The English conflict of laws is a body of rules whose purpose is to assist an English court to deal with cases tried before it which contain a foreign element. It consists of three main topics: (i) the jurisdiction of an English court, in the sense of its competence to hear and determine a case; (ii) the selection of the appropriate rules of a system of law, English or foreign, which it should apply in deciding a case over which it has jurisdiction (in appropriate cases the English court can apply a foreign law to resolve a legal issue. The rules governing this selection are known as 'choice of law' rules); and (iii) the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitrations. Having established that choice of law rules can lead to the application of either English or a foreign law, this essay will attempt to explain why an English court should solve problems of characterisation by not just applying the only concepts with which it is familiar, namely those of the forum.
[...] In assessing the validity of this marriage, the English court had to classify the issue as being one relating to essentials or formalities.[11] The English court, without any reference to the Argentinean classification of the issue, decided that under English law this was a matter of formal validity an therefore the marriage was valid.[12] The classification of laws as procedural or substantive rules is critical in the conflict of laws because of a clear rule that matters of procedure are governed by the lex fori, as it would not be practicable to expect an English court to carry out trials according to foreign procedures with which it is not familiar, thus a court will apply foreign law only to the extent that it deals with the substance of the case. [...]
[...] This is because no foreign law becomes potentially applicable until there has been a reference to it by an English choice of law rule with an English connecting factor. [1908] P 46. There are two choice of law rules governing validity of marriage: The first means that if the English court has to determine the validity of a marriage, then any rules of the laws of the parties' domiciles which are rules of capacity to marry must be applied. Similarly, the second choice of law rule means that any rules of the law of the country in which the marriage was celebrated which are rules of formal validity are to be applied. [...]
[...] Whenever the doctrine of renvoi is not applied there is a risk that the law being applied is not the same as would actually be applied by the foreign court The short answer to this last point is that one of the main functions of the conflict of laws is to deal legally with just such situations that do not exist in English law; foreign legal concepts cannot be disregarded just because they are unknown to English law. Collier 2004, p.16 This may look like strong support for the lex fori, but it may be doubted whether this is actually what the judge intended. [...]
[...] Only rarely does it confer mandatory status upon its conflicts rules, thus limiting the range of party choice, it is those factors which argue for the application of English law in an English court. English law has opted for what it calls the proper law approach, i.e. the identification and application of the law that has the closest connection with the cause(s) of action. It is accepted that the words have the same apparent spirit as the older approach. In theory, this flexibility will preserve an international outlook and multilateral approach by the courts and the results are not disencouraging.[52] Bibliography Bartin, F., De L'impossibilité d'arriver à la suppression définitive des Conflits des Lois Paris, Clunet pp. [...]
[...] According to this theory the court should characterise the issue in accordance with the categories of its own domestic law, and foreign rules of law in accordance with their nearest analogy in the same law.[22] The main advantage of this approach, apart from simplicity and predictability, is that it enables the English court to maintain control over its own conflicts rules; otherwise, it “would no longer be master in its own home”.[23] It is impossible to be referred to a foreign lex causae other than by means of a choice of law rule and choice of law rules can only be attached to legal categories. [...]
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