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CRITICALLY EXAMINE THE VARIOUS THEORIES WHICH UNDERPIN THE

CONFLICT OF LAWS.
The following discussion seeks to bring under a microscopic lens the various theories
involved in the study of the conflict of laws and its role in the legal system of a country.
Lord Nichols of Birkenhead in the case of Kuwait Airways Corporation V Iraqi Airways Co1
stated by way of definition of the concept of conflict of laws that Conflict of Laws
jurisprudence is concerned essentially with the just disposal of proceedings having a foreign
element. The jurisprudence is founded on the recognition that in proceedings having
connections with more than one country an issue brought before a court in one country may
be more appropriately decided by reference to the laws of another country even though those
laws are different from the law of the forum court2.
It is well established in the history books that conflict of laws is necessary as cases involving
foreign elements crop up from time to time due to the increase in relations between persons
of different nations.
Current Doctrines of Conflict of Laws
In this paper, I would be focusing on the current principles of Conflict of Laws from whence
I would further focus on the theories of Acquired or Vested rights, the Local theory, the
American Revolution and the English approach.3
Theory of Acquired or Vested Rights
It originated with Dutch jurist Huber4 and was elaborated by Dicey5 and Beale6. This theory
is based on the principle of territoriality which suggests that a court does not give effect to
foreign law in the application of rules but it merely gives effect to the rights created under
foreign law. In Dalrymple v. Dalrymple7, it was held that the only principle that was
applicable to the case was that the validity of the marriage rights had to be tried by reference
to the law of the country where they had their origin. This was an application of the theory.
The theory had since been heavily criticized although it stresses on the protection of rights.
Professor Willis L.M. Reese stated that the theory of vested rights is dogmatic and doctrinaire
and is professor Beales panacea8. The theory has also been said to assume a very narrow
definition of territorial law and it has also been described as failing to take into account the
underlying policy considerations9.
Cheshire and North conclude that the theory of vested rights is inadequate and analytically
defective. It is however conceded that the theory aided in the development of conflict of laws

[2002] UKHL 19.

th
Dicey & Morris (2000). The Conflict of Laws (13 , Ed.). Collins, L ed. London: Sweet &Maxwell. P.3.
3
As suggested by Cheshire and North.
4
De Conflict Legum
5
Conflict of Laws 5th Ed. Pp 17-43
6
Conflict of Laws pp. 1967-1969.
7
[1811] 2 Hag Con 54
8
[1965] 16 U. T.L.J. 228 at 229.
9
J.G. Castel Conflict of Laws: Cases, Notes and Material
2

rules as it mainly emphasized the need to find solutions to conflict of laws problems and
protect rights.
Local Law Theory
This theory was propounded by Cook10. The theory suggests that the forum does not apply
foreign law but, in applying its own law, can adopt rules identical with or similar to those of
foreign law. The forum as such does not enforce a foreign right but a right created by its own
law. Here the court ascertains the domestic rules of a foreign law which would be applied
domestically to a similar domestic case without reference to its conflict of law rules. It then
incorporates the foreign domestic rule and consequently does not infringe on the principle of
territoriality. However, Castel suggests that in applying this theory and in appropriate cases,
the forum consults foreign law and models or formulates rules based on the foreign rules to
an extent dictated by considerations of special circumstances, convenience and practical
expediency. On the other hand, the theory is criticized as being a sterile truism as it affords
no basis for the system of development of conflict of laws.11 The theory is also said to be
destructive without being constructive as it denies the existence of a general principle
justifying the solution of an issue arising in the municipal courts by reference to a foreign law
rule12.
American Revolution
The American approach to resolving conflict of laws has two general approaches. First is the
use of a rule selection system where the actual rule is considered when applying choice of
rules as opposed to the English system which adopts the jurisdiction selection approach
without consideration of what the rules actually are. The second is the determination of
whether the conflict is a true conflict or a false conflict. In situations where the laws of the
interested states are different and produce different results then there is a true conflict. On the
other hand, in situations where the laws of the interested states do not conflict either because
only one state is interested in having its laws applied to the facts of the case 13or because the
laws of several states are compatible14 then there is a false conflict.
A third possibility has been described as the no interest case 15where a conflict of decisions
allows for different laws from different states to be applied but neither state has an interest in
its law being applied16.
The court determines if there is a true conflict and after that there is a rule selection process.
This rule selection process is based on various philosophies. First is the government interest
analysis which suggests that the rule is based on the policies of the states involved and which
policy any of the states are interested in implementing.
Second is the theory of comparative impairment 17which requires the court to determine
which of the conflicting states interests would be more impaired if its policy were
10

The Logical and Legal Bases of the Conflict of Laws[1924] 33 Yale L.J. 457 and An Unpublished Chapter
of the Logical and Legal Bases of the Conflict of Laws[1943] 3 Ill.L.Rev. 418.
11
Hessel E. Yntema The Historic Bases of Private International Law [1953] 2 Am.J of Comp. Law p.317.
12
Schmittoff A Textbook on the English Conflict of Laws 3 rd Ed. [1954] p.34.
13
Babcock v. Jackson 12 NY 2d 473
14
Scheer v. Rockne Motors Corpn [1934] 68 F 2d 94
15
Currie, Selected Essays on the Conflict of Laws[1963] pp.152-156
16
Hurtado v. Superior Court [1974] 522 P 2d 666.
17
First propounded by Baxter [1969] 16 Stan LR 1.

subordinated to the policy of the other state. It attempts to determine the relative commitment
of the respective states to the laws involved. Third is the principles of preference18 theory
which suggests that the courts develop broad principles of preference which would either
reflect relevant multi-state policies or provide the basis for a reasonable accommodation of
the laws conflicting purposes. It suggests a generalized approach applicable to all cases
having a general pattern of law and fact.
Finally, the interpretation of forum policy 19theory suggests that a court in searching for the
appropriate conflict of laws rule should give pre-eminence to the law of the forum. The
theory suggests that reference to foreign law should only be made in exceptional
circumstances where application of the law of the forum would be unfair to the parties or
contrary to their intention.
I however share the opinion of J.G. Collier20 that it would not be too difficult for a court in
the United States to proceed on the lines suggested by these American writers. That countrys
conflict of laws is in practice very much concerned with conflicts between the laws of the
states of the union. But those laws differ in detail rather than in substance, for they are all but
one derived from the common law. Where they do differ their policies may be ascertainable,
as may the respective interests of the states concerned.
The English Approach
The English choice of law rules have been perceived to be practical and to promote the
purpose of the law which are just and convenience. Hence the English court would enforce
foreign law if the foreign law would provide a solution more just, convenient and more in
accord with the expectations of the parties than the internal laws of England21
But in England, as with most countries, the main concern is with conflicts between the laws
of independent sovereign states, with quite different legal systems in many cases. It is
obvious that the task of an English court in following these doctrines would be very much
more difficult, if not impossible.
Conclusion
A careful analysis and consideration of the theories underpinning the whole legal concept that
is conflict of laws seems to come to an inevitable conclusion that this area of law was
developed in such a way as to promote the ends of justice and also convenience especially in
cases where justice and preferable solutions seemed like far-fetched ideas.

18

Propounded by Cavers [1933] 47 Harv. L.R. 173.

Suggested by Ehrenzweig A Treatise on the Conflict of Laws [1962]
20
rd
Conflict of Laws (2001). 3 Ed.
21
Cheshire and North. Ibid.
19