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Samuel Thomas
Samuel Thomas

The Conflict Of Laws



Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction.[1] This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case.[2] These issues can arise in any private-law context,[2] but they are especially prevalent in contract law[3][4][5][6][7][8][9][10] and tort law.[11]




The Conflict of Laws



The term conflict of laws is primarily used in the United States and Canada, though it has also come into use in the United Kingdom. Elsewhere, the term private international law is commonly used.[1] Some scholars from countries that use conflict of laws consider the term private international law confusing because this body of law does not consist of laws that apply internationally, but rather is solely composed of domestic laws; the calculus only includes international law when the nation has treaty obligations (and even then, only to the extent that domestic law renders the treaty obligations enforceable).[12] The term private international law comes from the private law/public law dichotomy in civil law systems.[13] In this form of legal system, the term private international law does not imply an agreed upon international legal corpus, but rather refers to those portions of domestic private law that apply to international issues.


Importantly, while conflict of laws generally deals with disputes of an international nature, the applicable law itself is domestic law. This is because, unlike public international law (better known simply as international law), conflict of laws does not regulate the relation between countries but rather how individual countries regulate internally the affairs of individuals with connections to more than one jurisdiction. To be sure, as in other contexts, domestic law can be affected by international treaties to which a country is party.


Alongside domestic developments relating to conflict of laws, the nineteenth century also saw the beginnings of substantial international collaboration in the field. The first international meeting on the topic took place in Lima in 1887 and 1888; delegates from five South American countries attended, but failed to produce an enforceable agreement.[19] The first major multilateral agreements on the topic of conflict of laws arose from the First South American Congress of Private International Law, which was held in Montevideo from August 1888 to February 1889.[19] The seven South American nations represented at the Montevideo conference agreed on eight treaties, which broadly adopted the ideas of Friedrich Carl von Savigny, determining applicable law on the basis of four types of factual relations (domicile, location of object, location of transaction, location of court).[19]


As attention to the field became more widespread in the second half of the twentieth century, the European Union began to take action to harmonize conflict of laws jurisprudence across its member states. The first of these was the Brussels Convention agreed in 1968, which addressed questions of jurisdiction for cross-border cases.[22] This was followed in 1980 by the Rome Convention, which addressed choice-of-law rules for contract disputes within EU member states.[23] In 2009 and 2010, respectively, the EU enacted the Rome II Regulation to address choice-of-law in tort cases[11] and the Rome III Regulation to address choice-of-law in divorce matters.[24]


Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). In the EU, this is governed by the Rome I Regulation. Choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract and will be determined by the law of the state where the choice of law clause confers its competence. Oxford Professor Adrian Briggs suggests that this is doctrinally problematic as it is emblematic of 'pulling oneself up by the bootstraps'.[31]


Conflict of laws has two major divisions, one involving different U.S.-based jurisdictions, and the other crossing international boundaries. These both have grown due to increased travel and technologies.


Caveat: much of conflicts law is taught as a small sub-set of other legal areas. For example, contracts, family law, and corporate law each devote a small portion of their classes to Conflict of Law issues.


Conflict of laws signifies the difference between the laws of two or more jurisdictions that are applicable to a dispute in question. The results of the case depend upon the selection of the law to resolve the dispute. The conflict can be between federal and state laws, among the state laws themselves, or between the laws of different countries.


The primary question that arises in the situation of conflicting laws is: which law should be used in resolving the case? Courts follow a certain process in order to determine the law it would apply in deciding a case. In legal parlance, this process is known as characterization or classification. Courts usually have two choices while determining which law to apply in the case of a conflict:


Federal courts have different rules from those of state courts. That's because the jurisdiction of federal courts is limited by the constitution. Federal courts must follow a complex set of rules for determining the right law to apply in a case of conflicting laws.


The principles of conflict of laws are all the more urgent in the context of the United States since many states have their own laws that are different from the laws of other states. In 1938, the Supreme Court gave a ruling that all federal courts must play by the conflict of laws rules of the state in which they are hearing the case.


If you look at business contracts, you'll find that most of them contain a clause in the miscellaneous section, which either excludes the principles of conflict of laws or specify the conflict of laws principles of a certain state to govern the contract. This provision is usually made to interpret the agreement outside of the state where the cause of action has occurred.


For example, let's say you have made an agreement with a company in California. This may give rise to a cause of action in California. However, you want to apply the laws of Texas to your contract and hence clearly specify that the contract would be governed by the laws of Texas.


Now, most of the states have a law saying that the state where the cause of action occurs will have a jurisdiction over the dispute. Due to this, your contract may be governed by the laws of California despite your express intention to the contrary. To avoid such unintended hardship, contracts usually contain an exclusion clause to expressly nullify the provisions of conflict of laws.


If you need help with conflict of laws principles, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.


This summary is not a substitute for legal advice, nor does it mention every aspect of the law that may apply in a particular situation. Municipal employees can obtain free confidential advice about the conflict of interest law from the Commission's Legal Division at our website, phone number, and address above. Municipal counsel may also provide advice.


The conflict of interest law seeks to prevent conflicts between private interests and public duties, foster integrity in public service, and promote the public's trust and confidence in that service by placing restrictions on what municipal employees may do on the job, after hours, and after leaving public service, as described below. The sections referenced below are sections of G.L. c. 268A.


When the Commission determines that the conflict of interest law has been violated, it can impose a civil penalty of up to $10,000 ($25,000 for bribery cases) for each violation. In addition, the Commission can order the violator to repay any economic advantage he gained by the violation, and to make restitution to injured third parties. Violations of the conflict of interest law can also be prosecuted criminally.


You do not have to be a full-time, paid municipal employee to be considered a municipal employee for conflict of interest purposes. Anyone performing services for a city or town or holding a municipal position, whether paid or unpaid, including full- and part-time municipal employees, elected officials, volunteers, and consultants, is a municipal employee under the conflict of interest law. An employee of a private firm can also be a municipal employee, if the private firm has a contract with the city or town and the employee is a "key employee" under the contract, meaning the town has specifically contracted for her services. The law also covers private parties who engage in impermissible dealings with municipal employees, such as offering bribes or illegal gifts. Town meeting members and charter commission members are not municipal employees under the conflict of interest law.


Regulatory exemptions. There are situations in which a municipal employee's receipt of a gift does not present a genuine risk of a conflict of interest, and may in fact advance the public interest. The Commission has created exemptions permitting giving and receiving gifts in these situations. One commonly used exemption permits municipal employees to accept payment of travel-related expenses when doing so advances a public purpose. Another commonly used exemption permits municipal employees to accept payment of costs involved in attendance at educational and training programs. Other exemptions are listed on the Commission's website. 041b061a72


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