THE FOUNDATIONS OF RULES FOR THE CHOICE OF LAW

Abstract

This article is concerned with the objectives which underlie choice of law rules in the conflict of laws. The discussion will be confined to aspects of contract, tort and marriage law. In the United States, particularly, much is made of the interests which countries or legal systems are said to have in the application of their rules to the question in issue, and, for some, choice of law mainly consists of an investigation into the presence or absence of such interests. It will be suggested, however, that the question of a country or legal system having an interest or concern in its rules being applied really only arises if the purpose of the rules in question is to protect or advance the public interest of that country. As regards such domestic rules, the relevant choice of law rules may well have as their object the protection of the interest of the country concerned. For the most part, however, the purpose of rules of contract and tort, and to some extent of marriage law also, is to do justice to individuals, and as regards those domestic rules, the idea that a country or legal system can have an interest or concern in their application in some cases, but not in others, is misconceived. Similarly, if the policy of a rule is to do justice to parties to a dispute, that policy can tell us nothing about the scope of the rule's application in cases involving foreign elements. Rather, the applicability of such a rule in conflict cases depends on principles of justice germane to the conflict of laws. What we shall be concerned with then is, firstly, to identify the limited areas where the advancement or protection of interests of countries is a factor which influences choice of law rules, and then to see what general principles of justice can be identified as the foundation of choice of law rules.