The Conflict

Of
laws

UNIVERSITY OF TECHNOLOGY, JAMAICA

FACULTY OF LAW

Name: Anwar Wright

ID#: 05-01-442
Professor: Mr. Kest Miller
Date: 14th, march, 2010 (monday)
 The Doctrine of Connecting Factors – Conflict Law

Assignment Two

QUESTION ONE

“A fundamental problem in the conflict of laws is whether the connecting factor

should be determined by the lex fori or the lex causae… it is no longer controversial

among learned writers that the connecting factors should be determined by the lex

fori. Although the reported cases are all concerned with domicile, it may be assumed

that English law has adopted this prevailing opinion, and that, for the purpose of an

English conflict rules, the connecting factor will be determined by English law as the

lex fori.” Per Stoughton J. in Chevron International Oil Co.Ltd. v. A/S Sea Team (The

‘TS Havprins’) [1983] 2 Lloyd’s Report 356 at p. 358.

Using relevant case authorities and opinions of writers, critically discuss the

development of the doctrine of the Connecting Factors in the relation to the above

statement, highlighting the concept of domicile in the English and Commonwealth

Caribbean context.

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 The Doctrine of Connecting Factors – Conflict Law

Introduction
Conflict of laws arises when there is a dispute before a court containing one or more

foreign elements. In a conflict case, once the cause of action is identified the next

stage in the process is that of determining the applicable law. This determination is

made by identifying the connecting factors. In the conflict of law, connecting factors

are facts that provide the nexus between an event, a thing, a transaction, a person, or

an occurrence, on the one hand, and a particular law or jurisdiction, on the other. For

example, in the rule that that the essential validity of marriages are governed by the

law of domicile, domicile is the connecting factor. It provides the link between the

person and the law of the country where the marriage was performed. Connecting

factors can be:

 Domicile (lex domicilii), residence, nationality or place of incorporation of the

parties (lex incorporationis);

 The place of conclusion or performance of the contract (lex loci contractus);

 The place where the tort was committed (lex loci delicti commissi);

 The flag or country of registry of the ship; or

 The ship owner’s base of operations.

 The place where the property is situated (lex situs)

In deciding a conflict case, these connecting factors are heavily considered and

weighed by the courts. Connecting factors are also considered when determining the

circumstances in which the English court should exercise jurisdiction or recognize a

foreign judgment. Many foreign divorces, for example, can be recognized if either

party was domiciled or habitually resident in the foreign country at the date of the

divorce. It is usually the case that rules of substance and not procedure are subject to

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foreign law. The difficulty is however how to determine or classify a rule of substance

and a rule of procedure. Procedural matters include:

 The nature of the remedy

 Method of enforcing a judgment

 The capacity of parties to sue or be sued

 Competence of witnesses to give evidence

 The assessment of damages

 The statutes of limitation

The lex fori is the law administered by the court hearing the case. English law is the

lex fori for an English court. The lex fori reserves for itself the matters of procedure

and excludes them from the lex causae. The lex causae is the law that governs an

issue in conflict of laws. The substantive areas of law, on the other hand, concern the

establishment of the rights and duties of the parties.

Every case is treated on its own merit where relevant connecting factors are assessed

by the courts to determine the lex causae. In this context, the lex fori is a critical

connecting factor particularly in determining matters of procedure stated above.

The problem

The problem, to which this essay question speaks, is clearly illustrated in the

following scenario. It is true that some common connecting factors, such as domicile,

can be interpreted differently in different countries. Consider that the concept of

domicile in the United States is different in meaning from that adopted under English

law. By which law then, should the connecting factor, domicile, be classified when

trying to decide whether a person had acquired domicile in Florida; i.e should the

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connecting factor, domicile, be determined by the lex fori or the lex causae? The

answer according to English law is the lex fori. The rationale for this is that before the

application of any foreign law, English law has to be applied. After using the English

concept of domicile it would not then make sense to decide the same matter again

using the foreign (in this instance, the U.S.) concept of domicile.

Domicile as a connecting factor

Domicile is a very important connecting factor, which provides the link between

a person and a system of law and is normally used in relation to cases concerning

succession to movables and capacity to marry. The Conflict of laws forms part of

English law and as such, English law alone can determine when a foreign law is to be

applied. It can be logically deduced that English law must not only select the

connecting factor, it must also say what it means. Therefore in a situation where both

English and French law use domicile as a connecting factor, but by English law a

person is domiciled in France and by French law in England, an English court will

regard him as domiciled in France.

As per Staughton J,

The proposition that the lex fori determines the connecting factors has two

related but distinct aspects. The first is that the lex fori defines what it means,

e.g. by domicile; the second is that it also determines whether, so defined, the

connecting factor links a given issue with one legal system or with another.

For the purposes of an English conflict rule, English law defines what

domicile means, and also whether a person is or was domiciled in England or

in some foreign country. There is therefore nothing to prevent an English

court from deciding that, for the purposes of e.g. succession of movables, a

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Frenchman domiciled in France has acquired an English domicile of choice,

even though French law may consider that he has not lost his French

domicile.1

In the case of Re Annesley2 X died domiciled in France according to English law.

However, according to French law X had never acquired a domicile there. It was held

that X died domiciled in France. This is also true in a case to determine the situs of

property, for example, a bank account at a Florida bank’s English branch. There can

be no doubt that English law would apply, and the situs would be England, even if by

Florida law it would be Florida.

English courts will normally apply their own rules of domicile to determine where a

person is domiciled, as seen in the case of Re Annesley3. Domicile is the connecting

factor and must be classified according by the lex fori.

Domicile is important in our personal lives. Defined as “Permanent Home”, it plays a

significant role in family and matrimonial property law, laws governing the capacity

of persons to make contract, capacity to make a will, and laws governing taxation.

Some legal writers regard it as the single most important connecting factor in the

Conflict of Laws. Domicile is a personal law concept. The two important principles of

domicile are a domicile of origin with which every person is born, and a domicile of

choice, which can be acquired by residence and an intention to resided indefinitely.

Whilst personal law concepts such as the lex domicilii are important in the context of

family, succession, and property law, it is far less important in the context of

1
Per Stoughton J. in Chevron International Oil Co.Ltd. v. A/S Sea Team (The ‘TS
Havprins’) [1983] 2 Lloyd’s Report 356 at p. 358-359.
2
[1926] Ch 692
3
[1926] Ch 692

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commercial dispute and the law of transaction. In Bodley Head Limited v Flegon4 it

was held that the capacity of a party to contract is governed by the law applicable to

the contract, the lex causase, in preference to the personal law of the parties. In Re

Paine5 on the other hand, the court applied the lex domicilii to determine whether a

child is legitimate or illegitimate.

This illustrates that the law of the forum, lex fori, is not always appropriate, albeit a

very significant connecting factor. Cheshire & North on private international law

states that:

There is not sacred principle that pervades all decisions, but when the

circumstances indicate that the internal law of a foreign country will provide

a solution more just, more convenient, and more in accord with the

expectations of the parties than the internal law of England, the English judge

does not hesitate to give effect to the foreign rules. 6

Nationality as a connecting factor

Although the main personal connecting factor in English law is the lex domicilii (the

law of the domicile), there are two exceptions to this general rule. The first is

nationality, which can only be determined by the actual place of birth. For example, if

a person is alleged to be a French national then his nationality has to be determined by

French law. The second is concerned with jurisdiction. Under section 46 (5) of the

Family Law Act 1986 [UK], a foreign divorce is entitled to recognition on the basis

that one of the parties is domiciled in the country where the judgment is obtained. As
4
(1972) 1WLR 680
5
(1940) CH 46
6
12th edition, p.39

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it concerns the rule, domicile may be classified according to English law or the

country in which the divorce was obtained.

In most civil law systems such as those operating in continental Europe (France,

Germany, Italy, and so on) the test for ascertaining which country a person belongs to,

for the purposes of conflict law, is not domicile but nationality. French law, for

example, would be the most appropriate law to govern the personal transactions of a

French citizen. The use of nationality as a connecting factor, however, is limited in

England. The advantage of using it instead of domicile is that it is easier to identify

one’s nationality that one’s domicile. The disadvantages lie however, in instances of

stateless individuals and persons with dual nationalities. The concept also is not

effective when dealing with composite states that have more than one legal system.

Territorial connection

Where the parties lack territorial connection with the jurisdiction, then prima facie the

lex fori is not appropriate. In De Dampierre v Dampierre7 a husband and wife who

are French nationals, were married in France, lived in London, and later the wife and

child moved to New York. The husband filed for divorce in France and the wife filed

for divorce in England. The husband applied for a stay of the wife’s Petition. The

House of Lords held that the wife’s connection with England was insufficient and in

fact quite tenuous so that there were practically no factors that connected the case

with England. France therefore was the appropriate form to resolve this dispute and

the stay was granted.

Additional expense, delay, and inconvenience

7
[1988] 1 AC 92

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In deciding the appropriate forum, the courts have also attached significant weight to

factors such as additional expense, delay, and inconvenience, including the

availability of witnesses. In Cleveland Museum of Art v Capricorn Art International8,

the state of Ohio in the United States of America was established as the appropriate

forum on the basis that the matter had been on-going there for over two years and that

the defendant had so far spent a large sum in legal costs in those proceeding. In

addition the courts considered that trying the matter in Ohio, USA, was more

convenient for witnesses and that the matter concerned a contract for a loan intended

to be used in connection with an exhibition in the United States of America. The

courts were of the view that bringing an action in England would incur additional

expense, unnecessary delay and great inconvenience.

Lex loci delicti commissi, and language

The place where the events occurred and the language of the documentary

evidence can also be important connecting factors9.

In Re Harrods (Buenos Aires) Ltd10, the claimant, being a minority share holder in a

company which was registered in England but carried on business exclusively in

Argentina claimed that the companies affairs were being conducted in a manor which

was unfair and prejudicial to the said company and sought orders, inter alia, that the

company be wounded up. The English Court of Appeal held that Argentina was the

more appropriate forum because of the substantial connection the case had with

Argentina. In particular, all the relevant events took place there and the language of

all the evidence was Spanish.

8
[1990] 2 Lloyd’s Report 166
9
Principles of conflict of laws by Abla J. Mayss p 27
10
[1992] Ch 72

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In The Albattani11 the court held that since the documentary evidence including the

servayors report was in the English language which would have to be translated into

Arabic for a trial to take place in Egypt, the appropriate forum was England and in

preference to Egypt.

Parker LJ in The Magnum12 stated:

Where the decision depends upon the construction of a document or

documents in one language, and the rival courts whose native language is that

of the document and, on the other hand, courts whose native language courts

whose native language is not that of the document, it is in my view clear that

the matter may most suitably be tired in the former courts. This implies no

criticism whatever of the alternative courts. It merely acknowledges reality.

The true meaning of words in, for example, Spanish or French can, in my view

be better decided in, Spanish or French courts as the case may be than by

English courts.

Residence

In circumstances where the place of residence of a claimant or the place where he

carries on his business is the place where, in a libel action, he wishes to have his

reputation vindicated, this is an important connecting factor, which will determine the

choice of forum.

In Schapira v Ahronson13, a libel was allegedly committed in England by Israeli

11
(1993)
12
(1989) p51
13
[1998] ILPr 587

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newspapers against the claimant who lived and carried-on business in England. As the

Israeli newspapers were aware that their publication would be circulated in England,

the English Court of Appeal held that notwithstanding the much larger publication in

Israel, the claimant was entitled to proceed with his claim in England. England was

considered the most appropriate forum despite the fact that there was a large body of

evidence, which connected the case to Israel.

conclusion
It is evident that the principles relevant to the conflict of laws in English common law

jurisdictions including the Caribbean region seek to characterise issues so arises in

their correct legal category. This is the purpose of choosing the lex causae. Whilst the

concept of the lex domicilii is perhaps the most traditionally and historically

recognised connecting factor in English law and is always determined by the lex fori,

it is clear that the doctrine of the connecting factors is wider than that concept.

Connecting factors are not always appropriately determined by the lex fori. This

determination very often depends on the nature of the case itself and the legal

procedural issues which arise. Indeed it is the case that the lex causae (the applicable

law) more often than not does not determine, nor define, the connecting factor; rather

it is the case that connecting factors determine the lex causae as a matter of necessity.

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References
 C.M.V. Clakson. The conflic of laws. 3rd Edition. New York 2006.

 David McLean and Kisch Beevers. The conflict of Laws. 7th Edition. London

2009.

 Oxford University Press <http://www.oup.com/uk/orc/law/>

 Lloyd’s Law Reports. 1983. Vol. 2

Cases Cited
 Chevron International Oil Co.Ltd. v. A/S Sea Team (The ‘TS Havprins’)

[1983] 2 Lloyd’s Report 356 at p. 358.

 Re Annesley [1926] Ch 692

 Bodley Head Limited v Flegon [1972] 1WLR 680

 De Dampierre v Dampierre [1988] 1 AC 92

 Cleveland Museum of Art v Capricorn Art International [1990] 2 Lloyd’s

Report 166

 Re Harrods (Buenos Aires) Ltd [1992] Ch 72

 The Albattani (1993)

 The Magnum [1989]

 Schapira v Ahronson [1998] ILPr 587

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