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acts done there; the resulting rights and duties growing out of
these contracts and acts; and the remedies and modes of
administering justice in all cases.
Whatever force and obligation the laws of one country have in
another depends upon the laws and municipal regulations of
the latter; that is to say, upon its own proper jurisprudence and
polity, and upon its own express or tacit consent.
The power of determining whether, or how far, or with what
modification, or upon what conditions, the laws of one state or
any rights dependent upon them shall be recognized in another is
a legislative one. The comity involved is a comity of the states,
and not of courts, and the judiciary must be guided in deciding
the question by the principle and policy adopted by the
legislature.
When a statute or the unwritten or common law of the country
forbids the recognition of the foreign law, the latter is of no force
whatever. When both are silent, then the question arises which
of the conflicting laws is to have effect? Each sovereignty must
determine for itself whether it will enforce foreign law.
It is a principle universally recognized that the revenue laws of
one country have no force in another.
The statute of one state giving right of action to enforce a
penalty have no force in another.
Rights of action arising under foreign bankrupt, insolvent, or
assignment laws are not recognized by a state when prejudicial
to the interests of its citizens.
A remedy special to a particular foreign state is not, by any
principle of comity, enforceable elsewhere and must be applied
restrictively.
Generally, force and effect will be given by any state to foreign
laws in cases where from the transactions of the parties, they
are applicable, unless they affect injuriously her own citiznes,
violate her express enactments, or are contra bonus mores.
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11. In general, the mode of conveying, encumbering, transmitting,
devising, and controlling real estate is governed by the law of
the place of situation of the property. Perhaps an exception may
exist in the case of mortgages. The law governing the mortgage,
as such, is the law of the situs of the land which the mortgage
covers; but the debt is goverened by the law of the domicil of the
party to whom it is due, no matter where the property is located.
12. Bills of exchange and promissory notes are to be governed as to
validity and interpretation, by the law of the place of making, as
are other contracts. The resigdence of the drawee of a bill of
exchange and the place of making a promissory note where no
other place of payment is specified is the locus contractus.
13. A statute of limitations of a foreign state providing that an action
on a note shall be brought within a certain time after the cause of
action accrues, bars the debt itself if not brought within the time
limited, and may be pleaded in bar of an action brought on the
note in another state.
14. Chattel mortgages are valid and duly registered under the laws of
the state in which the property is situated at the time of the
mortgage, will be held valid in another state to which the
property is removed, although the regulations there are different,
and it will be enforced in the state to which the property has
been removed, although it would have been invalid if made in
that state.
15. Questions of priority of liens and other claims are, in general, to
be determined by the lex rei sitae even in regard to personal
property
16. The scope of a marriage settlement made abroad is to be
determined by the lex loci contractus, where not repugnant to
the lex rei sitae.
17. In an action brought in one state for injuries done in another, the
statutes and decisions of the courts of the latter state must fix the
liability.
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Lex Fori
- The law of the country to the tribunal of which appeal is made
- The local territorial law of the country to which a court, wherein
an action is brought , or other legal proceeding is taken, belongs
- The forms of remedies, modes of procedures and execution of
judgements are regulated solely and exclusively by the laws of
the place where the action is instituted
- The lexifori is to decide who are proper parties to a suit
- The lexifori governs as to the nature, extent, and character of the
remedy
- A cause of action arising in one state, under the common law as
here understood, may be enforced in another state where it
would not constitute a cause of action, if the variance in these
laws does not amount to a fundamental difference of policy
- The lexifori decides as to deprivation of remedy in that
jurisdiction
- Where a debt is discharged by the law of the place of payment,
such discharge will amount to a discharge everywhere, unless
such discharge is held by courts of another jurisdiction to
contravene natural justice; it must be a discharge from the debt,
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Lexi Loci
- This may be either lexi locicontractus(the law of the place of
making a contract); lexi loci rei sitae,or lexisitus(the law of the
place where a thing is situated); lex loci actus, or lexactus (the law
of the place where a legal transaction takes place); lex loci
solutionis (the law of the place hwere a contract is performed);
lex loci delicticommissi(the law of the place where a tort is
committed)
- Lex loci contractusis used in a double sense; it is used sometimes
used to denote the law of the place where the contract was
made, and at other times to denote the law by which the contract
is to be governed, which may or may not be the same as that of
the place where it was made
- The validity or invalidity of a contract as affected by the lex loci
may depend upon the capacity of the parties, or the legality of
the act to be done
- The capacity of the parties as affected by questions of minority or
majority, incapacities incident to coverture, guardianship,
emancipation, and other personal qualities or disabilities is, it has
been said to be determined by the law of the place of making the
contract
- The question of disability to make a contract on account of
infancy is to be decided by the lex loci; so, also, as to contracts
made by married women
- Personal disqualification not arising from the law of nature, but
from positive law, and especially such as are penal, are strictly
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If the court finds that the forum state has no interest in the
application of its policy, but that the foreign state has, it should
apply the foreign law
If the court finds that the forum state has an interest in the
application of its policy, it should apply the law of the forum,
even though the foreign state also has an interest in the
application of its contrary policy, and, a fortiori, it should apply
the law of the forum if the foreign state has no such interest
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whether real or personal, within its territory and all persons who
are resident within it, whether natural born subjects or aliens,
and also all contracts made and acts done within it. A State may,
therefore, regulate the manner and circumstances under which
property, whether real or personal or in action, within it shall be
held, transmitted bequeathed, or transferred or enforced; the
condition, capacity, and state of all persons within it; the validity
of contracts, and other acts done within; the resulting rights and
duties growing out of these contracts and acts,; and the remedies
and modes of administering justice, in all cases calling for the
interposition of its tribunals to protect, validate, and secure the
wholesome agency of its own laws within its own domain
No State or nation can, by its laws, directly affect or bind property
out of its own territory, or persons not resident therein, whether
they are natural born subjects or others. It would be wholly
incompatibly with the equality and exclusiveness of the
sovereignty of any nation that other nations should be at liberty
to regulate either persons or things within its territories
Whatever force and obligation the laws of one country have in
another depends solely upon the law and municipal regulations
of the latter; that is to say, upon its own proper jurisprudence
and policy, and upon its own express or tacit consent
Comity
- The assertion that the recognition or enforcement of foreign law
depends upon comity means only that the law of no country can
have effect as law beyond the territory of the sovereign by whom
it was imposed, unless by permission of the state where it is
allowed to operate. The application of foreign law is not a matter
of caprice or option, it does not arise from the desire of a
sovereign to show courtesy to other states. It flows from the
impossibility of otherwise determining whole classes of cases
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Anti-suit injunction
In cases where jurisdiction has been founded as of right, i.e.
where in this country the defendant has been served with
proceedings within the jurisdiction, the defendant may now apply
to the court to exercise its discretion to stay the proceedings on
the ground which is usually called forum non conveniens
o The plea can now be sustained unless the Court is
satisfied that there is some other tribunal, having
competent jurisdiction, in which the case may be tried
more suitably for the interests of all the parties for the
ends of justice
o The question is not one of convenience done, but of the
suitability of appropriateness of the relevant jurisdiction
o In order to justify a stay, two conditions must be satisfied,
one positive and the other negative: (a) the defendant
must satisfy the court that there is another forum to
whose jurisdiction he is amendable in which justice can
be done between the parties at substantially less
inconvenience or expense, and (b) the stay must not
deprive the plaintiff of a legitimate personal or juridical
advantage which would be available to him if he invoked
the jurisdiction of the first court
The law relating to injunctions restraining a party from
commencing or pursuing legal proceedings in a foreign
jurisdiction has a long history. Certain basic principles are now
beyond dispute.
o The jurisdiction is to be exercised when the ends of
justice require it
o Where the court decides to grant an injunction
restraining proceedings in a foreign court, its order is
directed not against the foreign court but against the
parties so proceedings or threatening to proceed
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Jurisdiction in Personam
- The status of an individual is occasionally relevant to questions of
jurisdiction. There are some persons whose status prohibits them
from bringing an action, and there are some whose status confers
immunity from action.
- The standing of an unorganized entity is not regulated by statute,
and so must be resolved by the application of basic conflicts
principles
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discovered and material facts which were not before the former
court and from which are to be deduced the new proposition that
the former judgement was obtained by fraud. The burden of that
issue is upon the defendant, and until he at least gives prima
evidence in support of it, the estoppel stands. [New facts refers
to facts which have come into existence after the foreign
judgement was obtained. Newly discovered facts refers to facts
which existed at the time the foreign judgement was obtained
but were not known to the defendant.]
Canadian courts will not recognize or enforce a foreign law or
judgement or a right, power, capacity, status, or disability created
by a foreign law that is contrary to the forums stringent public
policy, essential public or moral interest or conception of
essential justice and morality. Public policy serves a corrective
junction. Its use is defense
o If a foreign law is to be refused, any effect on public
policy grounds, it must violate some fundamental
principle of injustice, some prevalent conception of good
morals, or some deep-rooted tradition of the forum
Choice-of-Law Methodology
- Choice-of-law principles have traditionally been expressed in
rules that say that a particular type of legal issue is to be
determined according to the internal law of a country with which
the case has a deprived connection. (By natural law means that
the law that applies to a case arising entirely within that country.)
This may be called the classic form of choice-of-law rule because
it has been the basis of both civil and common law systems of
choice of law for the law 150 years. Some examples:
o Formal validity of marriage is governed by the law of the
country in which the marriage is celebrated
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absence of agreement or statutory authority, it is insufficient to
simply place the text of the relevant foreign statute, judicial
decision, or other authority before the court. Written sources and
references are normally admissible only when introduced in
support of evidence of expert witnesses in which event the
passages and references cited by them will be treated as part of
their testimony.
The two classes of expert witnesses: first those who have
practiced or applied the relevant foreign law as lawyers or judges;
and second, law teachers and others whose office or position
require them to have a working knowledge of the relevant
foreign law.
In certain circumstances, the courts will not apply foreign law
even if they are applicable and properly proven; such is the case
when the foreign law is penal in naturea determination made
by the lexfori. Also, courts will neither directly nor indirectly
enforce the revenue laws of another country. A foreign law may
further fail to apply where it is fundamentally offensive to the
public policy of the forum.
Foreign law need not be proved formally if the parties can agree
on its legal effect. Typically, this will be done by an agreed
statement of facts submitted prior to trial but the foreign law can
be admitted, like any other question of fact, at any point in the
proceedings.
Law of Procedure
- It is generally recognized that the law of the forum governs
procedure. The rule is grounded in the pragmatic demands of
administrative convenience, indeed administrative necessity. To
require those involved in the administration if justice to know and
apply a foreign procedural law would result in unacceptable delay
and expense.
The fact that the forum controls its own procedure is approached
traditionally as raising an issue of characterization- which
elements of the lexfori are procedural so as to command
application and which are substantive so as to be excluded;
conversely, which elements of the foreign lexcausae are
substantive so as to command application and which are
procedural so as to be excluded.
There seems to be general agreement that the following issue are
the province of the lexfori: the appropriate court for bringing an
action, the form of the originating process and other pleadings
and the manner and mode of their service; the mode of conduct
of a proceeding generally, including the availability of preliminary
and interlocutory motions and applications; and the availability
and mode of appeal.
The procedural rules of the lexfori may not necessarily be the
same for domestic and private international law cases. The rules
governing service of process are an example. In the absence of a
positive rule to the contrary, service of process on a person
outside the forum does not have to be effected in the manner
required by the law of the place where the service is made.
In some jurisdictions, the rules may authorize service to be
effected either in the manner provided for service within the
jurisdiction or in the manner provided by the law of the place
where the service is made so long as the latter can seasonably be
expected to give actual notice.
One of the eternal truths of every system of private international
law is that a distinction must be made between substance and
procedure, between right and remedy. The substantive rights of
the parties to an action may be governed by a foreign law, but all
matters appertaining to procedure are governed exclusively by
the law of the forum.
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