CONFLICT 1.5 LIMITS TO THE APPLICATION OF OTHERWISE APPLICABLE LAWS
Just as the topic sounds… Where foreign law would not apply to govern a case.
- Non-choice areas.
- Exclusion of Foreign Laws.
Areas where the forum law rather than foreign law would apply. They include:
- Matrimonial causes. (Divorce, nullity, separation, maintenance).
- Guardianship, custody and adoption cases.
- Admiralty actions.
- Matrimonial Causes: Remember that this subject is concerned with choosing the most applicable law. Also note that the question of jurisdiction is distinct and different from the question of applicable law.
You may be disappointed to see matrimonial causes under this head. The truth is that matrimonial causes ought not to be a non-choice area because the courts have to choose the law that is most applicable to the parties and facts. However (the reality is that) in matrimonial causes, the question of choice of law has been submerged under the question of choice of jurisdiction. For example, in Le Mesurier V Le Mesurier, it was held that only courts of domicile was competent to grant a divorce decree. Thus only the court of the parties’ domicile can entertain divorce issues. Also, for a party to sue for divorce in Nigeria, he must be domiciled in Nigeria. The Matrimonial Causes Act takes Nigeria as a single domicile. The problem is that all these requirements in turn swallows up the question of choice of law and makes the forum law apply.
- Guardianship, Custody and Adoption Cases: In such cases, rather than being concerned with conflict jargons, the court would apply the law that would be in the best interest of the child/infant that if affected in the case. In essence, the interest of the affected child/infant is treated as paramount.
- Procedure/Procedural Law: Every court of a sovereign state has its own procedure. Such procedure regulates and stabilizes the judicial machinery. Adopting various procedures may lead to a breakdown of the judicial machinery. Therefore, in issues of procedure, the law of the forum would apply. There are certain instances however where procedure and substance go hand in hand like fair hearing (constitution of the courts, hear both sides and so on)…. Non-compliance with procedure may infringe on the substantive right. Don’t worry because in cases like these, the procedures are almost similar worldwide. E.g. the fundamental principles of fair hearing are virtually the same worldwide. What you need to know here is that in issues of procedure, the law of the forum would apply rather than a foreign law.
- Admiralty Actions: An admiralty action is simply an action against a ship. At common-law, such actions are in rem and jurisdiction is assumed once the ship is within the court’s jurisdiction (presence in its harbour). Such admiralty actions/cases are determined by the forum law without recourse to the (foreign law) place where the course of action arose. E.g. in De Tolten, damage was caused by the defendant ship to a Lagos wharf. When the ship arrived Britain, an action was instituted in the British Court’s Admiralty Division. It was held that the British court had jurisdiction because the ship that caused the damage in the Lagos wharf was within its jurisdiction. The British court then went ahead to apply English maritime law to the case without even exploring the possibility of Nigerian law applying.
Unlike in non-choice areas, (where forum law always applies). Exclusion of otherwise applicable foreign law occurs where after assuming jurisdiction, and the choice of law rule indicates that a foreign law should be applied, the court shall decline to apply it for one or more of the following reasons:
- Want of proof/Failure to plead.
- Public Policy.
- That the foreign law is Penal.
- That the foreign law is Revenue based.
- FAILURE TO PLEAD/PROVE: Pleadings simply shows the claims which the claimant is bringing before the court. Foreign laws are regarded as facts thus, in addition to pleading a foreign law, the claimant must prove the foreign law. Failure to prove has the same effect as failure to plead. In Re Duke of Wellington, the court noted that English law would apply to all cases unless a foreign law has been pled and proved. In Aluminium Industrie Vassen BV v. Romalpa Aluminium Ltd, the court applied English law to the contract (notwithstanding that the contract provided that it shall be governed by Dutch law) because the parties failed to plead and prove the Dutch law.
:: A foreign law can be proved by testimonies of experts-Section 68 and 69 Evidence Act. The court can employ statutory and judicial aid to clarify ambiguous testimonies.
:: Section 4(2) of the English Civil Evidence Act provides that a decision applying a foreign law is admissible as evidence in establishing a foreign law in a subsequent case. No similar provision in our laws but the doctrine of judicial precedence would render the previous decision a weighty piece of evidence where a lower court adjudicates-Phoenix Marine Inc V China Ocean Shipping Company. In Szechter V Szechter, although the claimant had pleaded polish law, the expert witness could not prove the Polish law… English law was applied.
:: Note however the provisions of Section 122 (1and2) of the Evidence Act: no state in Nigeria shall treat the law of another Nigerian state as a mere fact this means that laws of sister-states need not be proved. E.g. An Abia state court should not require a Lagos State law to be proved. Same position applies in England… the European community laws do not need to be proved in the UK because it is not regarded as foreign law.
- PUBLIC POLICY.
A foreign law would not be enforced where it is manifestly contrary to the forum law’s concept of morality, decency and justice. “Public policy” is determined by forum rules. The following principles should be noted:
- Public policy is circumstantial, dynamic and flexible in relation to time and territory. For example inter-racial marriages were once prohibited in South-Africa this is no longer the case.
- Public policy is used as a shield (rather than a sword) in denying the application of foreign law-Peer international cooperation V Termider Publishers ltd.
- Public policy remains a creation of common-law notwithstanding statutory interventions.
- Public policy should only be invoked where the foreign law is manifestly contrary to public policy-Section 52 of the English Family Law Act 1986. In Kendal V Kendal, the court noted that “manifestly” connotes that it is a high hurdle to cross.
- The courts must approach public policy with caution and proper consideration to avoid expanding its scope-Kuwait Airways V Iraqi Airways.
- Public policy is an unruly horse with the potential to wreck-havoc in international pastures-Lord Hudson in Boyes V Chaplin.
Examples of foreign laws that have been refused on grounds of public policy include:
- Rules prohibiting inter-racial marriages.
- The rule prohibiting a guilty party to a divorce from remarrying before the innocent party does-Scott V AG.
- Contracts for the sale of a slave-Santos V Lllidge (1860) 8 C.B
- The rule which makes a wife repay the money stolen by her husband in order to save him from criminal prosecution.
- Rules which entitle an illegitimate child to receive maintenance upon the attainment of majority-Re McCartney.
- Rules which encourage undue influence, coercion or duress.
- Clauses on restraint of trade.
- Discriminatory rules on government expropriation of property based on race and religion-Williams Hubert Ltd V W and H Trademarks.
- Fraud, ex turpi causa non oritur delciti. Breach of fiduciary relationship-Duchamps V Muller.
- Refusal to recognise a divorce where such would disentitle the wife from financial reliefs she would otherwise have been entitled to under English law.
Note however that the forum court should not be quick to throw stones at foreign laws-R V Brentwood Superintendent of Marriages ex parte arrears. Recent cases seem to show that public policy shall only be invoked where the enforcement would have harmful effects within the forum. For example, in Cole V Cole and Gooding V Martin, an agreement to oust the jurisdiction of the court was upheld since it did not threaten the forum. Then In Fonseca V Passman, Savage V Macfoy, the court held that foreigners cannot contract customary marriages stating that holding otherwise may have had harmful effects within the forum. Although this case has been criticised.
It has been argued that there are various other concepts that perform the function of public policy like; estoppel, natural justice, unconstitutional acts and so on. Therefore scholars have questioned the relevance of public policy in the light of these viable alternatives.
- PENAL LAWS: Punishment goes with power and sovereignty. As was noted in Re State of Norway’s Application 1 and 2; enforcing a foreign penal law can amount to assisting another state to assert its sovereignty. The courts of one sovereign State would not assist another State to assert its sovereignty nor would it assist it in enforcing penal sanctions-Governor of Libya V Taylor.
:: The Forum Law (Lex Fori) determines whether a foreign law is penal-Huntington V Attrill.
In USA V Ilkley, the US government sought to enforce a Floridian judgment against the defendant in England. The English court in refusing this application noted that the judgment was aimed at enforcing the criminal law. The court noted that we should ask:
- In whose favour? Government or individual?: Where applying the foreign law would benefit a foreign government, it is most likely public/penal.
- What purpose? Where it is for criminal purposes, it is most likely a public/penal law.
- What does the general context of the case suggest?
In Worms V De Valdor, the court refused to accept the foreign law (prodigality order) which disqualified the defendant from managing his own affairs because it was penal in nature. Same position was maintained in Re Selot’s Trust under similar circumstances. Also, in Re Langley’s Settlement Trust, an order declaring a person suffering from multiple sclerosis as incompetent to manage his own affairs was held to be a penalty and unenforceable in another state.
In AG New Zealand V Ortiz, the defendant (contrary to the express prohibition by New Zealand law) exported historic articles from New Zealand. The suit for the recovery of the article was rejected as the forum court noted that the article had crossed boarders and the law prohibiting the export of historic articles is a penal law… therefore it cannot be enforced.
- REVENUE LAWS: as was noted in Regazzoni V Sethia Ltd; English courts do not seat to collect taxes for another country. See also Governor of India V Taylor. Except where in addition to the revenue authorities, there are other individual creditors concerned-Brokaw V Sea Train.
:: The lex fori shall determine whether foreign law is revenue based or not.
- PUBLIC LAWS: the dividing line between public law and penal law is thin. Lord Denning in the AG New Zealand V Ortiz chose to classify the New Zealand law prohibiting the export of historic articles as public law. However, one thing is certain, neither foreign public laws nor penal laws shall be enforced-Re State of Norway’s Application 1 and 2.
In AG UK V Heinemann Publishers Australian Property Ltd, the court dismissed an action instituted by the UK to restrain the publication of “spy catcher” which sought to expose the secret service. Holding that the prohibitory law was public.
 Law of the place where the action is instituted.
 Whether the instant court has the competence/capacity to hear a case.
 The law of the place where the damage was done.