Benefits Of Conflict Of Law

Week 1: The conflict of laws in a commercial context

Discussion Question: Conflict of laws rules and their benefits

The conflict of laws rules enter into play when a case brought before a court involves so-called foreign elements. Before entering into the case itself, the court has to address a series of preliminary issues in order to ascertain which law applied and how to handle the case it is dealing with. The conflict of laws rules are a fundamental pillar of cross-border activities, in that they provide a mechanism to obtain justice in

The main questions to be answered relate to

a) the jurisdiction of the court that is seized with a matter, i.e. is the court competent to rule on the case, and – if the answer to a) is affirmative –,

Hartley provides an interesting overview of the major European systems and their rules for conflict of laws. Whilst some countries regard foreign law as law, others regard it as fact. This distinction will impact the further proceedings. For example, in England, one of the parties has to plead foreign law to be applied; otherwise the courts will apply domestic English law. Once a court has determined the applicability of foreign law to the case in question, it needs to understand and ascertain the elements of the foreign law that are needed, and a similar distinction is made regarding the ascertainment and proof of a foreign law, which can be either entrusted to the parties themselves (e.g. by providing an expert) or it may be a task done directly by the

In an ever more interconnected world, the number of cases involving a foreign element is naturally increasing, both at a private level – individuals might want to work, live, marry abroad – as well as on a business and commercial level – firms and organisations may have activities or offices in several countries, conclude contracts with partners in all parts of the world etc. There are several attempts at international and European level to harmonise the conflict of laws rules of the contracting states, such as The Hague Conference on Private International Law or at EU level, under the Treaty of Amsterdam provisions on justice, in order to further facilitate the resolution of cross-border