Dépeçage

By:-
Name- Sanjana Tripathy
5th Year Learner
Symbiosis Law School, Noida

Dépeçage is a French word which means “cutting up, dismembering, carving up.” Legally, it implies the
court’s use of different state laws to different issues in a legal dispute, choice of law on an issue-by-issue
basis. It is a procedure of cutting up a case into individual issues, each subject to separate choice-of-law
analysis. Specifically, the doctrine of dépeçage states that different substantive issues in a tort case may
be settled under laws of different states where the choices which impact decisions contrast.1

Issue-by-issue analysis implies that, if a case (or, to be more precise, a cause of action) includes more
than one issue on which the substantive laws of the involved states conflict, each issue ought to be
subjected to a different choice-of-law analysis. In the event that such an analysis prompts the utilization
of the substantive laws of various states to the distinctive issues, at that point the subsequent phenomenon
is called dépeçage. Thus it is the use of the substantive laws of various states to various issues of a similar
cause of action.

Dépeçage alludes to an idea in the conflict of laws whereby distinctive issues in a specific case might be
governed by the laws of various states. In common law nations, dépeçage is normally used to allude to a
single contract which gives that distinctive parts of the agreement will be governed by various laws.2

The Restatement (Second) of Conflict of Laws made an endeavor to abridge the idea of choice of law in
American courts under "significant relationship test." Section 6 of the Restatement presented the different
contemplations of interest analysis as:3

1. the requirements of the interstate and global frameworks,

2. the pertinent policies of the forum,
3. the pertinent policies of other interested states and the relative interests of those states in the
determination of the specific issue,
4. the protection of justified desires,
5. the essential strategies underlying the specific field of law,
6. certainty, predictability and consistency of result, and
7. ease in the determination and use of the law to be connected.

From the Restatement, Section 145 turned into the communicated language of the principle of depecage.
This section presented this idea as:

1
Christopher G. Stevenson, The Origins of Depecage, Depecage: Embracing Complexity to Solve Choice-of-Law
Issues (26th September, 2018, 1:21pm) https://mckinneylaw.iu.edu/ilr/pdf/vol37p303.pdf.
2
Depecage Law and Legal Definition (28th September, 2018, 11:30am)https://definitions.uslegal.com/d/depecage/.
3
Supra. See note 1.

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 1. The rights and liabilities of the parties regarding an issue in tort are controlled by the local law of
the state which, with respect for that issue, has the most significant relationship to the event and
the parties under the standards expressed in Section 6.
2. Contacts to be considered in applying the standards of Section 6 to decide the law appropriate to
an issue include:
a. the place where the damage happened,
b. the place where the conduct causing the damage happened,
c. the habitation, residence, nationality, place of incorporation and place of business of the
parties, and
d. the place where the relationship, if any, between the parties is focused.

These contacts are to be assessed by their relative significance regarding the specific issue. Consequently,
by calling for the choice-of-law analysis for specific issue and by providing contacts to be taken into
consideration, the Restatement lays a system for the application of dépeçage.

Article 4.2 of the Paraguayan Law, imitating Article 2.2 of the Hague Principles, expresses that the parties
may pick the law relevant to the entire contract or to just piece of it; they may likewise pick diverse laws
related to various parts of the agreement, given that they be plainly recognized. Hence, dépeçage, a
deduction of the gathering self-rule guideline, is unmistakably acknowledged, in accordance with Rome I
(Article 3(1)3) and the Mexico Convention (Article 7). In practice, dépeçage is visit in universal
transactions in regards to circumstances relating to the currency of the contract, or particular clauses
related with the execution of specific obligations, for example, acquiring legislative approvals, and in
addition repayment or obligation statements.4

DRIVING FORCE OF DEPECAGE5

The legal concepts which are the driving force of dépeçage are as follows:-

1. Federalism- When the government was made, certain forces beforehand subject to state expert
were vested in the administrative government. Because each state surrendered similar forces to
the national government, states still had indistinguishable powers after the formation of the
central government. While every one of the states have a similar authority, it was normal that the
states will practice these forces in an unexpected way. The states are permitted without a doubt,
expected to differ on substantive issues. The most important parts of federalism is the that courts
and commentators every now and again have perceived as the fifty state research facilities, which
accommodate the advancement of new social, financial, and political thoughts. Moreover,
federalism safeguards the capacity of residents to learn democratic based procedures through
participation in local government and to administer their local issues. In this way, federalism
improves states' capacity to differ with one another making the environment essential for the
utilization of dépeçage. Federalism and its formation of state power add to choice-of-law issues in
light of the fact that each state is free, and even supported, to build up its very own sovereign
body of law. Be that as it may, courts pay a high cost for federalism in the tremendous test of

4
Jose Antonio Moreno Rodriguez, The New Paraguayan Law on International Contracts: Back to the Past? (26th
September, 2018, 2:08pm) http://www.mondaq.com/pdf/clients/519934.pdf.
5
Supra. See note 1.

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 respecting each state's sovereignty. Legal resources, including time and exertion, are spent
endeavoring to respect each state's sovereignty in deciding whose law will apply. Utilization of
one federal body of law to all multi-state activities would monitor legal resources.

2. Advocacy- The second foundation of dépeçage and advanced decision of law is the idea of
advocacy. An attorney will act with sensible persistence and instantaneousness in representing a
client. Lawyers should tirelessly advocate for their clients. Carrying out this charge regularly calls
for lawyers to battle that one state's law ought to apply over another. If there is a remote
possibility that a more liberal state's law will offer a victim more remuneration, an offended
party's lawyer will regularly seek after the utilization of that state's law. Likewise, a lawyer
defending the defendant will be similarly determined that a more conservative state's law ought to
apply. Along these lines, courts are faced with movements to apply whichever state's law best
helps each party's position. In the event that neither one of the parties cared which state's law
ought to apply, a court's activity in picking pertinent law would be substantially less demanding.

3. Prevention of Forum Shopping- The third driving force of dépeçage and cutting edge choice-
of-law standards is the objective of avoiding "forum shopping." The objective of Erie Railroad
Co. v. Tompkins6, in recommending consistency among government and state courts, was to avert
forum shopping between those court frameworks. While Erie manages 51 state and federal courts,
a similar peril of forum shopping happens among states when a lex fori choice-of-law approach is
utilized. In the event that there were a uniform rule that the law of the forum governs a case, the
issue would emerge that every injured victims would rush to record their case in a court with the
most favourable law for their situation. In this manner, a surge of suit would result in only certain
forums. In the meantime, declining to apply the law of the courts to a cause of action requires
selecting which state's law will apply.

CASE LAWS

Babcock v. Jackson7 was a single-issue conflict therefore the court did not have to turn to dépeçage i.e
applying the laws of two different states. Be that as it may, the court plainly flagged its preparation to take
part in dépeçage by expressing in announcement that it would have applied Ontario law had the issue
identified with the way in which the defendant had been driving his car at the time of the mishap or to the
defendant’s activity of due consideration. Through this proclamation, the court articulated a critical
difference between:

1. issues of conduct regulation, for example, regardless of whether the defendant offended against a
rule of the street recommended by Ontario for drivers generally or whether he disregarded some
standard of lead forced by that purview; and
2. loss distribution issues, for example, the one really involved with Babcock, to be specific,
regardless of whether the plaintiff, since she was a visitor in the defendant’s vehicle, is banned
from recovering damages for a wrong concededly committed.

6
304 U.S. 64 (1938)
7
12 N.Y.2d 473, 484 (1963)

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Receiving the similar difference, the Restatement (Second) adopted the application of laws of various
laws to these two classifications of issues: For instance, a state has an undeniable enthusiasm for directing
the conduct of people inside its region and in giving redress to wounds that happened there. Along these
lines, subject only to special cases, the local law of the state where conduct and damage happened will be
applied to decide if the actor fulfilled minimum guidelines of acceptable conduct and whether the interest
influenced by the actor’s conduct was qualified for lawful protection. Then again, the local law of the
state where the parties are domiciled might be applied to decide if one party is unsusceptible from tort risk
to the next whether a visitor traveler has a privilege of activity against the driver of a vehicle for wounds
endured because of the latter's carelessness or whether tort claims emerging from the damage survive the
death of the tortfeasor. Babcock involved just the latter issue, the visitor traveler's entitlement to sue the
host-driver, and the court connected to it the law of New York, the party's residence. A dépeçage would
have happened if Babcock likewise involved one of the issues portrayed in the principal section of the
above-cited extract—i.e., regardless of whether the driver's conduct abused an Ontario traffic rule and the
court had connected Ontario law to that issue.

In In re Air Crash at Belle Harbor8, the court recognized the principle of depecage i.e. that in a single
action, different states may have different degrees of interests with respect to different operative facts and
elements of a claim or defense.

In In re Air Crash Disaster near Chicago9, applying California choice of law, the Court specifically
affirmed the principle of depeçage stating that critical to conflicts analysis is the notion that must be
examined the choice-of-law rules not with regard to various states’ interest in general, but accurately,
with regard to each state’s interest in the specific question of punitive damages.

CONCLUSION10

In undertaking an issue-by-issue analysis, a court faces much better chances. In fact, the court
risks for all intents and purposes nothing, aside from maybe a couple of long periods of
additional work, by undertaking an analysis that is more probable than the conventional
wholesale analysis to yield more nuanced and individualized answers for dispute cases. It bears
repeating that:

1. issue-by-issue analysis does not generally prompt dépeçage;

2. when it does, the outcome isn't really mixed up or generally problematic; and,
3. when it is, a court can without much of a stretch maintain a strategic distance from it.

While issue-by-issue investigation is for the most part gainful on the grounds that it brings the
required adaptability into the choice-law-process, dépeçage in theory is neither great nor awful,
neither a universal cure nor an abomination. At the point when dépeçage happens and it happens
less regularly than normally expected—it is harmless in many cases and inappropriate in a
couple of cases.
8
2006 U.S. Dist. LEXIS 27387
9
454 U.S. 878 (1981)
10
Symeon C. Symeonides, Issue-by-Issue Analysis and Depecage in Choice of Law (28th September, 2018, 2:30pm)
file:///C:/Users/Lenovo/Documents/untitled%20ssrn.pdf.

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 1. In a few cases (as in Babcock), there is just a single debated choice-of-law issue. In those
cases, the court applies one law, and therefore there is no dépeçage.
2. In different cases, there are at least two debated choice-of-law issues yet the court applies
a similar law to all issues. Once more, there is no dépeçage.
3. In different cases, the court applies the laws of various states to at least two questioned
choice-of-law issues. In those cases, and just in those cases, there is dépeçage. In a
portion of those cases, dépeçage is absolutely unproblematic and harmless in light of the
fact that the applicable laws are totally harmonious.
4. In the remaining few cases, dépeçage might be troublesome, for example, when used to
fragment issues related to a typical reason or to legitimatize a buffet approach which
adjusts only to the advantage of the party picking and choosing.

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