TORTS As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two

o conditions must be fulfilled. First, the wrong must be of such character that it would have been actionable if committed in England. Secondly, the act must not have been justified by the law of the place where it was done. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the care of an ordinary statute of limitations, such law is no bar to an action (in Canada); but if the foreign law extinguishes the right, it is a bar (in Canada) equally as if the extinguishment had been by a release of the party, or an action of Canadas legislature. The traditional choice of law rule has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort. [The modern viewcenter of gravityThe local law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort.] Under traditional rules, the law of the place of the wrong governs all substantive issues, but when the defendants negligent conduct occurs in one jurisdiction and the plaintiffs injuries are suffered in another, the place of the wrong is considered to be the place where the last event necessary to make the actor liable occurred. For jurisdictional purposes, tortious misrepresentation, whether fraudulent or negligent, will usually be deemed to be committed in the country where the misrepresentation was received and acted on, because that country is substantially affected by the wrong and the law of that country ought to have been in the contemplation of the wrongdoer. There is little doubt that the extent to which a plaintiffs right of recovery is reduced by the plaintiffs own negligence is a matter of substantive law and so governed by the law that governs the defendants liability, presumably the lex loci delicti. So, if contributory negligence is a complete bar by the lex loci delicti, the plaintiffs cause of action will be defeated. In Canada, it was held that the right to recover a particular head of damage in tort is characterized as an issue of substantive law (and so to be governed, presumably, by the lex loci delicti), whereas an issue of quantification (such as the dollar amount to be awarded for a broken leg or for pain and suffering) is so closely tied to the working of the judicial machinery that it probably should be seen as procedural (governed by the lex fori). Vicarious liability rules are to be characterized as substantive, not procedural.

THE RESTATEMENT (SECOND) OF CONFLICT OF LAWS (PROF. WILLIS L.M. REESE) Choice-of-law principles 1. A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law; 2. When there is no such directive, the factors relevant to the choice of the applicable rule of law include a. The needs of the interstate and international system; b. The relevant policies of the forum; c. The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; d. The protection of justified expectations; e. The basic principles underlying the particular field of law; f. Certainty, predictability and uniformity of result; and g. Ease in the determination and application of the law to be applied. The general principle relating to tort is as follows: 1. The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties; 2. Contacts to be taken into account to determine the law applicable to an issue include: a. The place where the injury occurred; b. The place where the conduct causing the injury occurred; c. The domicil, residence, nationality, place of incorporation, and place of business of the parties; and d. The place where the relationship, if any, between the parties is centered. In personal injuries, the presumptive rule is The local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship to the occurrence and the parties, in which event the local law of the other state will be applied.

SUCCESSION Courts distinguish between administration and succession. Questions of administration are said to be governed by the location of the deceased persons assets, while questions of succession are generally governed by the last domicile of the deceased person. Rules of administration are not uniform and in each jurisdiction the representative is required to administer according to local rules. 1

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Generally, all questions concerning the succession to land are governed by the lex situs. The choice-of-law rules for testate succession are not as simple as those for intestate succession. They start with the same general idea that movables should be governed by the law of the last domicile of the deceased person and immovable by the lex situs. However, these general principles have been modified so that some aspects of testate succession are referable to other laws. The general rule is that foreign personal representatives have no authority to act without a local grant. Academic authorities suggest that personal capacity to make a will disposing of movables should be governed by the law of the testators domicile at the time the will is made rather than the testators domicile at the time of death. Executors and administrators, in the absence of a special statute authorizing it, have no power to sue or be sued by virtue of a foreign appointment as such. Where a foreign executor has brought assets into a state, then as the title is in ___, he can sue as an individual, but not as an executor. Payment to such executor will be an equitable discharge, if the money has been distributed to those entitled. The general rule in England and the USA is that letters granted in one jurisdiction, give no authority to sue or be sued in another jurisdiction, though they may be ground for new probate authority. A foreign probate at the place of domicil has in itself no force or effect beyond the jurisdiction in which it was granted, but on its production fresh probate will be granted thereon in all other jurisdictions where assets are found. The principle is that a grant of power to administer the estate of a decedent operates only as of right within the jurisdiction which grants the letters, and in order that a foreign representative may exercise any such function he must be clothed with authority from the jurisdiction into which he comes, and conform to the requirements imposed by local law. The term foreign as applied to executors and administrators refers to the jurisdiction from which their authority is derived and not to residence. The estate of a deceased person is substantially one estate, in which those entitled to the residue are interested as a whole, even though situated in various jurisdictions, and although each distinct part of it must be settled in the jurisdiction by which letters were granted whether for the purpose of ancillary or principal administration. Ordinarily, it is the practice to recognize the person appointed executor or administrator at the domicil of the deceased as the person to whom ancillary letters will be granted. But there is no privity between persons appointed in different jurisdictions whether they be different or the same.

When any surplus remains in the hands of a foreign or ancillary appointee after the discharge of all debts in that jurisdiction, it is usually, as a matter of comity, ordered to be paid over to the domiciliary appointee; and in his hands becomes applicable to debts, legacies, and expenses. There may be independent wills in different jurisdictions. There is a general rule that testators are presumed to intend their wills to be interpreted by the law of their domicile (when they drafted them). READ: IN THE ESTATE OF MALDONADO (1954) P 223 (CA) IN RE MUSURUS (1936) 2 A11 ER 1666

IMMOVABLES/MOVABLES It is a rule of comity that in matters of succession, movables devolve according to the law of the domicile of the deceased, and immovable devolve according to the lex rei sitae. The general rule is that the courts of a country have no jurisdiction to adjudicate on the right and take to lands not situated within its borders. Only the courts of the jurisdiction in which lands are situated may adjudicate on the rights and title to such lands. READ: BRITISH SOUTH AFRICA CO. V. COMPANHIA DE MOZAMBIG (1893) AC 602 (HL) WAR EAGLE MINING CO. V. ROBO MANAGEMENT CO. (1995) 13 BCLR (3D) 362 It is clearly established by judicial authority and no longer controversial among learned writers that a contract with regard to land is governed by its proper law as defined. A conveyance or transfer of an interest in land, on the other hand, is always governed by the LEX SITUS. If, by a contract made in England, X, a British subject resident in England, agrees to sell French land to A, another British subject resident in England, the contractual relationship between X and A may, and probably will, be governed by English law, but French law will govern the conveyance by the land. A long line of authorities has held that Canadian courts have jurisdiction to enforce rights affecting land in foreign countries IF these rights are based on contract, trust or equity and the defendant resides in Canada. In exercising this jurisdiction, Canadian courts are enforcing a personal obligation between the parties. In other words, they are exercising an in personam jurisdiction. This in personam jurisdiction is an exception to the general rule that Canadian courts have no jurisdiction to decide title to foreign land. The exception recognizes that some claims may have both a proprietary aspect and a contractual aspect. This exceptional in personam jurisdiction will be exercised by Canadian courts only if four criteria are met: 2

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(1) The court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court. (2) There must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it. (3) The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment. (4) Finally, the court will not exercise jurisdiction if the order would be of no effect in the situs The formal validity of a transfer of immovable is governed by the law of the situs. The law of the situs is to govern all questions relating to one partys capacity to transfer immovable. The law of the situs determines all questions relating to the essential validity of a transfer of immovable such as whether an encumbrance on title has been validly created. The validity of a transfer of movables and its effect on the property rights of any person claiming to be interested therein are governed by the law of the country where the property is situated at the time of the transfer (lex situs). If personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere. The validity of a transfer of movable property and its effect on the proprietary rights of any persons claiming to be interested therein are governed by the law of the country where the property is situated at the time of the transfer (lex situs). In case of personal property, the capacity of the parties to a transaction has always been determined either by the lex domicilii or the law of the place of the transaction. A contract void in the place where it is made, by reason of the omission of formalities required by the law of that place, is void elsewhere.

obligation, or document connected with the thing is to be considered an immovable or a movable. CONTRACTS AND RESTITUTION Where a contract is void on the ground of immorality, or is contrary to such positive law as would prohibit the making of such a contract at all, then the contract would be void all over the world, and no civilized country would be called on to enforce it. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice, the parties can select the law applicable to the whole or a part only of the contract. The circumstance that parties agree that any difference are to be settled by arbitration is a certain country may and very likely will lead to an inference that they intend the law of the country to apply. But it is not a necessary inference or an inevitable one though it will often be the reasonable and sensible one. The fact that the parties have expressly chosen to submit their disputes under the contract to a particular arbitral forum of itself gives rise to a strong inference that they intended that their mutual rights and obligations under the contract should be determined by reference to the domestic law of the country in which the arbitration takes place, since this is the law with which arbitrators sitting there may be supposed to be most familiar. The place where the contract was made is not by any means decisive in determining the question of what law is applicable to the contract. The substance of the obligation must be determined by the proper law of the contract, i.e., the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection. No court will give effect to a choice of law if the parties intended to apply it in order to evade the mandatory provisions of the legal system with which the contract has its most substantial connection and which, for this reason, the court would, in the absence of an express or implied choice of law, have applied. The fact that the parties have chosen a foreign law shall not, whether or not accompanied by the choice of a foreign tribunal, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law of that country which cannot be derogated from the contract, hereinafter called mandatory rules. An evasive choice of law is unreal and unreasonable and therefore without effect. Hence, the court will not necessarily regard an express choice of law as being the governing consideration where a system of law is chosen which has no real or substantial connection with the contract looked upon as a whole. 3

READ: REPUBLICA DE GUATEMALE V. NUNEZ (1927) MADEN V. LONG (1983) CENTURY CREDIT CORP. V. RICHARD (1962) In general, the mode of conveying, encumbering, transmitting, devising, and controlling real estate is governed by the law of the place of situation of the property. The law governing the mortgage, as such, is the law of the situs of the land which the mortgage covers; but the debt is governed by the law of the domicil of the party to whom it is due, no matter where the property be situated. The law of a country where a thing is situated determines whether the thing itself, or any right,

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The reason is that the lack of connection may, in a given situation, be evidence of an evasive intent. Since the rules of private international law are usually not of constitutional force, they are subject to being overridden by legislative fiat. The ordinary treatment of foreign contracts (meaning contracts whose proper law is not the law of the forum) is that rules of the lex fori apply to the contract only if the rules are procedural. However, the legislative may choose to depart from the ordinary approach by directing the court to apply a particular substantive rule even to a foreign contract. The legislature will do this if it regards the policy behind the particular rule as important enough to prevail over the more general policies notably party autonomy underlying the rule that the proper law ordinarily governs. A court can apply the law of its own jurisdiction in substitution or supplementation for the proper law of the contract in two circumstances. The first is where the local law is procedural. The second is where the local law, although substantive rather than procedural, is of such a nature that it should be applied. The court has no alternative but to do this where the local legislation specifically states that certain procedures will apply, notwithstanding that the proper law of the contract may indicate otherwise. This sort of provision is referred to by the authorities as a choice of law rule. Where the legislation cannot be characterized as a choice of law rule, the court may nevertheless apply a provision of local law in preference to the foreign proper law of the contract where it is satisfied that it would be contrary to public policy to do otherwise. WHARTON: A contract, so far as concerns its formal making, is to be determined by the place where it is solemnized, unless the lex situs of the property disposed of otherwise requires; so far as concerns its interpretation, by the law of the place where its terms are settled, unless the parties had the usages of another place in view; so far as concerns the remedy, by the law of the place of suit; and so far as concerns its performance, by the law of the place of performance. When the parties expressly agree that the contract shall be subject to a certain law, it has been intimated that the court will give effect to this intention; but no such stipulation will be given effect where it is regarded as against public policy; or where the parties would thereby avoid the provisions of a statute of the place of making. The criterion by which to ascertain whether a particular injury relates to the substance of the contract or the remedy merely is said to be: Suppose the legislature of the locus contractus to enact the law of the forum, making it applicable to the existing contract. If the result is that the obligation of the contract is either increased or impaired thereby, then the point to which the law of the forum relates is part of the obligation or substance of the contract and is not merely a matter

of remedy, and the lex loci, not the lex fori, should control. If, on the other hand, the result is that the obligation of the contract is not at all affected, being neither increased nor diminished, then the inquiry relates to a matter of remedy only, and the lex fori should govern. MARRIAGE AND COHABITATION A legislature as a matter of social policy choose whether and under what circumstances to extend some or all of the attributes of marriage to unmarried couples. Whether a marriage is valid or not usually arises as a preliminary issue in other litigious proceedings. For example, in challenging a will, a legatee may claim that a wife named in a will is not, in fact, the testators spouse; Alternatively, faced with a charge of bigamy, a defendant may seek to impugn the validity of the first marriage as void according to the laws of the country where it was celebrated. There can be no doubt of the general rule that a foreign marriage, valid according to the law of the country where it is celebrated, is good everywhere. But while the forms of entering into the contract of marriage are to be regulated by the lex loci contractus, the essentials of the contract depend upon the lex domicilii (the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.) Although the forms of celebrating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated. Under the common law rule, courts are prepared to recognize ceremonies that are completely alien to those of their own law. For example, marriages by proxy have been upheld where this was allowed under the lex loc celebrationis but not under the law of the domicile. Read: Brook v. Brooks; Re: Hassan and Hassan There are, basically, two alternative choice-of-law rules the dual domicile rule and the intended matrimonial home rule. Under the former, each party is required to be capable of marrying the other according to the law of each partys ante-nuptial domicile. Although this is an onerous rule, it is the one that has been generally preferred by common law courts. According to the latter doctrine, it is the law of the intended matrimonial home that is to govern the capacity of both parties at the time of marriage. 4

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The number of persons cohabiting outside marriage continues to expand in many parts of the world. Nevertheless, the phenomenon of increased cohabitation remains an elusive one, defying generalizations with respect to its characteristic forms, its social causes, and the personal motivations involved. The legal responses to the growth in unmarried cohabitation in different systems remain equally diverse. Registered Partnership Cohabitationfor same sex couples who are debarred from marriage; also for heterosexual couples as an alternative to marriage. Same-sex couples = same-sex partners Common-law spouse = common law partner Read: Toope v. Syvertsen Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law [Wintemute and Andenaes, editors; Oxford; Hart Publishing, 2002]

conditions are met, the Canadian court will not inquire into the grounds on which the foreign court granted the divorce or otherwise look at the merits of the case. Read: Downton v. Royal Trust Co. Knight v. Knight Fromovitz v. Fromovitz Qureshi v. Qureshi Schwebel v. Ungar Rothgiesser v. Rothgiesser NULLITY The distinction between void and voidable marriages continues to retain some importance in resolving questions of nullity jurisdiction and the recognition of foreign nullity decrees. Joint residence is a sufficient basis for the existence of nullity jurisdiction, whether the marriage is void or voidable. Residence of the respondent alone within the state/province at the date of commencement of proceedings is a sufficient basis for jurisdiction. That fact that a marriage was celebrated in a particular country may be sufficient to give the courts of that place jurisdiction to annul the marriage. Read: Sangha v. Mander Easterbrook v. Easterbrook Hutter v. Hutter Gwyn v. Mellin There is a presumption that unproven foreign law is the same as that of the forum. The courts of a foreign country have jurisdiction to pronounce a decree of nullity of marriage if the marriage was celebrated in such foreign country. If a nullity is granted by a Court where one of the parties has a real and substantial connection, the Courts (of England) would now recognize such a decree. Like foreign divorce decrees, a foreign nullity decree can be refused recognition on the ground that it was obtained by fraud or in contravention of the rules of natural justice or even, it appears, on the ground that is would offends notions of substantial justice. Read: Rafferty, Recognition of Foreign Nullity Decrees (1981-82), 46 Saskatchewan Law Review 73 Subject to certain exceptions, a decree of nullity of marriage pronounced by a foreign court of competent jurisdiction will be recognized as binding and conclusive by the (English) court. Such a decree would be recognized if, at the commencement of the proceedings in the foreign country, the parties were residents of such foreign country, and in the case of a void marriage, the marriage was celebrated in the country where the decree was pronounced. A 5

DISSOLUTION OF MARRIAGE AND OTHER UNIONS Generally, the courts of the parties domicile at the time divorce proceedings were commenced has exclusive jurisdiction. [At some time, a married woman necessarily shared her husbands domicile.] The impact of an invalid foreign divorce decree in a subsequent marriage is greatly diminished where legal obligations flow from the fact of cohabitation as opposed to the marital status of the parties. The time-honored rule is that a decree of divorce granted in the country where the parties are domiciled will be recognized as dissolving the marriage. A divorce granted in any of the states (of the USA) must, subject to a few limitations, be recognized in all other states under the full faith and credit clause of the US Constitution. This means that so long as the person was domiciled in one of the United States, a divorce obtained anywhere in the US will be recognized here regardless of which state granted the decree or how short the residence in that state was, because the state of the domicile will be constitutionally bound to recognize it. A foreign divorce can be recognized if an English court could have taken jurisdiction in the same circumstances mutatis mutandis, as the foreign court did. In order for a foreign divorce decree to be recognized in Canada, it must fulfill certain basic conditions beyond simply meeting the requirement of appropriate jurisdiction of the rendering court: the decree must be a final order requiring no further steps to dissolve the marriage conclusively; it must not have been obtained by collusion or fraud; and the proceedings must have conformed to Canadian rules of natural justicefailure to notify the other party will usually prevent recognition. If all of those

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foreign decree of nullity will also be recognized (in England) if the English court would have had jurisdiction in converse circumstances to entertain the proceedings. MATRIMONIAL PROPERTY At common law, the effect of marriage on the parties proprietary rights depended initially on whether they has entered into a valid marriage contract or settlement. If they had, then the rights of the parties in respect of all the property within the contracts ambit would be referred to the terms of the contract, despite any subsequent change in the parties domicile, It is settledthat where there is a marriage contract, the terms of the contract govern the mutual rights of husband and wife in respect of the property affected by the contract which may be then possessed or afterwards acquired. When a marriage contract existsthe rights of the parties cannot be affected by a subsequent change of domicile, but will always be covered by the proper law of the marriage contract or settlement. The foundation for this rule is the principle that a change of domicile cannot affect existing contractual obligations. In the absence of an express marriage contract, there is authority for the view that the parties might be held to have impliedly contracted to adopt the marital property regime of their matrimonial domicile, generally interpreted to be the husbands domicile at the time of marriage. Failing an express or implied marriage contract, the matrimonial domicile governed the spouses rights to each others movables whereas the law of the situs governed their rights to each others immovable. The cases suggest, however, that, as regards movables, the matrimonial regime would vary with a change of domicile save in so far as vested proprietary rights had been acquired under the law of the former domicile. Where matrimonial property proceedings are launched in more than one jurisdiction, questions may be raised as to whether one of the actions should be stayed in the discretion of the court or even whether an anti-suit injunction should be granted to prohibit one of the parties from taking action abroad. The marriage contract will be construed with reference to the proper law of the contract, i.e., in the absence of reason to the contrary, by the law of the husbands actual domicile at the time of the marriage generally denominated the matrimonial domicile. That term means the husbands actual domicile at the time of the marriage, and not the domicile which the spouses may have intended to acquire and did acquire immediately after the marriage. The parties may enter into a contract to be governed by a particular legal regime in order to override the

lex situs choice of law rule. Though the courts of a foreign nation may not have power to adjudicate over land situated in (British Columbia), it is open to the parties to contract to have their rights adjudicated in (British Columbia) according to the law of a foreign system if that be their intention. Read: Tezcan v. Tezcan Devos v. Devos In many jurisdictions, a marriage contract is by no means conclusive and the court retains broad discretionary power to decide property otherwise then in accordance with the agreement.

CHILDREN The attitude of the common law to international disputes over children have been very strongly influenced by the way in which child custody and similar disputes should be resolved at the domestic level, and little influenced by general principles of private international law. It could never be argued that respect for international comity pervaded the rules. The overriding consideration has been that in determining such issues the paramount consideration for the court should be the childs welfare. Although parts of the common law would have seen significant developments in the field of jurisdiction over custody disputes, the choice of law position seems unaffected. The law of the forum is appliedone of the policy justifications for the application of the law of the forum is the fact that substantive family law requires the welfare of the child to be regarded as the paramount consideration. That concern carries over from the substantive law to influence the choice of law decision. Determination of custody is ancillary to divorce. A custody issue should be decided in the state/province with which the children have the closest connection. It is, therefore, possible for the divorce petition and the custody issue to be heard in two different places. Nevertheless, a custody claim must be filed with the court hearing the divorce petition, which then must decide whether a transfer of the custody claim is warranted. Read: Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, 1999) Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children As in many family law areas, choice of law has never been considered relevant in relation to custody rules. The law of the forum applies without fail, the justification being that the interests of the 6

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child, given precedence under substantive domestic law, cannot be superseded by incompatible foreign rules. Jurisdictional rules, including the discretion to decline jurisdiction, will often ensure that the lex fori is the appropriate law. In addition, where custody is decided as an ancillary to divorce, the lex fori rule for divorce is simply carried over. A common law, it is not possible to enforce a foreign custody order; such an order can only be considered by the domestic court as an element to be weighed in the course of a new proceeding to determine custody. [The broad common law jurisdiction to hear applications for custody despite existing foreign orders can lead to conflicting custody orders with all the hardship that such a situation entails.] Adoption is unknown to the common law. As a result, rules governing adoption are exclusively statutory in nature. Intercountry adoption is legally complex not only because the rules of private substantive law governing adoption vary significantly from one country to another, giving rise to problems of private international law questions of jurisdiction, applicable law and recognition of foreign adoptions but also because in many countries intercountry adoption is in addition subjected to various provisions which override those rules of private international law: laws requiring preliminary permission to adopt a child in intercountry cases, immigration laws, nationality laws and others Read: 1965 Hague Adoption Convention and the Inter-American Adoption Convention of 1984

The recognition or non-recognition of foreign adoptions is a question of great practical importance in intercountry adoption in particular because several countries from which many adoptive children come require that the child be adopted in the country of origin either before the child leaves the country or some time thereafter. The field of recognition is characterized by a considerable lack of uniformity. The core problem is the recognition of a foreign adoption order bt persons who are nationals of or domiciled or habitually resident in the country where recognition is sought. All systems agree that the recognitions of the foreign adoption must not be contrary to public policy. Beyond that, they vary considerably both as to the degree of liberalism of their recognition and as to the criteria for recognition. In re Valentines settlement (1965) Ch. 831 (CA) since adoption creates a new status and since questions affecting status are generally determined by the law of the domicile a foreign adoption in order to be recognized everywhere, must be validly created by the law of the domicile of the adopting parent

Some systems tend to see adoption primarily in terms of the relationships it creates and the question then is what law governs its conditions and effects. These systems focus on the question of applicable laws and the problem of the jurisdiction of authorities remains of a subsidiary character. This approach might be called the conflicts approach. Other systems, in contrast, see adoption primarily as a decision of the courts (or administrative authorities) who create a new status by virtue of the power conferred upon them by their own law, the lex fori. Here the question of international jurisdiction is the primary importance, the applicable law being in principle the authorities own law. This might be called the jurisdictional approach. Conflicts approach and the jurisdictional approach may lead to significantly different results. Whereas in the former approach the personal law of the adopters and/or the child are of primary importance, in the jurisdictional approach, even in an international case, the courts will apply their own law, the lex fori. Yet, there seems to be a growing agreement worldwide that whatever choice of law system is preferred, the welfare of the child should be of paramount importance and should temper mechanical application of conflict rules. 7

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