CONFLICT 1.3 CHOICE OF LAW
QUESTION OF CHOICE OF LAW.
Remember that the court first asks; can we assume jurisdiction? Where the matter falls (substantially and procedurally) within the competence of the court, it can assume jurisdiction. After it has assumed jurisdiction, then it moves to the second question: what law should apply? The court has to choose the most applicable law since conflict of laws seeks to connect persons/cause of action with the most appropriate legal system(s). In answering question 2, (choosing the applicable law) the court goes through the following stages:
- Identifying the foreign element in the case.
- Connecting factors.
:: 1st step: Identifying the foreign element: After the court has assumed jurisdiction over a case, it then has to ascertain whether there is a foreign element in the case. A case is said to have a foreign element where the facts (or some of the facts) occurred in a foreign territory or both/either of the parties are domiciled, resident or were present in a foreign territory. If a foreign element is found, the court then moves to the next stage.
:: 2nd Step: Characterisation/Classification: this involves putting the facts/issue under a subject category of law, like; contract, tort, marriage, and so on. There is no almighty formula that applies to all cases. Look at this scenario:
- Ade, (primarily resident in Lagos), causes a libel to be published in Gambia. Tayo (primarily resident in Ghana) is defamed by the libel.
The characterization/classification of the above fact is TORT… because defamation falls into the subject category of law of Tort.
Look at another scenario: Both Tayo and Zainab are domiciled in Nigeria. They marry in Togo. Their marriage is sought to be nullified on the ground that Zainanb is less than 17years. If (for example) Nigeria’s law forbids marriage to a minor below 18 years but Togo’s Law allows it, what law would apply.
The characterization/classification for the above is MARRIAGE… specifically essential validity of marriage.
:: A problem could arise where the two different countries do not accept the same categorisation. Example the forum law categorises the matter as a tort while the foreign court categorises it as a breach of trust or contract. Do we apply the lex fori or lex causae mode of classification? It has been suggested that where the court is faced with this sort of problem, it should use its discretion.
:: In Machado V Fontes, the double liability rule was applied which requires the act to ground liability in both the lex causea and lex fori. In Re Maldonado, the lex causae was applied. Recent cases have shown the willingness of the courts to apply the substantive law rather than procedural law as was done In Re Cohn, a mother and daughter (both domiciled in England) were killed in an air raid. Unable to ascertain who died first. The presumption of English Law was that the mother died first while the German Law Civil Code presumed that the deaths were simultaneous. English law (being substantive) was applied.
3rd Step:: Connecting Factors: is an attempt to localise the dispute at the state where it occurred. Based on the maxim, Locus regit actum. Utilized to arrive at the applicable law.
:: The lex fori determines connecting factors. Some connecting factors include:
- For contract: the connecting factor is the intention of the parties inferable from their agreement. Where the intention of the parties cannot be discerned, we look for the law that is most connected with the contract.
:: The work of the court is simplified where the parties have already stipulated the law that would govern their dispute-Capital Oil and Access Bank V Coscharis.
:: Lord Wright in Vital Foods V Unus Shipping Company, noted that the express choice of the parties can apply provided it is bona fide, legal and not contrary to public policy.
- For Marriage: For essential validity, the connecting factor is the ante-nuptial domicile of the parties (lex domicili). For formal validity, the connecting factor is the law of the place where the marriage was celebrated (lex loci celebratonis).
:: Take for example: Ade a (Nigerian citizen) marries Zainab a (Ghanaian) in Nigeria. Chinwe challenges the marriage (in the Lagos State High Court) on the ground that it was not celebrated in a licensed place of worship and no notice of the marriage was published.
- The foreign element here is the Ghanaian citizenship of Zainab.
- The classification here is Family Law/Marriage. Since the issue relates to steps/procedures required for the valid consummation of marriage, it is a question of formal validity of marriage.
- The connecting factor for formal validity of marriage is lex loci celebrationis (law of the place where the marriage was celebrated).
- Nigeria was the place of celebration. Therefore, Nigeria’s law would apply.
- For Tort: the connecting factor is generally the law of the place where the tort was committed. Although complexities may arise where the tort is cross-border. For example, we all know that defamation is complete upon publication of the defamatory article. What then happens where the article is published in different countries? We shall discuss this later.
- For Property: the connecting factor is lex situs which shall have different meaning depending on whether the property is moveable or immovable.
- Inheritance/succession: for moveable property, the law of the domicile of the deceased at the time of his death. Where immovable property, the law of the place where the property is situated.
:: Sometimes the application of the connecting factor may direct us to apply forum law. Sometimes it may direct us to enforce a foreign law. Foreign law would not be applied where it is penal, criminal, contrary to public policy, revenue based or where the foreign law is not pleaded and proved by the parties.
PROBLEMS ASSOCIATED WITH DETERMINING APPLICABLE LAW.
- Ren voi.
- Incidental question.
- Time factor.
REN VOI: (Referring back).
:: The forum law (Municipal law) determines the conflict rules.
:: The municipal laws of each country varies, so does their conflict of law rules. As such the connecting factors vary from country to country. For example Nigeria (as with many other common-law countries) uses domicile for essential validity of marriage while many civil law countries like France use nationality. Look at this example:
Where Ade (a Nigerian national domiciled in France) marries his cousin, Cynthia. The marriage was conducted in France. A case for dissolution of the marriage on the ground of consanguinity is brought before the Lagos High Court. SOLUTION:
:: Step 1: the forum court would determine whether it can assume jurisdiction. Yes.
:: Step 2: Identify the foreign element: The foreign element here is the celebration of the marriage in France (i.e. the facts occurred outside Nigeria) and Ade’s foreign domicile (France).
:: Step 3: Connecting factor: the matter relates to essential validity of marriage (consanguinity of Ade and Cynthia) therefore, the connecting factor is domicile.
:: Since Ade is domiciled in France, the French law would apply.
The problem of ren voi comes in here: After the connecting factor has directed us to apply French law, the court has to do one of the following:
- Reject Ren voi: Here, the court applies the internal law of France (applicable in non-conflict situations) to govern the dispute. OR
- Accept Ren voi: Here the court looks at the whole of French law including its conflict rules. French law provides that the law of the party’s nationality applies. Therefore, Nigerian law would apply since Ade is of a Nigerian Nationality.
Ren voi can be accepted by remission or transmission. The above situation is a good example of accepting ren voi by remission. Ren voi can be accepted by transmission where for instance, Ade is a Gambian National, domiciled in France and the suit was instituted in Nigeria. The Nigerian court would first apply French law (being Ade’s domicile) and the French law would tell the Nigerian courts to apply Gambian law (being Ade’s nationality). In such case, Ren voi has been accepted by transmission as French law directed Nigeria to apply the law of another territory that is not Nigeria. OR
- The Nigerian court can decide to handle the case as though it was sitting as the court of the lex causae in the circumstances of the case.
:: In Casdagli V Casdagli, Scruton LJ noted the readiness of the court to accept renvoi by remission or transmission where necessary. However, in Armitage V AG, the English court repudiated the renvoi theory.
The Ren voi doctrine has been praised for preventing forum shopping. Professor Agbede however argues that the ren voi doctrine is frustrating in its application. He suggest the principle of validation which seeks to uphold valid bona fide transactions. This was applied in Collior V Rivaz, Re Duke of Wellington. What this means is that ren voi would be ignored/rejected if the transaction is valid and bona-fide. What is your opinion? Are you in support of the Ren voi theory?
:: Discovered by German Jurist Melchior.
:: An incidental question is an issue that arises incidentally while trying to determine the main issue. Where in the process of answering an issue with a connecting factor, another subsidiary issue arises with its own separate connecting factor.
:: Incidental questions usually crop-up in cases involving validity of marriage, wills and divorce decrees. Take for example;
- Ade is domiciled in Nigeria. Upon his death, the court wants to share his immovable properties in UK. The UK law (being the lex situs) directs that the property be given to his wife. 5 people claim to be Ade’s wife. The incidental question is; “who is Ade’s wife?” In answering this incidental question, the court would look into the essential and formal validity of each marriage which is governed by domicili or lex celebrationis respectively. Thus while determining what law would apply to the distribution of Ade’s property, another question as to the validity of his marriage is thrown up to determine who his wife is.
Do not be confused at this point. Just note that for there to be an incidental question:
- There must be a main question that has its distinct connecting factor.
- There must be a subsidiary question that can be answered by a different connecting factor if it had risen on its own.
- The court can decide to answer the independent question autonomously or surrender it to the law governing the main issue.
- The court’s decision (3 above) should affect the outcome of the case.
Examples of incidental question were seen in Schwebel V Ungar, in determining whether a divorcee woman had the capacity to enter a valid marriage, the incidental question arose as to the validity of her previous divorce decree (which was invalid under Ontario law (lex fori) but valid under law of Israel (lex domicili)). Also in Re Hall, a testator died domiciled in NY. The main question was how to distribute his estate. An incidental question arose as to the legitimacy of the child for the purpose of succession.
Where a foreign law has undergone changes since the facts occurred, should the court apply the law as it was when the facts occurred or should it apply the law as it presently is? The court can:
- Ignore subsequent changes in the law/retrospective legislations. Where the court does so, we can say that time is a factor.
- Recognize changes in the law: In this instance, time is said to not be a factor. Tort is one of the areas where time is not a factor. This was illustrated in Philips V Eyre where Edward John Eyre (ex-governor of Jamaica) passed a retrospective legislation which immunised him from various torts committed during his reign. He was sued in England. The English court held that the case could NOT succeed because of the retrospective legislation immunizing the governor. The court in this case recognized the changes in the law.
The court also held that time was not a factor in Starkowski V AG and the court recognized the retrospective effect of the Australian Law that validated void marriages.
 Place where facts occurred
 Law of the place where the action is instituted.
 Ordinarily, a foreign law would not be applied where it is contrary to public policy.
 Where the case or question before the court relates to things which the parties/marriage must possess. Like; maturity, capacity, consent of the parties, prohibition of consanguinity and affinity (no blood relationship should exist between the husband and wife e.g they should not be siblings) and many other essential requirements.
 Formal validity includes steps and procedures which the parties must follow for the marriage to be validly conducted. Like marriage in an open licensed place of worship, in the presence of witnesses, during permitted hours…
 Here lex situs means the law of the place where the transaction (in relation to the property) took place.
 Here the lex situs is the law of the place where the immovable property (e.g land) is situated/located.
 For example Mr A publishes a libel against B in Brazil. B institutes the action in Nigeria. In Brazil, libel is a crime. In such an instance, conflict of laws backs out since in Brazil, libel is a crime and this subject does not deal with criminal matters.
 Before proceeding, please ensure that you understand what we have discussed so far. Give yourself examples, acquaint yourself with the cases and understand the principles discussed so far.
 Remember that French conflict rules (as with many other civil law countries) provide that nationality shall govern essential validity of marriage. Ade is a Nigerian National. Therefore, Nigerian law would apply.
 Nigerian conflict rules said; “apply French law since Ade is domiciled in France”. Then French law said: “apply Nigerian Law since Ade is a Nigerian National”. Therefore remitting it back to Nigeria.
 We know that the connecting factor for immovable property is the law of the place where the property is located (lex situs).
 As seen above, the main question is what law would apply to the distribution of Ade’s immovable estate in UK (succession to immovable property).
 In the example above, the subsidiary question is validity of marriage (to the 5 women that claim to be Ade’s Wife… whether they were validly married to Ade).
 This question being governed by the law of her domicile.
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