not differ between the states, but the substantive law may. Nielson v Overseas Projects sets the law on how you deal with conflict of conflict of laws. In this case, the HCA elevated the goal of consistency in international litigation over and above all other goals of PIL. Judicial decisions The main source of choice of law rules in Australia remains the common law. Constitutional sources The Commonwealth Constitution includes a number of provisions important to private international law questions within the Australian federation. International conventions PIL is about national law of Australia. Some of this law has its origins in international conventions, and only becomes part of the substantive law of Australia if enacted by legislation. UNDROIT and UNICTRAL try to adopt international conventions that introduce uniform legislation (substantive law). Hague Conventions doesn’t try to introduce uniform substantive laws, it tries to introduce uniform conflict of law rules. Legislation Most of Australia’s PIL is found in the legislation for family law. By looking at the different ways in which PIL is characterised eg common law vs legislation. Scholarly writing Why the courts adopt these rules and why they sometimes have difficulties applying the rules.

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‘MULTISTATE’ OR ‘FORE IGN E LE ME NT’? A conflict of laws – may be State (as in nation State/country) or State (as in constituent element of nations State – Queensland, California, British Columbia). It is the existence of a conflict of laws which calls into question the scope of PIL. Conflict of laws is conflict between two bodies of law. There is no question of the government acting unless they are acting in a private capacity. It may apply between: 

Two nation states (Australia and France) OR



Two constituent components (NSW and Qld or Qld and California) OR



Between a nation state and another nation state’s constituent component (Australia and Quebec)

E NTITIE S FOR PRIVATE INTE RNATIONAL PURPOSE S Australian constitutional powers – federal includes: corporations, insurance, insolvency and marriage eg Federal Marriage Act 1961. However, in the US/Canada, marriage is a state power. There can be a conflict between Federal law and eg Californian law. Australian common law – no conflict possible between States. In interstate cases, the doctrine limits the choice of law method to cases where at least one of the contending laws is of statutory origin. States modify common law eg Civil Liability Act 2003 (Qld). There is conflict only if on a particular matter there is a conflict between, eg a WA statute and Qld statute; WA statute and common law; common law and Qld statute. PRIVATE AND PUBLIC INTE RNATIONAL LAW SUBJECT MATTE R Public international law – the public law eg nation state, human rights, international crime. Private international law – the private law eg obligations (contract, tort and restitution), property (holding, transfer, succession), persons (family law, corporations law, insolvency status), not crime, government or administration. SOURCE Public international law – conventional (treaty) and customary international law (practice of nations). Private international law – the individual nation’s municipal law (Federal or State), though some unification through international treaties eg Hague Convention on Exclusive Choice of Court Agreements OBJE CTIVE S OF PRIVATE INTE RNATIONAL LAW Why does a court ever apply a foreign law – why not simply apply the lex fori? What is the policy/theory underpinning PIL?

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CONSISTENCY The idea that choice of law rules especially are designed to promote certainty, predictability and uniformity in the adjudication of multi-state cases has been an important assumption behind the application of foreign laws and is a central objective of modern conflicts law. Ensuring consistent outcomes in multi-state cases is naturally one aspect of the basic principle of the rule of law that like cases be decided alike. The goal of consistency therefore also aims to minimize the legal significance of the plaintiff’s choice of forum, and so discourages the practice of forum shopping. This involves plaintiffs bringing an action in one court primarily to obtain material benefits that they could not obtain had they sued in a more appropriate court: Perret v Robinson; Stevens v Head. As an objective for conflicts law, the goal of consistency has been dismissed as both unrealistic and, on occasions, subversive of just results in particular cases. PARTICULAR JUSTICE Involves giving effect to the expectations of the parties. The fact that a case heard in the forum has contacts with another country or state, might indicate to the judge that application of the other country’s or state’s law will produce a more just outcome than application of the forum’s. INTE RNATIONAL AND IN TERSTATE COMITY Reciprocity eg respecting that another country has a separate legal system and that legal system will give effect to our laws etc. Recognising that we won’t necessarily apply our laws to solve a dispute. The doctrine of comity was the basis for the application of foreign laws according to Story, but mainly used to emphasise that a form court had no obligation to apply the law o fanother country or state. HILTON V GUYOT 159 US 113 (1894) Comity, in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

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The need for reciprocity as a precondition to the application of a foreign law is questionable because a court does not usually make its own rules dependent on those of other countries. The better approach seems to be that it is a principle which obliges the forum court unilaterally to seek a reasonable accommodation between the interests of the forum and the foreign country, and the mutual interest all countries have in promoting an harmonious international legal order. FEATURE S OF PRIVATE INTE RNATIONAL LAW 1.

The consequences of globalization multistate legal problems are increasingly common

2.

It is inherently and historically complex, with debated theoretical underpinnings

3.

Its rules, as common law rules supplemented with legislative provisions, are in flux

4.

PIL is municipal law, therefore it is not universal, and differs from State to State (including differences in conflict of laws itself – different States may have different ways of addressing a foreign element in legal issues)

5.

Some degree of uniformity is, however, sometimes attempted through international conventions eg Hague Convention on Exclusive Choice of Court Agreements

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JURISDICTION INTR ODUCTION Jurisdiction is the power that a court has to deal with a particular case. However, a court will not necessarily hear a case just because these rules of jurisdiction are satisfied. There are certain multi-state cases a court has no jurisdiction to determine, even when jurisdiction is otherwise established on one of the grounds discussed in this chapter. There are also considerations which allow a court, in the exercise of its discretion, to decline jurisdiction in a multi-state case even though the court still has the right to determine the case.

1.

Jurisdiction at common law o

2.

3.

Very narrow jurisdiction, but nevertheless continues to exist in Australia

Jurisdiction in interstate cases o

Defendant is in another state or territory

o

Special rules about Australia and the legal systems within Australia

Jurisdiction in international cases o

Defendant is outside Australia

JURISD ICTION AT COMMON LAW

1.

The old English system was based on territoriality – the defendant had to be present in the territory of the forum. If the defendant was outside of your territory, you had no jurisdiction even if he was one of your citizens.

2.

The alternative is consent, or if the defendant voluntarily submits to the jurisdiction of the court. There are a number of situations where this may be the case o

Actually not the defendant

o

Alternative forum might be harder on the defendant (assuming the alternative forum has jurisdiction)

o

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Where the defendant can counterclaim

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In sophisticated sales contracts, they can have a choice of forum clause which allows the parties to choose beforehand what forum the dispute will be resolved in. However, just because have submitted in a contract to a choice of forum doesn’t mean the parties have agreed about the choice of law (can have choice of forum clause and a choice of law clause.) CIVIL PROCED URE PROC E SS (TW O STAGE S)

1.

Claim (writ, application, originating summons) issued – when filed and checked in court registry o

The defendant must be within the jurisdiction when the writ is issued: Laurie v Carroll  Separate from issue of serving the writ

2.

Claim served on defendant (respondent) – personally or in case of corporation (delivery to office) o

Jurisdiction is ‘perfected’ when served

o

However, if left when knowing of writ or to avoid service, then jurisdiction is perfected

o

Defendant tagged on flight between Texas and Tennessee when travelling through Arkansas airspace: Grace v Macarthur

o

Only at this stage can a court be considered to have jurisdiction over a defendant

Jurisdiction is perfected only when claim served, as only then can the defendant be said to be under a duty to obey the court’s command to appear before it. When does the defendant have to be in the territory? When summons is issued? When it is served? How long do they have to be in the jurisdiction? What purpose is that person within the territory? LAURIE V CARROLL



Facts o

L based in London, C based in Melbourne

o

Contractual dispute about moneys to come out of a theatrical performance

o

C decided to sue L for some of the proceeds that should have come out of this contract

o

C gets writ issued in Melbourne but discovers that L left Melbourne the day before the writ was issued and went to Sydney

o

L subsequently discovers he is going to be sued by C and before anything can happen he goes back to the UK



o

Writ issued on 14 June but never served on L

o

C tried to obtain substituted service on 21 June

Held o

At common law, at the time the writ was issued L was not in the jurisdiction of the court (had left Melbourne to go to Sydney)

o

Thus when the writ was issued, the court had no jurisdiction over L

o

The court refused substituted service 

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If D isn’t within the jurisdiction when the writ is issued, can’t serve writ

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If L left Australia knowing C would sue, would fall within the court’s jurisdiction 

D must knowingly evade service by leaving the jurisdiction before the writ can be served



Here, the court may order substituted service on the defendant as physical service of initiating process had failed

TE RRITORIALITY – PRE SE NCE W ITHIN JURI SD ICTION The basic rule by which a court’s jurisdiction is established at common law is that the defendant must be amenable to the court’s initiating process. It does not matter that the defendant’s presence there is temporary: Colt Industries Inc v Sarlie. In general the purpose for which the defendant is inside the territorial borders of the forum is irrelevant to the question of juris...