Private International Law Notes

Private International Law

2010

CHOICE OF LAW METHOD (REVISION) FIVE STEP PROCESS 1.

Identification of a conflict of laws

2.

Classification of the subject matter

3.

Classification of substantive or procedural law

4.

Identification of the choice of law rule

5.

Application of the law of the cause

First step is to identify that there are these jurisdictions that are important. The only way you can tell this is if you have some knowledge of the choice of law rules you have to apply  – this is why the process is somewhat circular. Merely identifying those jurisdictions is one thing  – what we are really looking for is a conflict of laws  – those  jurisdictions provide different outcomes. When that occurs, we have a conflict of laws. In a sense if they all do the same thing and apply the lex fori, you are ignoring your choice of law rules. Once you have identified there is a conflict of laws or likely that there is a conflict of laws, the next step is to classify the matter. Classification – trying to narrow the issue down to the point where, associated with that classification is a choice of law rule. Whether you have a rule that is at a sufficient degree of abstraction there is a choice of law rule attached to that. That classification process – sometimes there are alternatives to that level of abstraction. Then have to narrow the issue down to what is actually in dispute between the parties  – and that is what you classify and from that classification you find the choice of law rule. Once you’ve done that, there are other problems. Depecage is a contract ual issue – situation where having

classified the matter as contract you find that there are two different choice of law rules associated with the different classifications but continue with both of those eg formal and essential validity of a marriage. The

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