Foreign Law in the English Courts : conflict of laws rule

Foreign law:

There are many cases in England where English courts apply a foreign law.

A) Why should English courts apply foreign law?

A German and French being married => foreign situation. They do it in France before the officer, which conditions? Conditions of French law?Or German law?

It’s a case of private international law. In that sort of cases a foreign law may be apply by English Courts when there is a foreign element in the case. How will he determine the law that he should apply?

English courts apply more and more foreign law.

Justification:

• Tolerance and avoidance of injustice. Ex: a French who will marry an Italian and they will get married only in church. They will follow the Italian procedure. They living in France after would they be considered married if they were marry only before the church?
• Comity: doctrine of comity. It says that if I agree to apply foreign law it’s very likely that judges will also accept to apply my law. It’s a reciprocity between states.

B) What is Private international law?

It’s not a body of international law. Almost all its sources come or came from municipal laws. Nowadays, in England the main source of private international law is EU law. It’s becoming more and more international.

Provides mechanisms for determining where legal situations have links to more than 1 legal system:

• – What courts or other authorities should have jurisdiction.
• – What law should apply.
• – What effects should be given to decisions taken abroad.

C) Procedural aspects of the application of foreign law:

It’s not the same for a court to apply foreign law or English law. There is 2 difficulties:

– The court should know that the case has a foreign element. The court itself should ask the question whether or not it should apply foreign law: question which receives different answers in England. In England it is considered if none of the parties invoke the application of the foreign law then the court may be silent and take the case as if it was an international case. Need to plead foreign law.

– English judges may not know all the laws of the world, it’s considered in England that it is to the parties to prove foreign law. Need to “prove” foreign law.

How? Expert witnesses, a lawyer who will call to give a witness, a statement to explain what the sources of law on a specific issue is.

The judge examines the witnesses. In France, this isn’t the case (certificat de coutume). There are different traditions before English courts and French courts. In England, it will be asked to have someone to ask him or her questions.

D) The mean to apply foreign law: the conflict of laws rule:

Binational couple: what are the conditions to be married?

The case law, the doctrine elaborates some specific rules.

Examples of a conflict of laws rule in England:

For capacity to marry: “As a general rule, capacity to marry is governed by the law of each party’s antenuptial domicile” (case law + doctrine). To connect the legal situation, the capacity to marry to one specific legal system. Domicile is a connecting factor; it has been brought by courts and the doctrine that the main important element of the situation of the couple is their domicile before they are getting married. With that rule, then the person who will marry the couple will know which law should be applied. If they aren’t domicile of the same state, it’s the law of Germany for example if they live in Germany.

There are a lot of international contracts. You would have three legal systems if it’s a contract between 3 countries for instance. The conflict of law rules that exist hasn’t been may apply but it’s the law of EU law for Regulation.

• Contract :

– Art 3 Rome I Regulation: the parties may choose the law applicable to their contract. The law may not necessary be linked with the situation. It’s just the wish of the parties.

– Absent such a choice: art 4 of the Rome I Regulation.

“1. To the extent that the law applicable…” Where the seller has his habitual residence. This is how courts may apply foreign law.

Key notions:

– How international law is applied in England.

– How EU law is applied in England.

– The notion of direct effect, (vertical and horizontal) and direct applicability; which acts are concerned.

– Hierarchy of norms (International law, EU law, English Acts).

– The role of the ECHR (convention and case law).

– The application of the Human Rights Act 1998.

– The application of foreign law in England.