Choice of law rules

Abstract

Introduction As we have seen, conflict of laws deals with cases which involve a foreign element in a number of ways. First, there are rules which decide whether the English court can and should hear a particular dispute. Secondly, there are rules by which the English court will recognise or enforce a foreign judgment. Thirdly, there are choice of law rules by which the English court identifies a system of applicable rules under which the substantive result of the case is determined. These rules may be ones of English law or of a foreign law. In the American case of Loucks v Standard Oil Co. of New Jersey , Cardozo CJ eloquently put it ‘We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home’. Choice of law rules are not generally determinative of themselves, they point to substantive rules which are so determinative. Some domestic English rules are unilaterally applied because their territorial scope requires their application to particular circumstances, even if there is a foreign element to the facts or the parties. These unilateral rules are not generally recognised as choice of law rules but the interpretation of the territorial scope of English rules often requires rather similar techniques to multilateral choice of law rules. It is clear that choice of law rules themselves are rules of English law and the English court in applying foreign law does so in the context of English procedure.