Private International Law/Conflicts of Laws Outline PDF

**Private International Law / Conflicts of Laws** **[The Problem ]** [4 Basic Juridic Assumptions: ] 1. [Institutes of Justinian ] Justice (iustitia) is the set and constant purpose which gives to every man his due as a matter of right (ius suum cuique). [Iustitia, Ius, Iurisprudentia, Iuris]...

**Private International Law / Conflicts of Laws** **[The Problem ]** [4 Basic Juridic Assumptions: ] 1. [Institutes of Justinian ] Justice (iustitia) is the set and constant purpose which gives to every man his due as a matter of right (ius suum cuique). [Iustitia, Ius, Iurisprudentia, Iuris] I.I.1 "Jurisprudence (Iurisprudentia) is the knowledge of things divine and human, the science of the just (Iusti) and the unjust (Iniusti)." I.I.3 "the precepts of the law (Iuris)." I.II.3 "Our law is vpartly written, partly unwritten, as among the greeks. The written law consists of statutes (Lex), plebiscites, senatusconsults, enactments of the Emperors (principum placita), edicts (Edicata) of the magistrates, and answers of those learned in the law (Responsa Prudentium). [An Early Conflict of Laws] I.II.2 "But the law of nations (Ius Autem Gentium) is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature (Iuri Naturali); for by the law of nature all men from the beginning were free born." I.III.2 "...slavery is an institution of the law of nations, against nature subjecting on man to the dominion of another. [Parts of the Law] I.I.4 "The study of law consists of two branches, law public, and law private. \... Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome." I.II.1 "The law of nature is that which she has taught all animals\... Those rules which a state enacts for its own members are peculiar to itself and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations." Parts of Holy Roman Law [Conflict of Laws Possible? No -- Cicero ] Lex is the way to achieve right (ius) and to avoid wrongs (iniuriae). "Law (lex) is highest reason (ratio summa), which orders those things that ought to be done and prohibits the opposite." [Cicero] One right answer to practical questions, the "rule of right and wrong." [Conflict of Laws Possible? Yes -- Aquinas] "Law is an ordinance of reason for the common good, made by him who has care of the community, and promulgated." [Aquinas] Two sources of conflict in law: 1. Human law v. natural law 2. Human law v human law  determination of particular laws from general principles [A Case of Conflict: Pierson v. Post] **[The Ius Gentium]** [Nations and States as Moral Persons] Vattel, Preliminaries §§ 1-3 "Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. "Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.... The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights." [Obligation = Origin of Rights of Nations] Obligation Duty Right - Obligation comes from natural law and from agreement - The law of nations is therefore natural law (necessary *ius gentium*) and customary and positive law (voluntary *ius gentium*) as applied to nations [Necessary Law of Nations] - Internal natural law applies within the moral person/nation and is a matter of conscience - External natural law applies between moral persons/nations and is an objective source of obligation - Perfect right can be coerced - Imperfect right cannot be coerced unless agreed to [Voluntary Law of Nations] 1. Customs ancient usages, binding by tacit consent 2. Treaties conventions expressly agreed to [Conflicts Within the Ius Gentium] 1\. Conflict between voluntary law and law of nature law of nature prevails The right infringed must be necessary, external, and perfect. e.g. just war, Nuremberg 2\. Conflict between voluntary laws Vattel's maxims of interpretation (Chapter XVII) e.g. "It is not allowable to interpret what has no need of interpretation." [Maxims of Interpretations] Goal = uniform and consistent rules and judgments Examples: 1. In all cases where what is barely permitted is found incompatible with what is positively prescribed, the latter claims a preference. 2. The law or treaty which permits, ought to give way to the law or treaty which forbids. 3. the law or the treaty which ordains, gives way to the law or the treaty which forbids. 4. If the collision happen between two affirmative laws, or two affirmative treaties: a. if concluded between the same persons or the same states, that which is of more recent date claims a preference over the older one; b. if made with two different powers, the more ancient claims the preference. 5. Of two laws or two conventions, we ought (all other circumstances being equal) to prefer the one which is less general, and which approaches nearer to the point in question. 6. What will not admit of delay, is to be preferred to what may be done at another time. [Sources of Law ] - Constitution of the United States, Art. I §8 (1789) - "The Congress shall have Power... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...." - Paris Declaration (1856) (U.S. not a party) - Privateering is and remains abolished. - Universal Declaration of Human Rights (1948) (U.S. is a party) - Article 2: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as... national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs\...." - Article 3: "Everyone has the right to life, liberty and security of person." - Article 17(2): "No one shall be arbitrarily deprived of his property." - International Committee of the Red Cross study of customary rules - Rule 146. "Belligerent reprisals against persons protected by the Geneva Conventions are prohibited." [Conflict of Law] **[The Ius Gentium In Practice\ ]** Conflicts Within the Ius Gentium 1\. Conflict between voluntary law and law of nature law of nature prevails The right infringed must be necessary, external, and perfect. e.g. just war, Nuremberg 2\. Conflict between voluntary laws Vattel's maxims of interpretation (Chapter XVII) e.g. "It is not allowable to interpret what has no need of interpretation." [Examples of General Ius Gentium] - State's right of self-defense - Non-territorial seas and oceans in common - Property rights in territorial seas - Safe harbor for ships in distress - Diplomatic immunity - Sole prerogative of the sovereign to coin money - Liberty to issue bills of exchange - Liability to recognize bills of exchange - Private intellectual property rights - Private contract rights - Liability to enforce a contract vested in another county Home Insurance v. Dick - What laws? - What conflicts? - Dick brought corp. to Texas to argue Texas statute Art. 5545 - Federal question jurisdiction - Defendant: No argument of federal law. Only issue of state and local laws. - No one has property right to go into foreign court and demand remedy for infringement. - How resolve? - Why? Swift v. Tyson - What laws? - "Laws of the several states." - Judiciary Act of 1989, sec. 34 - Question of jurisdiction - What conflicts? - It is not a conflict between Miane Law or N.Y. Law. It is general commercial law, therefore question of jurisdiction doesn't matter. - How resolve? - Why? The Amistad Case Whose rights and duties are implicated? - Enslaved men - Captain - Owner of Amistad - Men of Washington; Naval Officers who salvaged ship Art. 3 In Rem action → In Rem of vessel Laws implicated: - Free English Soil - Customary law of salvage - Constitution of the United States article III - Judiciary Act 1789 §34 - Treaty for the protection of property between United States and Spain 1795. - Treaty for the abolition of the slave trade between Great Britain and Spain 23 September 1817 - Contracts and bills of lading → Resolution: They were never property to begin with. [Universal Rule? ] Story, J. in Swift: The general law of the commercial world is that debt is a valid consideration for a note. A good faith holder in due course is unaffected by prior fraud of which he had no notice. Story, J. in Amistad: Nothing is more clear in the law of nations, as an established rule to regulate their rights and duties, and intercourse, than the doctrine, that the ship's papers are but prima facie evidence, and that, if they are shown to be fraudulent, they are not to be held proof of any valid title. **[Territorial Sovereignty and Comity]** [Story and the Comity of Territorial Sovereigns: ] - Denies that any private law is universal → All is voluntary, all obligation is peculiar to territory - Commercial & Maritime Law are universal, everything else is voluntary \*Soverns have no obligation to give effects to other soverns. [Joseph Story's Two Principles: ] → Joseph is minimizing what is universal Personal Rights & In Rem Rights - Sovereignty Principle: "It is plain, that the laws of one country can have no intrinsic force, proprio vigore, except within the territorial limits and jurisdiction of that country." - Comity Principle: "Whatever extraterritorial force they are to have, is the result, not of any original to extend them abroad, but of that respect, which from motives of public policy other nations are disposed to yield to them." [Story's] 1. Every nation possesses an exclusive sovereignty and jurisdiction within its own territory. §18 2. The laws of every state bind directly: a. all property, real and personal, within its territory, b. all persons resident within, c. contracts made within, and d. acts done within. §18 3. No state can bind property not within its territory or persons not resident. §20 4. Every nation has a right to bind its own subjects by its own laws in every other place. §21 5. No nation must respect the laws of another nation governing the other nation's citizens who are no longer resident in that nation. The country where the persons reside may disregard contrary laws of the nation where the residents are citizens. §22 6. Whatever force or obligation a nation's laws have in another depend entirely on the other nation's express or tacit consent. §23 7. A conflict of laws can arise only when the host nation's customary and positive laws are silent. §23 8. In the silence of laws affirming or denying the operation of foreign laws, courts presume their own government's tacit adoption. §38 [Non-Legal Reasons to Recognize Foreign Official Actions ] - Comity between sovereigns - Conclusive obligation of judgments - Federalism - Practical necessities of commercial and maritime trade - Protection for the rights of own citizens [Which of these are entitled to foreign recognition and enforcement?] - Judgments? - Posited enactments? - Customs and usages? - Administrative regulations? Hilton v. Guyot [Four Specification in the U.S. Constitution] - U.S. Const. art. 4 §1: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." - U.S. Const. art. 4 §2 cl. 1: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." - U.S. Const. art. 4 §2 cl. 2: "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." - U.S. Const. amendment 14 §1: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." [Orde of Commercial Travelers v. Wolfe] **[Vested Rights]** [Analysis of a Vested Right] - Any Substantive right (liberty, claim or power) - Immunity from abrogation disability to divest - The law securing the immunity is the law of the place where the right vested. [A.V. Dicey's Principles ] [General] 1. "Any right which has been duly acquired under the law of any civilized country is recognized and, in general, enforced by English courts, and no right which has not been duly acquired is enforced or, in general, recognized by English courts." 2. Exceptions: a. Inconsistent with extraterritorial act of Parliament b. Inconsistent with "policy," "moral rules," or English "political institutions" c. Interference with a foreign sovereign where he is sovereign [Mid-Level ] 3. Jurisdiction obtains if a court can give "an effective judgment." 4. Jurisdiction also obtains over anyone who submits to it. 5. "The nature of a right acquired under the law of any civilized country must be determined in accordance with the law under which the right is acquired." 6. A right dependent on intention is determined according to the law contemplated by the party. [Beale's Simple Secondary Rule] - Torts: the law of the place of injury governs - Contracts: the law of the place of making the contract governs - Real property: the law of the situs governs [Vested Rights in Practice ] - Alabama Great Southern Railroad Co. v. Carroll (Ala. 1892) - Victor v. Sperry (Cal. Ct. App. 1958) - Milliken v. Pratt (Mass. 1878) **[Territorial Sovereignty and Vested Rights in Practice ]** [Comity and Vested Rights Combined] - [Territoriality and Comity] - The laws of every state bind directly: a. all property, real and personal, within its territory, b. all persons resident within, c. contracts made within, and d. acts done within. - Whatever force or obligation a nation's laws have in another depend entirely on the other nation's express or tacit consent. - In the silence of laws affirming or denying the operation of foreign laws, courts presume their own government's tacit adoption. - [Vested Rights] - Torts: the law of the place of injury governs - Contracts: the law of the place of making the contract governs - Real property: the law of the situs governs Sinclair v. Sinclair - What result under Story's doctrine? - What result under Dicey's doctrine? - What result under Beale's doctrine? Toledo Society for Crippled Children v. Hickok Severance of legal from equitable title → a conflict of rules. **[Defenses to Foreign Judgements ]** [Doctrine should apply when...] 1. Where one voluntarily appears, 2. presents his case, and is 3. fully heard 4. In the absence of fraud Public Policy -- Dictates that there be an end to litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. [Which Judgments are Entitled to Full Faith and Credit? ] Two views: 1. Classical jurisprudence (common law, *ius gentium*): All F-1 judgments are binding in F-2 to the extent that they conclusively settle the rights and duties of the parties but no further. 2. Legal Realism (Second Restatement): A F-1 judgment is entitled to enforcement to the extent that it does not interfere with the powers and interests of the F-2 state. [Defense to Foreign Judgments? ] Three views: 1. Classical jurisprudence/vested rights (Dicey, Beale): - A foreign judgment may be collaterally attacked for lack of jurisdiction, lack of finality, or fraud. - Administrative rulings are not judgments 2. Legal Realism (Second Restatement): - A foreign judgment may be collaterally attacked on any ground allowed by the public policy of the forum state. - Administrative rulings may be judgments if courts choose to recognize them as such. 3. Sovereignty/Comity (Joseph Story): All recognition of foreign judgments is done as a matter of comity between co-equal sovereigns. - Doctrine of retortion Elements of F-1 proceedings or judgments to determine whether any of them will preclude F-2 from examining into the jurisdiction of the F-1 court: a. Recital of Jurisdiction b. Recital of the jurisdictional facts in which the jurisdiction was based. c. Recital of a hearing on the jurisdictional facts. d. Opportunity to litigate the jurisdiction facts in F-1. e. Actual contest and litigation of the jurisdictional facts. [F-1 F-2 F-3] In the event of conflicting judgments from different states about the first court's jurisdiction, which judgment is preclusive in a third forum? - American Rule: The later judgment supersedes the earlier judgment. - European rule: The earlier judgment supersedes the later judgment. [Judgment = Final?] - Classical/Vested rights approach → Barber v. Barber (1944) - Whether a judgment is final is determined by the law of the rendering jurisdiction. - A decree is entitled to Full Faith & Credit Clause past due amounts if the past due installments are indefeasibly vested rights, but not if subject to retroactive modification. - A decree is prima facie vested and final. The party challenging its finality bears the burden of proof. Decree -- prospective (may or may not be final. Whether or not it settles the rights of the parties) Judgment -- Retrospective - Sovereignty/Comity approach →*Worthley v. Worthley* (Cal. 1955): Where a foreign decree remains modifiable, the forum court is neither obligated to enforce nor obligated *not* to enforce. - Legal Realist approach → *Light v. Light* (Ill. 1957): Whether to enforce prospective decree is a matter of the forum's "policy considerations." [Fraud as a Defense] - Levin v. Gladstein (N.C. 1906) - Fraud is not a defense to a valid judgment at common law in law, however it is in equity. But enforcement of a fraudulent judgment can be enjoined in equity. - FF&C requires a state to give a judgment the same faith it would be given in the rendering state. - If the foreign rendering state would enjoin a fraudulent judgment then the forum state must allow a fraud defense to the judgment. [Barber v. Barber ] - In 1920 - Judgment in North Carolina for a payment of alimony of \$200 a month, later reduced to \$160 per month. He then stopped payments in 1932. Petitioner filed motion in North Carolina to recover the unpaid alimony which totaled 19,707. 20. Court ruled in favor of petitioner. - Petitioner then brought suit in Tennessee to recover on the judgment thus obtained in north Carolina - They