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Glossary of Conflict of Laws

Prof. William Tetley
McGill Law Faculty

[ For more on terms appearing in this Glossary, the Reader is invited to consult Glossary of Maritime Law and the Glossary of International Conventions and National Laws. ]


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"Abus de droit" - "Abuse of right". A person may be liable for harm caused by doing something which one, nevertheless, has a right to do, if the right was: a) principally intended to cause harm; b) or was used without a legitimate, interest justifying judicial protection; c) or was used in bad faith; d) or was contrary to basic rules of morality or fairness. See Houle v. Banque Canadienne Nationale [1990] 3 R.C.S. 122, as well as art. 7 C.C. Quebec (1994). See Tetley, Int'l. C. of L., 1994 at pp. 673-675, Tetley, M.L.C., 2 Ed., 1998 at pp. 1049-1089.

"Acta jure gestionis" - "Acts by right of management". Activities of a commercial nature carried out by a foreign State or one of its subdivisions or agencies, which acts are not immune from the jurisdiction and process of local courts under the modern doctrine of restrictive foreign sovereign immunity. See Tetley, M.L.C., 2 Ed., 1998 at pp. 1162, 1184.

"Acta jure imperii" - "Acts by right of dominion". Activities of a governmental or public nature carried out by a foreign State or one of its subdivisions, which qualify for State immunity under the modern doctrine of restrictive foreign sovereign immunity. See Tetley, M.L.C., 2 Ed., 1998 at pp. 1162, 1184.

American conflicts revolution - A period of considerable original legal thought beginning about 1930, when the theory of U.S. private international law changed dramatically, affecting legal theory both within and outside of the United States. See Tetley, Int'l C. of L., 1994 at pp. 9-23, 446-448; Tetley, <# DocLink("canlook.pdf"); #> (1999) 38 Columbia Journal of Transnational Law at pp. 307-322 and available online here

Some of the main theorists associated with the American conflicts revolution were:

· Baxter, W.F., (infra) in 1963, published his theory of comparative impairment, effectively, giving further refinement to the weighing of interests. The objective is not to apply the law that is necessarily suited to the dispute, but rather the law, which, by its application, least impairs the other state's policies. See Tetley, Int'l C. of L., 1994 at pp. 13.

· Beale, Joseph H. (infra) in 1934 was principally responsible for the First Restatement, although a committee did aid in refining it. The First Restatement was generally adopted by the courts and ultimately contested by the scholars, particularly by Brainerd Currie (who espoused governmental interest analysis) and by W. Wheeler Cook and Albert Ehrenzweig (who argued in favour of the lex fori). See Tetley, Int'l C. of L., 1994 at pp. 7, 24, 34, 427.

· Cavers, David F., (infra) in the Choice-of-Law Process (1965), developed the framework for the principles of preference. Tetley, <# DocLink("canlook.pdf"); #> (1999) 38 Columbia Journal of Transnational Law at pp. 307-322 and available online here

· Cook, Walter W. (1873-1943) in 1941 and Albert A. Ehrenzweig in 1967, advocated the single concept that the lex fori provided justice in conflict of law cases. See Tetley, Int'l C. of L., 1994 at pp. 9-10, 24-26.

· Currie, Brainerd, (1912-1965) in Selected Essays on the Conflict of Laws (1963), developed the doctrine of governmental interest analysis. Currie advocated the application, in almost all cases, of the lex fori. He was also instrumental in developing the distinction between true conflicts and false conflicts. See Tetley, Int'l C. of L., 1994 at pp. 12, 24, 40.

· Juenger, F.K. (infra) in 1993 arrived at his own "substantive or teleological approach"- that the proper law be chosen by result-oriented conflict rules, thus attaining a just solution. In effect, Juenger called for "multistate justice" to be "dispensed everywhere, … a new ius commune" to solve conflict of law problems. See Tetley, Int'l C. of L., 1994 at pp. 7, 15-16, 17, 448-449.

· Leflar, Robert A. (infra) in 1966 replaced evaluating each government's interest with a systematic analysis in conflicts of law cases, known widely as the "better rule of law" theory. See Tetley, Int'l C. of L., 1994 at pp. 14.

· Lowenfeld, Andreas F. - See Lowenfeld, Andreas F.

· McDougal, Luther L. (infra) published an article in 1984, in which he went one-step further than LeFlar, in developing the "best law" doctrine. Instead of choosing between two interests, one must "first identify all interests… [being]…the interests asserted by the decision makers of all significantly affected states." McDougal, however, has lately modified his position, leaning towards a more teleological or result-oriented philosophy. See Tetley, Int'l C. of L., 1994 at pp. 15, 448-449.

· Mehren, Arthur T., von (infra) and Donald T. Trautman, in the Law of Multistate Problems (1963), introduced a system of weighing the strengths of conflicting state policies in order to choose the applicable law without Currie`s emphasis on the lex fori. Their theory is best known as functional interest analysis. See Tetley, Int'l C. of L., 1994 at p.13.

· Reese, Willis M., in the Restatement Second (1969), expanded on Morris' "most significant connection", creating a set of multiple rules based on the principle that the applicable law is the law, which has the "most significant relationship". See Tetley, Int'l C. of L., 1994 at pp. 12-13, 24.

· Weintraub, Russell J. (infra) in 1986 went beyond "functional analysis" and evaluating mere interest, in developing abbreviated choice of law rules for both tort and contract. See Tetley, Int'l C. of L., 1994 at pp. 13-14, 448.

"Amiables compositeurs" [Span.: "amigables componedores"] [Ital.: "compositori amichevoli"] [Ge.: "Schiedsrichter"] - Clauses in arbitration (infra) agreements allowing the arbitrators to act as "amiables compositeurs", permit the arbitrators to decide the dispute according to the legal principles they believe to be just, without being limited to any particular national law. The resulting arbitral awards are frequently based on equity (infra) or on the lex mercatoria (infra). The arbitrators are authorized, as "amiables compositeurs", to disregard legal technicalities and strict constructions which they would be required to apply in their decisions if the arbitration agreement contained no "amiable compositeur" clause. "Amiable compositeur" clauses in arbitration agreements are expressly permitted by art. 28(3) of the UNCITRAL Model Law on International Commercial Arbitration 1985 (infra), as well as in both domestic and international arbitration procedures. See for example, the New Code of Civil Procedure (France), arts. 1474, 1495 and 1496, and the Québec Code of Civil Procedure, art. 944.10. See also Art. 1054(2) of the Netherlands Arbitration Act; Art. 182 of the 1987 Swiss Law on Private International Law; Art. 28(1) of the 1993 Russian Law on International Commercial Arbitration; Art. 834(1), Part I, of the Italian Code of Civil Procedure; § 1051(1) of the German Code of Procedure; and the U.K. Arbitration Act 1996, c.23, sect. 46 (1)(b). In common law jurisdictions, conversely, "equity clauses" of any sort are often regarded as suspect. See Tetley, Int'l. C. of L., 1994 at pp. 160, 414; Tetley, "The General Maritime Law - The Lex Maritima" (1994) 20 Syracuse J. Int. L. & Comm. 105-145 at pp. 137-138; reprinted in [1996] ETL 469-506 at pp. 499-500.

Ancillaries - Ancillaries in the conflict of laws are the time limitations, cross-defenses, rules of evidence, presumptions, burdens of proof, order of proof, etc., which affect or qualify the legal relationship. They were classically deemed procedural (and thus of the forum) but, in reality, ancillaries have a proper law of their own, which is often the proper law of the contract or tort/delict to which they are connected, but not necessarily so. See Tetley, Int'l C. of L., 1994 at p. 48.

Anti-suit injunction - An extraordinary procedure where a court issues an order to the effect that proceedings in a second jurisdiction should not proceed. The injunction is usually 1) based on the principle of forum non conveniens (infra); and requires 2) that the first court is more convenient to the parties; 3) a motion of forum non conveniens has been made in the second jurisdiction and has failed; and 4) that the complainant will not be unduly disadvantaged by proceeding in the first jurisdiction. Examples of the injunction are cases where real (immoveable) property in the first jurisdiction is involved or where there is a jurisdiction or arbitration clause calling for proceedings in the first jurisdiction or where a law of the first jurisdiction specifically forbids suit on a certain subject, e.g. claims for damages caused by asbestos produced in the first jurisdiction. See Amchem Products v. B.C. Workers [1993] 1 S.C.R. 897; Opron Inc. v. Aero Systems Engineering, Quebec Superior Court (February 11, 1999, 500-05-043288-982); Donohue v. Armco Inc. [2002] 1 Lloyd's Rep. 425 (H.L.). 

Approaches to the Conflict of Laws - Instead of the classic chronological, historical approach to private international law, W. Tetley has divided conflict of law theory into five theoretical approaches: 1) single concepts (single principles) e.g. Napoleon (infra), Mancini (infra); 2) multiple numbered rules (infra) e.g. Restatement (Second) (infra), Dicey & Morris (infra); 3) general texts (infra) e.g. Scoles & Hay (infra), Sykes & Pryles (infra); 4) national legislation and international conventions (e.g. Rome Convention 1980, Quebec Civil Code 1994, Book X; 5) methodologies (infra) e.g. Tetley (infra).

Arbitral Award - The decision reached by arbitrators in an arbitration (infra).

Arbitration - The settling of disputes between parties who agree not to go before the courts, but rather agree to accept as final the decision of experts of their choice, in a place of their choice, usually subject to laws agreed upon in advance and usually under rules which avoid much of the formality and niceties of proof and procedure required by the courts. See Tetley, Int'l. C. of L., 1994 at pp. 389-419.

Arbitration agreement - The agreement concluded between parties, providing for the submission of their dispute to arbitration, usually in a particular place, under a particular law governing the dispute along with rules of procedure governing the appointment of arbitrators and the arbitration process. The law applicable to the arbitration agreement, the laws applicable to the subject of the dispute, the law of the arbitral proceedings and the applicable conflict rules may all be different, each having a proper law of its own. See Tetley, Int'l C. of L., 1994 at pp. 400-410.

Arbitration Clause - A clause in a bill of lading, a waybill, a charterparty or other contract, providing that any dispute arising under the contract shall be submitted to arbitration (supra) before one or more arbitrators, in the place and according to the laws and rules specified in the clause. See Tetley, M.C.C., 4 Ed., 2008 at pp. 1417-1496. For a suggested arbitration clause, see Tetley, Int'l. C. of L., 1994 at pp. 411-412.

Arbitration Exception - An exception to the principle of foreign sovereign immunity found in the Foreign Sovereign Immunities Act of the United States (28 U.S. Code 1330, 1332(a), 1391(f), 1441(d), 1602-1611 (1976)), whereby the foreign sovereign is not immune from jurisdiction in any case in which the action is brought to confirm an arbitral award if the arbitration agreement or arbitral award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards. See 28 U.S. Code 1605(a)(6)(B).

Attachment [Span.: "detención" or "inmovilización"] [Ital.: "sequestro"] [Gr.: "Beschlagnahme"] - The term used in the United States for the procedure known in French in civil law jurisdictions as the "saisie conservatoire" (infra). See Supplemental Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims and the "general maritime law" of the United States. In the U.S., Rule B attachment, joined to an action in personam, permits specified assets of the defendant (real or personal, moveable or immoveable) to be seized by the court at the beginning of the saisie conservatoire or during a suit, as security for the plaintiff's claim, in cases where the defendant cannot be found in the judicial district concerned. See Tetley, M.L.C., 2 Ed., 1998 at pp. 938-941; Tetley, Int'l. M. & A. L., 2003 at pp. 408-409.

The attachment has also existed under Roman-Dutch law in South Africa since November 1, 1983. See Shipping Corp. of India v. Evdomon Corp. 1994 (1) SA 550 (App. Div.).

"Audi alteram partem" - "Hear the other party", a principle of natural justice requiring that the parties to a dispute be given adequate notice and an opportunity to be heard. See Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. [1997] 3 S.C.R. 1278, (1997) 153 D.L.R.(4th) 577, (1997) 220 N.R. 321 (Supr. Ct. of Can.).

Avoidance of the law - In the conflict of law, the intentional arrangement of connecting factors (contacts) (infra) in an agreement, usually by equal bargaining parties, for a legitimate purpose, in order to ensure the applicability to the agreement of a particular law or jurisdiction. The opposite of evasion of the law ("fraude à la loi"), (infra). See Tetley, Int'l C. of L., 1994 at pp. 139-140, 146, 154, 156, 158, 172.


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Batiffol, Henri (1905-1989) - See Batiffol & Lagarde (infra).

Batiffol & Lagarde, Droit International Privé, 8 Ed., 1993 - A leading French text on the history of private international law. See The Third Approach (infra); Tetley, Int'l C. of L., 1994 at pp. 7, 25.

Baxter, William F. (1929-1998) See American conflicts revolution (supra); see also Baxter, "Choice of Law and the Federal System" (1963) 16 Stan. L. Rev. 1.

Beale, Joseph Henry (1861-1943) See American conflicts revolution (supra); Vested Rights (infra); see also Beale, A Selection of Cases, 1901-1902; Beale, Treatise, 1935.

"Best law" - Luther L. McDougal III created the "best law" theory to solve conflict problems. This theory calls for the courts in the United States to seek the "best rule of law" in both interstate and international conflicts. He defines the "best rule of law" as the rule which "best promotes net aggregate long-term common interests." McDougal advocates the development and application of transnational laws to accommodate "transnational community policies." The quest for such enlightened transnational policies, in McDougal`s view, would result in the formation of a new ius gentium. See Tetley, Int'l C. of L., 1994 at pp. 15, 448-449.

"Better rule of law" - Unlike Currie's governmental interest analysis, which called for the lex fori in conflict of law cases, or functional analysis, which weighs one government's interest against the other to resolve conflict cases, Robert A. Leflar advocated evaluating each government's interest with five "choice influencing considerations." The last, and eventually the most famous and influential of these five considerations called for the application of "the better rule of law." These criteria were criticized for being excessively subjective, and thus unpredictable. See Tetley, Int'l C. of L., 1994 at pp. 14 -15, 447 (See Leflar, supra).

Bona fide - In good faith or with good faith; without fraud or deceit; genuine. Int'l C. of L., 1994 at pp.39, 42; Tetley , "Vita Food Products Revisited" (1992) 37 McGill L.J. 292-316.

Bonaparte, Napoleon (1769-1821) - See Law of the Person (infra).

Borrowing statute - A statute, whereby an action or claim which is being barred by a foreign limitation statute, will also be barred in the forum. The applicable foreign limitation is typically that of the place where the cause of action arose. Thus, under the statute the forum “borrows” the foreign limitation, including laches. See Tetley, Int'l. C. of L., 1994 at pp. 702-703.

Briggs & Rees, Civil Jurisdiction and Judgments, Lloyd's, London, 1993.

Brussels Convention 1968 - The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, adopted at Brussels on September 27, 1968 and in force as of February 1, 1973. This Convention provides uniform rules on jurisdiction and the recognition and enforcement of judgments for all States of the European Union (infra). The official text of the Convention, of its Protocol of Interpretation of June 3, 1971 (in force as of September 1, 1975) and of the 1978 Accession Convention, adopted at Luxembourg on October 9, 1978 (whereby the United Kingdom, Denmark and Ireland became parties to the Convention) may be found in O.J.E.C. 1978 L 304/77 of October 30, 1978. The Brussels Convention 1968 was also amended by the Greek Accession Convention of October 25, 1982 (O.J.E.C. 1983 L 388/1 of December 31, 1982) and by the Spanish and Portuguese Accession Convention (the San Sebastian Convention) of May 26, 1989 (O.J.E.C. 1989 L 285/1 of October 3, 1989). See Tetley, Int'l C. of L., 1994 at pp. 805-808 and 848-856.  As of March 1, 2002, the Brussels Convention 1968 was replaced, for all Member States of the European Union except Denmark, by E.C. Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial maters, infra.

Burden of proof - Burden of proof is a rule which only decides who must prove a single question of fact. See additionally order of proof, infra; conduct of the trial, infra; and formalities of the forum court, infra; Tetley, Int'l. C. of L., 1994 at p. 64.


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Capacity - A legal qualification (e.g. age) that determines if one is capable, under the law, of entering into a legal relationship, f.i. enter into a binding contract. Tetley, Int'l C. of L., 1994 at pp. 236-237.

Carbone, Sergio M., Lezioni di Diritto Internatzionale Privato, 2000, Casa Editrice Dott. Antonio Milani (CEDAM), Padua.

Castel, Jean Gabriel and Walker, Janet (1928- ), Canadian Conflict of Laws, 5 Ed., 2002 - Provides a detailed survey of the issues involved when conflict of law disputes touch on the laws and procedures of two or more provinces of Canada or countries. See The Third Approach (infra); Castel, Extraterritoriality, 1988; Castel, Droit Intl. privé québecois, 1980; Castel Introduction to Conflict of Laws, 4 Ed., 2002. See also Tetley, Int'l C. of L., 1994 at pp. xix, 25.

Cavers, David Farquhar (1902-1986) See American conflicts revolution (supra); principles of preference (infra). Tetley, <# DocLink("canlook.pdf"); #> (1999) 38 Columbia Journal of Transnational Law at pp. 307-322 and available online here

Centre of gravity rule - See place of machinery, infra.

"Cessante ratione legis, cessat ipsa lex" - A Latin maxim, meaning "When the reason for the law ends, the law itself lapses". See Schorsch-Meier GmbH v. Hennin [1975] Q.B. 416 at p. 425 (C.A. per Lord Denning, M.R.).

Characteristic performance - The essential contact of the rebuttable presumption (infra) in art. 4(2) of the Rome Convention, 1980 (infra), to the effect that the most closely connected country is the one in which the party who is to carry out the characteristic performance has his habitual residence or its central administration and, in some cases, its principal place of business. See also art. 3113 Quebec Civil Code and Tetley, Int'l C . of L., 1994 at pp. 299-301.

Cheshire & North, 13 Ed., 1999 - A leading English text on conflict of law. See The Third Approach (infra); Tetley, Int'l C. of L., 1994 at pp. 25, 28.

Choice of jurisdiction - In the conflict of laws, the principles and rules applied by courts in order to determine the proper jurisdiction for instituting legal proceedings.

Choice of Law - In the conflict of laws, the principles and rules applied by courts in order to determine the law applicable to one or more of the legal issues to be decided.

Clarke, Malcolm Alistair - International Encyclopedia of Comparative Law, Vol. III (Private International Law), Chapter 26 (Transport by Sea and Inland Waterways), 1996.

Closest and Most Real Connection - Weighing of connecting factors to find the most significant relationship in order to apply the proper law. Tetley, Int'l C. of L., 1994 at pp.10-12; Morris and Cheshire, "The Proper Law of a Contract in the Conflict of Laws" (1940) 56 L.Q. Rev. 320; Boissevain v. Weil [1949] 1 K.B. 482, at pp. 490-491 (C.A.); Morris, "The Proper Law of a Tort", (1951) 64 Harv. L. Rev. 881 at p. 888; Dicey & Morris, The Conflict of Laws, 12 Ed., 1993 at p. 1230. See Westlake, infra.

Comity - The doctrine requiring courts of one state to recognize the laws and judgments of competent courts of another state, in order to secure the reciprocal recognition by that foreign state of the laws and the judgments of the first state. See for example, Beals v. Saldanha [2003] 3 S.C.R. 416. See Story, Joseph (infra); see also Tetley, M.L.C., 2 Ed., 1998 at pp. 1095-1097; Tetley, Int'l C. of L., 1994 at pp. 9, 320.

Common home state exception - If the perpetrator of the delict and the victim have a domicile or residence in the same country, the law of that country applies. See for example article 3126 of the Civil Code of Quebec. "In any case where the person who committed the injurious act and the victim have their domiciles or residences in the same country, the law of that country applies." See also: Hanlan v. Sernesky, [1996] O.J. No. 4049; M. Reimann, "Codifying Torts Conflicts: The 1999 German Legislation In Comparative Perspective", (2000) 60 La. L. Rev. 1297.

Comparative impairment - Expanding on the theory of governmental interest analysis developed by Currie, Baxter, W.F. (supra) developed the theory of comparative impairment. This theory called upon the courts to determine which state's policies and interests would be more greatly impaired by the application of the other state's law to the case at hand and then to apply the law of the state likely to suffer the greater impairment. Tetley, Int'l. C. of L., 1994 at pp. 13, 448.

Concursus- The rule that after a shipowner's limitation fund has been duly constituted, other legal proceedings in respect of the casualty concerned must be stayed and all claims resulting from the casualty must be filed against the limitation fund and disposed of in a single "limitation proceeding". See the Limitation Convention 1957, art. 2(4); the Limitation Convention 1976, art. 13(1); the Merchant Shipping Act 1995, U.K. 1995 c. 21, Schedule 7 Part II, para. 8(3); Law no. 67-5 of January 3, 1967, art. 62 third para. (France); Supplemental Rule F(3)(U.S.); Marine Liability Act, S.C. 2001, c. 6, sect. 33(1)(c) (Canada). See Tetley, Int'l. C. of L., 1994 at pp. 518 and 528.

Conduct of the trial - The manner in which a trial and its proceedings are carried out, e.g. the rules which decide such matters as the oath to be administered, and whether the court or opposing attorneys question witnesses. The conduct of the trial is purely a question for the lex fori (infra). See additionally burden of proof, supra; order of proof, infra and formalities of the forum court, infra; Tetley, Int'l. C. of L., 1994 at p. 64.

Conflict of Laws , also known as "Private International Law", was a term first coined by Joseph Story in his 1st Edition, 1834 of that name. (See Tetley, Intl. C. of L., 1994 at p. 9). There are three classic categories of conflicts: 1) choice of law; 2) choice of jurisdiction, and 3) recognition and enforcement of foreign judgments. Histocially conflict theories have been based on four approaches: 1) single concepts; 2) multiple numbered rules; 3) general texts; 4) national laws and international conventions (see Tetley, Int'l C. of L., 1994 at p. 7). I have proposed a fifth approach - a methodology to solve every conflict problem (Tetley, ibid. at p. 37 et seq.).

Connecting factors (contacts) - In the conflict of law, connecting factors, or contacts, are facts which tend to connect a transaction or occurrence with a particular law or jurisdiction (e.g. the domicile, residence, nationality or place of incorporation of the parties; the place(s) of conclusion or performance of the contract; the place(s) where the tort or delict was committed or where its harm was felt; the flag or country of registry of the ship; the shipowner's base of operations, etc.). Connecting factors are taken into consideration and weighed by courts and arbitrators, in determining the proper law (infra) to apply to decide the case or dispute. See Tetley, Int'l. C. of L., 1994 at pp. 41, 195-196.

Contacts (see connecting factors, supra)

Contra proferentem - A rule premised on the belief that if a party is able to stipulate terms, or is the party who writes the contract, then implicitly he occupies the stronger position. To redress the imbalance between the parties, contra proferentem holds that the interpretation that favours the other party will be chosen. See for example, See Tetley, Int'l. C. of L., 1994 at pp. 623, 632, 641-642. See also the UNIDROIT Principles of International Commercial Contracts 1994/2004, art. 4.6; the Principles of European Contract Law 1998, art. 5.03; art. 1162 c.c. (France); art. 1432 c.c. (Quebec 1994); Allied Chemical International Corp. v. Companhia de Navegacao Lloyd Brasileiro 775 F.2d 476 at p. 482, 1986 AMC 826 at p. 832 (2 Cir. 1985), cert. denied, 475 U.S. 1099, 1986 AMC 2700 (1986); Interocean S.S. Corp. v. New Orleans Cold Storage and Warehouse Co. 865 F.2d 699 at p. 703, 1989 AMC 1250 at p. 1254 (5 Cir. 1989); C-Art, Ltd. v. Hong Kong Islands Line America, S.A. 940 F.2d 530 at p. 532, 1991 AMC 2888 at p. 2890 (9 Cir. 1991), cert. denied, 503 U.S. 1005, 1992 AMC 2701 (1992); Penn Mut. Life Ins. Co. v. Oglesby (1997), 695 A.2d 1146.

Contribution between joint tortfeasors - Where a plaintiff has recovered 100% from tortfeasor-A and there were one or more other defendants at fault, then tortfeasor-A could receive a contribution from the other defendant(s) for their proportionate fault of the damages sustained by the plaintiff in proportion to their fault. See Tetley, Int'l. C. of L., 1994 at p. 487; as well as Simeon v. T. Smith & Son, Inc. (1988), 852 F.2d 1421, 1989 AMC 2144 (5 Cir. 1988), rehearing denied, 860 F.2d 1255 (5 Cir. 1988), cert. denied, 490 U.S. 1106, 1989 AMC 2407 (1989).

But see also McDermott, Inc. v. Amclyde and River Don Castings, Ltd. 511 U.S. 202, 1994 AMC 1521 (1994), where the U.S. Supreme Court held that the liability of a settling joint tortfeasor is limited to its proportionate share of the total obligation. Under this "proportionate share" approach, the liability of the non-settling joint tortfeasors is then reduced by the settling tortfeasor's equitable share of the obligation (rather than dollar-for-dollar as under the "pro tanto" approach). As a result of the "proportionate share" approach announced in McDermott, neither the settling nor the non-settling tortfeasors now have the right to claim contribution from one another in American maritime law, regardless of whether the settling tortfeasor has paid the plaintiff more or less than his proportionate share of the total liability."

Contributory Negligence - When both parties to a claim for damages arising from tort were at fault, neither party recovered anything. This was the historic common law rule of Butterfield v. Forrester, (1809) 11 East 60, 103 E.R. 926 (K.B.), where even a plaintiff who was only 1% at fault could not collect from the defendant who may have been 99% at fault. It was a very harsh doctrine based on a very strict moral rule of causation that the plaintiff should not profit from his own fault. Contributory negligence, has been replaced in most legal systems by proportionate fault/comparative fault. See J.G. Fleming, The Law of Torts, 9 Ed., The Law Book Co., Sydney, 1998, at p. 306; Grime, 1991, p. 249; Tetley, Int'l. C. of L., 1994 at pp. 476-477, 479-481, 488; Marine Liability Act, S.C. 2001 c.6, Part II sect. 17(2) effectively codifying Bow Valley (Husky) Ltd. v. St. John Shipbuilding Ltd. [1997] 3 S.C.R. 1210.

Cook, Walter Wheeler (1873-1943) See American conflicts revolution (supra).

Corporate veil - Corporate personality has been firmly established in the common law since the decision in Salomon v Salomon & Co. (1897) A.C. 22 (H.L.), whereby, a corporation has a separate legal personality, rights and obligations totally distinct from those of its shareholders. Legislation and courts nevertheless sometimes "pierce the corporate veil" so as to hold the shareholders personally liable for the liabilities of the corporation. Courts may also "lift the corporate veil", in the conflict of laws in order to determine who actually controls the corporation, and thus to ascertain the corporation's true contacts, and closest and most real connection. See Tetley, Int'l C. of L., 1994 at pp. 41, 159, 219-224.

Corrective justice - A doctrine, inherent to the U.S. legal system, especially U.S. tort law. The American legal system is corrective in principle rather than distributive, attempting to correct each case individually by claims which may end in suit. See Tetley, Int'l. C. of L., 1994 at p. 21; See Tetley, <# DocLink("canlook.pdf"); #> (corrective vs. distributive justice) 38 Columbia Journal of Transnational Law 299-373.

Cumul - The combination of contractual and extra-contractual recourses in a single claim or suit. “Cumul” is acceptable in common law jurisdictions. Civil law on the other hand usually resolves the tort/contract problems by prohibiting the “cumul” and usually imposing the contractual relationship. See Quebec Civil Code 1994, at art. 1458 c.c.q.; Tetley, Int'l. C. of L., 1994 at pp. 453-454.

Curial law (lex arbitri) - The law governing the procedure of the court or arbitral tribunal itself. See Tetley, Int'l. C. of L., 1994 at p. 406.

Currie, Brainerd (1912 - 1965) See American conflicts revolution (supra).


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"De minimis non curat lex" - ("The law does not concern itself with trifles") - e.g., trivial divergences from contractual terms do not constitute actionable breaches of the contract. see Sail Labrador Ltd. v. The Challenge One [1996] 3 F.C. 821 at pp. 847-848 (Fed. Ct. of Can.), reversed [1997] 3 F.C. 154, (1997) 212 N.R. 256 (Fed. Ct. of App.), reversed (1998) 235 N.R. 201 at pp. 242-245 (Supr. Ct. of Can.), upholding the trial judge's interpretation of the de minimis principle, but holding the doctrine inapplicable to the facts of the case at bar. See Tetley, Int'l. C. of L., 1994 at p. 797.

"Dépeçage" [Span.: "dépeçage" or "fragmentación"] [Ital.: "frammentazione"] - A French term referring to the application to a conflict of laws problem of different laws, each of which is properly applicable to a different legal issue arising in the problem. For example, in a ship collision at sea, dépeçage could permit the application of various laws, including: a) the law of responsibility as between the ships involved; b) the law of damages (including the recoverability of pure economic loss); c) the law of contract applicable as between passengers on one ship and that ship; d) the law applicable to cargo on one ship and that ship; e) the law applicable as between cargo and passengers on one ship and the other ship; f) the law governing the right to limit liability of each shipowner; g) the law applicable to the constitution and calculation of the limitation fund of each ship, and h) the law of the distribution and marshalling of such limitation funds. The Rome Convention 1980 at art. 3(1) permits dépeçage by providing: "By their choice the parties can select the law applicable to the whole or a part only of the contract" (emphasis added). See for example art. 3111, third paragraph of the Quebec Civil Code; Tetley, Int'l C. of L., 1994 at pp. 39, 42-43.

Dicey, Albert Venn (1835-1922) - As Vinerian professor of English law at Oxford (1882-1909), Dicey published his three most influential works: the Introduction to the Study of the Law of the Constitution (1885); Conflict of Laws (1896); and Law and Opinion in the Nineteenth Century (1905). Today, Dicey & Morris, The Conflict of Laws, 13 Ed. (2000) is the classic text on fixed rules solving conflict of law problems in England. See Morris, J.H.C. (infra); Tetley, Int'l C. of L., 1994 at pp. xvi, 23, 24, 28, 34.

Direct action - The right of a third party who has a claim in responsibility against an insured to proceed directly by suit against the insurer, usually because the insured has been declared bankrupt or has become insolvent. In most jurisdictions, direct action is permitted only by statute. See for example, Simeon v. T. Smith & Son, Inc. (1988), 852 F.2d 1421. See Tetley, Int'l C. of L., 1994 at pp. 362, 364-381; Tetley, Int'l. M. & A. L., 2003 at pp. 617-619. See also Gregory Fossion, "An eternal triangle at sea: Loss of insurance cover under a direct action in marine liability insurance", Masters of Laws thesis, published in (2003) Jura Falconis, no. 2 of the Katholieke Universiteit Leuven, Belgium. 

Distributive justice - A doctrine and dominant philosophy for social and legal systems in most industrialized countries except the United States. In contrast with corrective justice, distributive justice is applied equally to all members of the society under the social system. See Tetley, Int'l. C. of L., 1994 at p. 21; Tetley, <# DocLink("canlook.pdf"); #> (corrective vs. distributive justice) 38 Columbia Journal of Transnational Law 299-373.

Divided damages - The former method of apportioning damages from a ship collision under the general maritime law of civil law countries, as well as under English and American admiralty law, was that such damages were equally divided when ships involved in the collision were at fault, regardless of that fault. Divided damages differed from the traditional contributory negligence (supra) rule of apportionment of damages, which precluded a plaintiff from recovering any damages from a negligent defendant if the plaintiff himself was at fault in even the slightest degree. Divided damages were eventually replaced by the proportionate fault (infra) under the Collision Convention 1910 and national legislation giving effect to that Convention, and in the United States, by the Supreme Court's decision in United States v. Reliable Transfer Co. 421 U.S. 397, 1975 AMC 541, [1975] 2 Lloyd's Rep. 286 (1975). See Tetley, Int'l C. of L., 1994 at pp. 471-501, Tetley, M.L.C., 2 Ed., 1998 at p. 50.

Domicile - The place at which a person has physical presence, which that person regards as home, and to which that person intends to return and remain even though currently residing elsewhere. The concept of domicile includes the concept of place and the concept of a settled connection with the place. A person has a settled connection with his or her domicile for legal purposes, either because that place is home or because the law has so designated that place. See Tetley, Int'l. C. of L., 1994 at p. 236, 828.

Double actionability - The former English common law rule of conflict of laws in tort, whereby a suit could only be maintained in England for an alleged wrong committed abroad (1) if the wrong would have been actionable had it been committed in England and (2) if it was also civilly actionable in the place where it was committed. See Chaplin v. Boys [1971] A.C. 356 (H.L.). The double actionability rule has been largely repealed in England by Part III of the Private International Law (Miscellaneous Provisions) Act 1995, U.K. 1995, c. 42. In Canada, the very similar "actionable and not justifiable" common law conflicts rule in tort, adopted by the Supreme Court of Canada in McLean v. Pettigrew [1945] S.C.R. 62, was eventually abandoned by the Supreme Court in favour of the rule of lex loci delicti (subject to a flexibility exception) in Tolofson v. Jensen and Gagnon v. Lucas [1994] 3 S.C.R. 1022. See Tetley, Int'l C. of L., 1994 at pp. 191-192, 210, 429, 439, 455, 468-469, 697, 430-435, 437-438; Tetley, "New Developments in Private International Law: Tolofson v. Jensen and Gagnon v. Lucas" (1996) 42 Am. J. Comp. L. 647

Double renvoi - The application by the forum court to the conflict rules, including the renvoi rules, of a foreign state. Double renvoi, also known as the "foreign court theory", appears to be limited to England; see also renvoi. Tetley, Int'l C. of L., 1994 at pp. 74-75.

Due process - A fundamental principle of fairness in all legal matters, both criminal and civil, especially in the courts. Basic legal procedures set by statute and court practice, which must be followed for each individual so that no prejudicial or unequal treatment will result. See 5th and 14th Amendments, Constitution of the United States. The U.S. Constitution guarantees that the government cannot take away a person's basic rights to life, liberty or property, without due process of law. Due process is frequently utilized to control a choice of jurisdiction. See Tetley, Int'l. C. of L., 1994 at p. 120-121.


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E.C. Regulation 44/2001 - The Regulation of the Council of the European Union on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, adopted December 22, 2000 (O.J.E.C. L 12/1 to L 12/23, January 16, 2001) and in force March 1, 2002 for all E.U. countries except Denmark. The Regulation is very similar to the Brussels Convention 1968, supra, which it replaces. Denmark continues to be bound by that Convention. See Tetley, Int'l. M. & A. L., 2003 at pp. 421-422.

Economic loss - Economic loss is financial damages sustained as a result of a tort or delict. The issue in the common law is the following: Should a plaintiff recover even when there has been no physical damage? See Murphy v. Brentwood District Council [1991] 1 A.C. 398, [1990] 2 All E.R. 918, [1990] 3 W.L.R. 414 (H.L.); Robins Dry Dock Co. v. Flint 275 U.S. 303, 1928 AMC 61 (1927); CNR v. Norsk Pacific Steamship Co. (The Jervis Crown) [1992] 1 S.C.R. 1021, (1992) 91 D.L.R.(4th) 289; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210, (1997) 153 D.L.R.(4th) 385. There is generally no problem with economic loss in the civil law, where "loss of profit" is part of damages. See art. 1150 of the French Civil Code in Tetley, M.C.C., 4 Ed., 2008 at p. 783. See also Tetley, Int'l. C. of L., 1994 at pp. 495, 526-527, 719-727; Tetley, M.L.C., 2 Ed., 1998 at pp. 105, 131-136, 139, 142, 147, 164.

E.E.C. Draft Convention on Obligations 1972 - Extracts of the E.E.C. Preliminary Draft Convention on the Law of Applicable to Contractual and Non-Contractual Obligations, 1972, being arts. 10-14 (on torts and delicts) to be found in the U.K. Law Comms. Paper on Tort & Delict, 1984 at pp. 292 &293.

Ehrenzweig, Albert A. (1906 - ) Emphasized the lex fori approach to conflicts of law. Rare exceptions included where the constitution or governmental interests dictated otherwise (both of which were rare). See American conflicts revolution (supra); see also The Lex-Fori-Basic Rule in the Conflict of Laws, 58 Mich. L. Rev. 340 (1960); Albert A. Ehrenzweig, Private International Law, A comparative Treatise on American International Conflicts Law, Including the Law of Admiralty (Gen. Part, 1967); Albert A. Ehrenzweig, Conflicts in a Nutshell (3d ed. 1974); Albert A. Ehrenzweig, A Proper Law in a Proper Forum: A Restatement of the lex fori Approach, 18 Okla. L. Rev. 340 (1965). See Tetley, Int'l C. of L., 1994 at pp. 1, 9-10, 24, 25, 26, 146.

"Ejusdem generis" - "of the same kind". When a list of words with specific meanings is followed and expanded by the addition of general words, the latter are to be restricted in their application to things of the same nature as the preceding specific words. See Foscolo Mango v. Stag Line [1931] 2 K.B. 48 at pp. 57-59, 65-68, 72-76, (1931) 39 Ll. L. Rep. 101 at pp. 106-107, 109-110, 113-114. (C.A.). See Tetley, M.C.C., 4 Ed., 2008 at pp. 1226, Tetley, Int'l C. of L., 1994 at pp. 633-634.

Equity analysis - A term I have coined for the recent American theory of conflict of laws, whereby the law of a jurisdiction (infra) is chosen in order to arrive at an equitable or teleological (infra) solution to a conflict problem. See Tetley, <# DocLink("canlook.pdf"); #> (corrective vs. distributive justice) (1999) 38 Columbia Journal of Transnational Law 299 at pp. 353, 357 and 366.

Erie doctrine - The American rule that a U.S. federal district court exercising "diversity jurisdiction" (i.e. jurisdiction in a case in which the parties are from different U.S. states or where a foreigner sues an American citizen), must apply the law of the U.S. state in which it is sitting. See Erie Railroad Co. v. Tompkins 304 U.S. 64 (1938); Klaxon v. Stentor Electric 313 U.S. 487 (1941). See also Tetley, Int'l C. of L., 1994 at pp. 17, 608-609, 705-706, 740.

Escape hatches (escape clauses) - Escape hatches (escape clauses) are found in codes or statutes and permit a different law to apply as a general rule or permit a particular rule or presumption to be ignored if the court believes it is wise to do so. Escape hatches permit a choice of law rule or choice of law presumption to be circumvented when it is clear that the law chosen has only a slight connection to the facts of the case and another law has a much closer connection. See art. 15 of the Swiss Federal Statute on Private International Law and art. 3082 of the Quebec Civil Code, 1991 for general escape hatches; Tetley, Int'l. C. of L., 1994 at p. 239-241.

European Union [Fr.: "Union européenne"] [Span.: "Unión europea"] [Ital:" Unione europea"] [Gr.: "Europäische Union"] - The present name for the former "European Economic Community" (E.E.C.), consisting of Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. As of May 1, 2004, the European Union includes ten additional countries, namely, the Czech Republic, Cyprus, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, thus bringing the total number of E.U. Member States to 25. Website: http://www.europa.eu.int/. Email: europa [at] cec [dot] eu [dot] int.

Evasion of the law - A principle of the conflict of laws, better known in civilian jurisdictions (under the French name "fraude à la loi") [Span.: "fraude de ley"] [Ital.: "violazione di norme di legge"] [Ge.: "Rechtswidrige Umgehung eines Gesetzes"] which consists of the intentional and improper manipulation of contacts (connecting factors), in order to avoid the application of the proper law. "Avoidance of the law" (supra), on the other hand is the acceptable arrangement of connecting factors for a legitimate purpose, for example in an agreement, usually between two equal bargaining parties, in order to select an appropriate applicable law or jurisdiction. See Tetley, Int'l C. of L., 1994 at pp. 135-172.

Exequatur procedure - The ordinary legal mechanism used in civil law countries to secure the recognition and enforcement of the judgments that have no automatic effect or “authority” in themselves. See Tetley, Int'l. C. of L., 1994 at p. 844-847.

"Ex turpi causa non oritur actio" - A Latin maxim, meaning "from a base cause no action arises". The legal principle thus expressed is that, on grounds of public policy, no court will lend its aid to a party who founds his cause of action on an illegal or an immoral act. See SCB v. PNSC [2000] 1 Lloyd's Rep. 218 at p. 231 (C.A.), citing Lord Mansfield in Holman v. Johnson (1775) 1 Cowp. 341 at p. 343, 98 E.R. 1120 at p. 1121. For an application of the principle, see Clunis v. Camden and Islington Health Authority [1998] 2 W.L.R. 902 at p. 908 (C.A.): "... whether a claim brought is founded in contract or in tort, public policy only requires the court to deny its assistance to a plaintiff seeking to enforce a cause of action if he was implicated in the illegality and in putting forward his case he seeks to rely upon the illegal acts."


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Falconbridge, John D., Conflicts of Laws, 2 Ed., Canada Law Book, Toronto, 1954. One of the three original classic texts on Canadian conflict of laws along with Lafleur (infra) and Johnson (infra).

False conflict - A legal problem where only one jurisdiction has a genuine interest in having its law applied. Brainerd Currie was instrumental in developing the distinction between true and false conflicts. See also Tetley, <# DocLink("canlook.pdf"); #> (1999) 38 Columbia Journal of Transnational Law at p. 311; See Tetley, Int'l. C. of L., 1994 at pp. 12, 14, 40, 448.

First Restatement of the Conflict of Laws - The First Restatement of the Conflict of Laws, adopted by the American Law Institute at Washington, D.C. on May 11, 1934. See American conflicts revolution (supra); see also Tetley, Int'l. C. of L., 1994 at p.24.

Flag shopping - The choosing of a particular jurisdiction by a shipowner in which to register his ship because it favours the shipowner in questions of crew pay, crew comfort and safety, taxes and ship safety. Flag shopping in the sixties was deemed an avoidance of the law. Today it is considered to be an evasion of the law, because the flag state has neither control over, nor a genuine link with, the shipowner. See art. 92 (1) of the United Nations Convention on the Law of the Sea, 1982; Tetley, W. "The Law of the Flag 'Flag Shopping', and Choice of Law” (1993) 17 The Maritime Lawyer, 139-184; Tetley, Int'l. C. of L., 1994 at p. 158-159.

Fletcher, Ian F., Conflict of Laws and European Community Law, North-Holland, Amsterdam, 1982.

Floating law clause - A clause in a contract which permits one party to the contract to choose the applicable law, after a predetermined event has occurred. Such clauses have been criticized for lending themselves to evasion of the law. See Tetley, Int'l C. of L., 1994 at p.157-158, 172. 412-413.

Floodgates - It was feared by Cardozo, C.J. that to grant damages for economic loss (supra) would open the floodgates to "liability in an indeterminate amount for an indeterminate time, to an indeterminate class". See Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170 at p. 174 (N.Y. C.A. 1931). His fear, it seems, was not justified. See also Tetley, Int'l C. of L., 1994 at pp. 719-720.

Follow London Clause - Is found often in marine insurance contracts. It is a clear indication that a contract is to be governed by English law. It is usually inserted where many persons are sharing in the risk. See Tetley, Int'l C. of L., 1994 at p. 360; Armadora Occidental S.A. v. Horace Mann Ins. Co., [1977] 2 Lloyd's Rep. 406, [1978] 1 All.E.R. 407 (C.A.); Thebes Shipping, Inc. v. Assicurazioni Ausonia 599 F. Supp. 405 (S.D.N.Y. 1984); Navegacion Goya, S.A. v. Mut. Boilers & Mach. Ins. 411 F. Supp. 929 (S.D.N.Y. 1975).

Foreign sovereign immunity - A doctrine precluding the institution of an action against the government of a country without its consent. The principle of absolute sovereign immunity has eventually been replaced by the doctrine of "restrictive sovereign immunity". See the State Immunity Act 1978 (U.K. 1978 c. 33); Foreign Sovereign Immunities Act (28 U.S. Code App. 1330, 1332a, 1391(f), 1441(d), 1601-1611 (1976)); State Immunity Act (R.S.C. 1985 c. S-18). All these statues are published in Benedict on Admiralty, vol. 6A. See generally Chap. 31 in Tetley, M.L.C., 2 Ed., 1998 at pp. 1161-1186.

Formalities of the forum court - Formalities of the forum court include the method whereby an action is drawn up and served; when, where, and how the court sits; whether a civil jury trial may be held; who questions witnesses; whether the forum court may permit such processes as an attachment or saisie conservatoire, a writ in rem, or a Mareva injunction; when the giving of security is ordered and how judgments are executed, etc. Formalities of the forum court follow the lex fori and are unconnected to any right or accessory right. See Tetley, Int'l. C. of L., 1994 at p. 64-66.

Forsyth, C.F., Conflict of Laws Textbook, 4 Ed. HLT Publications, London, 1993.

"Forum conveniens"- ("appropriate (convenient) court"), referring to the principle whereby a court which does not have jurisdiction over a claim nevertheless accepts jurisdiction, because there is no other appropriate jurisdiction to hear the claim, in order to ensure that justice is done. (Tetley, Int'l C. of L., 1994 at p. 803.; The Rosalie (1853) 1 Sp. 188 at p. 192, 164 E.R. 109 at p. 112 (High Ct. of Adm.); Québec Civil Code art. 3136).

"Forum non conveniens"- ("inappropriate (inconvenient) court"), referring to the principle whereby a court which has jurisdiction over a claim nevertheless stays conditionally or dismisses unconditionally the suit, in order to send the claim to be tried in another jurisdiction to which the defendant is amenable and which the court believes is more appropriate or convenient for the litigation, in the interests of justice. See for example, Amchem Products Inc. v. British Columbia (Workers' Compensation Board) [1993] 1 S.C.R. 897. (Tetley, Int'l C. of L., 1994 at pp. 798-800; Tetley, Int'l. M. & A. L., 2003 at pp. 412-413; Tetley, "<# DocLink("jurisdiction.pdf"); #>" (publisbed in Jurisdiction and Forum Selection in International Maritime Law. Essays in Honor of Robert Force (Martin Davies, ed.), Kluwer Law International, The Hague, 2005, Chapter 6 at pp. 183-263).)

Forum shopping is the improper choice of jurisdiction by the manipulation of connecting factors, in order to prevent the court of the proper jurisdiction from hearing a claim. It is best defeated, not by domestic legislation, but by international conventions on jurisdiction, because national laws and practices have a tendency to favour suit before national courts, which in turn, often favor local law. See Tetley, Int'l. C. of L., 1994 at pp. 804-805. See also evasion / fraude à la loi, avoidance of the law.

Fraude à la loi - See Evasion of the Law (supra)

Freezing Injunction - See Mareva injunction (infra).

Full faith and credit [Fr.: "reconnaissance totale"] - In the conflict of laws, the principle of "full faith and credit" requires courts in one jurisdiction in a federal State to recognize and enforce the laws and court judgments of other jurisdictions within the same State. The principle is enshrined in Art. IV sect. 1 of the Constitution of the United States of America and at art. 118 of the Australian Constitution. In Canada, the full faith and credit doctrine has emerged in the case law of the Supreme Court of Canada in decisions such as Morguard Investments Ltd. v. DeSavoye [1990] 3 S.C.R. 1077 at pp. 1100-1101 and Hunt v. T. & N. plc. [1993] 4 S.C.R. 289 at pp. 321-325. See Tetley, Int. L. of C., 1994 at pp. 17, 706-709 and 826.

Functional Interest Analysis - Arthur Taylor von Mehren (supra) and Donald T. Trautman introduced a method of weighing governmental interest, unlike the lex fori rule advocated in Currie's governmental interest analysis. Von Mehren and Trautman called their approach "functional interest analysis", and listed the criteria to be considered when weighing one government's interest against the other. The law to apply using functional analysis would be the law of the jurisdiction with the greatest weight. Multijurisdictional rules were advocated where weighing did not provide a solution. See Tetley, Int'l. C. of L., 1994 at p.13.


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- An approach to conflict of laws whereby solutions to conflict problems are sought in commentaries, general textbooks and essays by conflict of laws scholars, but without reliance on any multiple numbered rules, infra. See Tetley, Int'l C. of L. 1994 at pp. 25-26.

Glenn, H. Patrick (1940-...)- La capacité de la personne en droit international privé français et anglais (Paris, 1975), arguing for the relevance of substantive justice in cross-border capacity cases; "Du droit international privé" in Barreau du Québec, La réforme du Code civil (Quebec, 1993), commenting on Quebec codification of private international law; Legal Traditions of the World (Oxford, 2000).

Goodrich, Herbert Funk (1889 - 1962) Named Dean of Pennsylvania Law School in 1929 and a Judge of the U.S. Court of Appeals from 1940 - 1962, was a general commentator on the conflict of laws. See "The Third Approach" (infra); Goodrich, Handbook of the Conflict of Laws, 1964; see also Cheatham, Goodrich, Griswold & Reese, "Base of Choice of Law in Tort Actions" (1968).

"governmental interest analysis" - The applicable law is to be determined by the identification of the law of the state with the greatest interest in having its law applied to the particular case. The application of the theory requires the court to ascertain which of the states concerned has a more legitimate interest in having its social, economic or administrative policies applied to the legal problem at hand. Brainerd Currie (supra) in the United States in his book, Selected Essays on the Conflict of Laws, 1963, developed the term and concept. The principle is applied in certain American states, but has not been generally accepted outside the U.S. See Tetley, Int'l. C. of L., 1994 at p. 12.; Tetley, <# DocLink("canlook.pdf"); #> (1999) 38, No. 2, Columbia Journal of Transnational Law at p. 311.

Graveson, Ronald Harry (1911 - 1991) English commentator on the conflicts of laws. See The Third Approach (infra); Graveson, Comparative Conflict of Laws, 1977; Graveson, Conflict of Laws, 7 ed., 1974; The origin of the conflict of laws, in: Festschrift für K. Zweigert. Tübingen 1981, 93-107. See Tetley, Int'l. C. of L., 1994 at pp. 25-26.

Groffier, E., Précis de droit international privé québécois, 4 Ed., Blais, Montreal, 1990; La réforme du droit international privé québécois: Supplément au Précis de droit international privé québécois, Blais, Montreal, 1993. See Tetley, Int'l. C. of L., 1994 at pp. xiv, 25.

Guest statute - A statute which sets specific standards of care on the driver of a vehicle towards a non-paying passenger. The basic concept is that the social passenger may only bring suit against the driver for gross negligence or some other form of aggravated misconduct. See for example Lownds v. Kenley (1986) 30 D.L.R. (4th) 542 (Nova Scotia C.A.). Examples of guest statutes include, Nova Scotia Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 243(b)(2); and Alabama Code 1975, sect. 32-1-2. Please also refer to Tetley, Int'l. C. of L., 1994 at p. 423-457; and <# DocLink("canlook.pdf"); #> (Corrective vs. Distributive Justice)" (1999) 38 Columbia Journal of Transnational Law 299-373 at pp. 363-368.


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Hague Conference on Private International Law - An intergovernmental organization founded in 1893 to promote uniformity of private international law. The Conference has drafted over 35 conventions on diverse subjects of private international law, over 20 of which conventions are in force in different countries, including, among others, the Hague Conventions on International Sales of Goods (1955 and 1986), the Service of Documents Abroad (1965), the Taking of Evidence Abroad (1970) and Agency (1978). See Tetley, Int'l C. of L., 1994 at p. 30 and the list of Hague Conventions in force at Appendix "K", pp. 1080-1081; Hague Conference on Private Int'l Law, Home Page at http://www.hcch.net

Hancock, Moffatt J. E. (1912 - 1993) - Hancock, with his close friend, Brainerd Currie (supra), advocated against a formal system of legal classification, as was done traditionally in conflicts of law; rather both Currie and Hancock advanced a new method for resolving choice of law conflicts based on the underlying policies of the competing laws, so that a court could make a "rational, purposeful choice."


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In personam ("against the person") - A type of legal proceeding directed against the defendant personally (e.g. an action for breach of contract, the commission of a tort / delict or the possession of property). Where an action in personam is successful, the judgment may be enforced against all of the defendant's assets, real and personal, moveable and immoveable. See Tetley, M.L.C., 2 Ed., 1998 at pp. 938-941, 958-985; Tetley, Int'l. C. of L., 1994 at pp. 795, 827-828. See also Tetley, M.C.C., 4 Ed., 2008 at pp. 558, 570-574, 576-577. In the United Kingdom, an action in personam is now termed a "claim in personam". See paras. 1.4(c) and 3.1(1) to 3.3 of Practice Direction 49F (Admiralty), promulgated under Part 49 (Specialist Proceedings) at Rule 49(2)(a) of the Civil Procedure Rules 1998 (S.I. 1998/3132), in force April 26, 1999.

In rem ("against the thing") - A type of legal proceeding, taken in an admiralty court in a common law jurisdiction, against the ship (and sometimes against cargo and/or freight) (the res) as defendant, in respect of particular types of maritime claims (e.g. to enforce a claim secured by a maritime lien or a statutory right in rem. The taking of an action in rem is generally accompanied by the arrest of the res (thing), which provides pre-judgment security for the claim and confirms the admiralty court's in rem jurisdiction. Where an action in rem is successful, the judgment may be enforced against the res by way of judicial sale. If the defendant files an appearance in the action in rem, however, the action proceeds as a combined action in personam and in rem, and an eventual judgment in the plaintiff's favour may then be executed against both the res and the defendant's other personal assets. On in rem jurisdiction, see Tetley, Int'l. C. of L., 1994 at p. 795-830; Tetley, M.C.C., 4 Ed., 2008 at pp. 558, 572-575, 576-577, 1476-1482; Tetley, "Arrest, Attachment, and Related Maritime Law Procedures" (1999) 73 Tul. L. Rev. 1895-1985 at pp 1905-1940. In the United Kingdom, an action in rem is now termed a "claim in rem". See paras. 1.4(b) and 2.1(1) to 2(8) of Practice Direction 49F (Admiralty), promulgated under Part 49 (Specialist Proceedings) at Rule 49(2)(a) of the Civil Procedure Rules 1998 (S.I. 1998/3132), in force April 26, 1999.

The action in rem does not exist in civilian jurisdictions, but in such jurisdictions, the action in personam (supra) may be accompanied by the saisie conservatoire ("conservatory attachment") of the ship, cargo or freight, which, like the action in rem, provides pre-judgment security for the claim. The United States has both the action in rem (Supplemental Rule C) and the attachment (Supplemental Rule B). See Tetley, M.L.C., 2 Ed., 1998 at 938-943, pp. 958-985.

Incoterms 2000 - Incoterms, the internationally accepted and employed terms for contracts of sale, were first published by the International Chamber of Commerce (ICC) in 1936. They were revised in 1953 and reprinted in 1974, including two new terms that had been adopted in 1967, and again in 1976, 1980 and 1990. The latest revision, known as "Incoterms 2000", came into force on January 1, 2000.  It modifies some of the existing terms in an updated format for ease of use, providing traders, lawyers, transport officials and insurers with a modern text reflecting the latest changes in the trading environment.  See the ICC website: http://www.iccwbo.org/; ICC, Incoterms, 2000 : ICC official rules for the interpretation of trade terms : entry into force January 1, 2000. Paris, New York : ICC Publishing, Inc., c1999. p.127.

Indemnity policy - A liability insurance policy that provides protection from claims arising from injury or damage to other people or their property. An indemnity policy is less adapted to direct action than a liability policy because it requires that the insured have already paid the claim (“pay first” or “pay to be paid” ), before the insurer is obliged to indemnify the insured. See Ruby S.S. Co. v. Johnson & Higgins, 18 F.2d 984, 1927 AMC 714 (2 Cir. 1927); Ruby S.S. Co. v. Commercial Union, (1933) 46 Ll. L. Rep. 265 (C.A.). See also liability policy, infra; Tetley, Int'l. C. of L., 1994 at pp. 365-366.

"Ius commune" ("jus commune") - It is composed of broad, general principles and is usually at first unwritten and then later codified. The ius commune applies in a particular state, unless there is a specific statute limiting it. See William Tetley, <# DocLink("genmarlaw.pdf"); #> (1994) 20 Syracuse J. Int'l L. & Comm. 105-145; reprinted [1996] ETL 469-506.

Ius gentium - The law of nations, referring to International Law. See Tetley, Int'l C. of L., 1994 at p. 15, 417-419.


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Jaffey, A.J.E., Introduction to the Conflict of Laws, Cambridge U.P., Cambridge, 1988. Tetley, Int'l C. of L., 1994 at p. 26.

Joint liability - Where the joint obligor has the right to insist that the co-obligor be joined as a co-defendant, and that the co-obligor be sued jointly. In other words, where two or more parties share liabilities. Tetley, Int'l C. of L., 1994 at p. 487. See also: Contribution between joint tortfeasors.

Joint and several liability - Where the creditor may sue one or more of the liable parties separately or together. In other words, the plaintiff can recover all of its damages from either or all of the numerous tortfeasors. Marine Liability Act Canada, S.C. 2001, c.6, Part II sect. 17; See Mitchell v. Darricott, 3 Brev., S.C., 145; Rice v. Gove, 22 Pick., Mass., 158, 33 Am. Dec. 724. See Tetley, M.C.C., 4 Ed., 2008 at pp. 581-586; Tetley, M.L.C., 2 Ed., 1998 at p. 158; See also: Contribution between joint tortfeasors

Johnson, Walter S., The Conflict of Laws (in three vols.), de Lamiranded, Montreal, 1933-1937. Along with Lafleur and Falconbridge was one of the three classic texts on Canadian Conflicts of Law.

Juenger, Friedrich K. (1930-2001) - See American conflicts revolution (supra); see also Choice of Law and Multistate Justice (1992); Friedrich K. Juenger, "A Third Conflicts Restatement?", 75 IND. LJ 403 (2000). See Tetley, Int'l C. of L., 1994 at pp. 7, 15-16, 17, 448-449.

Jurisdiction - A term referring to the nature and extent of the legal authority bestowed upon a legislature to enact laws (legislative jurisdiction) or of courts to hear and determine actions and other legal proceedings (judicial jurisdiction), as determined by international conventions or national laws. A court exercises its "jurisdiction" (i.e. decision-making authority, or "competence") over proceedings of certain types ("subject-matter jurisdiction", or "jurisdiction ratione materiae") and over a defined territory ("territorial jurisdiction", or "jurisdiction ratione loci"). Its authority to adjudicate may also be limited to certain persons or to certain maximum amounts of money in dispute.

"Jurisdiction" may also refer to one or more States or political subdivisions governed by a particular legal system (e.g. "common law jurisdictions", "civilian jurisdictions"). The term may also refer to the type of legal proceedings whereby a court assumes and exercises its decision-making function (e.g. the court's "in personam" or "in rem" jurisdiction (supra)). "Jurisdiction" may be used with respect to a particular type of subject-matter jurisdiction exercised by a court (e.g. the "Admiralty jurisdiction" of the Court of Queen's Bench), as well as with respect to the geographic limits of the territorial jurisdiction of the court (e.g. service "out of the jurisdiction"; assets "within the jurisdiction"). See Chap. XXIV in Tetley, Int'l C. of L., 1994 at pp. 787-819.

Jurisdiction clause - A clause in a bill of lading, a waybill or a charterparty or other contract, providing that any dispute arising under the contract shall be tried before the competent court of a particular State (e.g. "the courts of France") or by a specific court within that State (e.g. the "Tribunal de Commerce de Rouen"). See Tetley, M.C.C., 4 Ed., 2008 at pp. 1905-2009; Tetley, Int'l. M. & A. L., 2003 at p. 107; Tetley, "<# DocLink("jurisdiction.pdf"); #>" (publisbed in Jurisdiction and Forum Selection in International Maritime Law. Essays in Honor of Robert Force (Martin Davies, ed.), Kluwer Law International, The Hague, 2005, Chapter 6 at pp. 183-263). See also: "Forum non conveniens".


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Kahn-Freund, Sir Otto, General Problems of Private International Law, Sijthoff, Leyden, 1976.


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Laches - A common law term derived from the Courts of equity, referring to the failure of a plaintiff to assert his claim within a reasonable time, which alone or with other circumstances, causes prejudice to his debtor or to third parties, resulting in the dismissal of his tardy suit on equitable grounds. Laches is frequently invoked in admiralty courts, especially in the United States where there are few statutes of limitation applicable to maritime claims. See Tetley, M.L.C., 2 Ed., 1998 at pp. 857, 863-868, 882-883, 901, 908-909; Tetley, Int'l C. of L., 1994 at pp. 559, 673-677, 687-688, 691, 698.

Lafleur, E. (1889-1920), The Conflict of Laws in the Province of Quebec, Théoret, Montreal, 1898. The earliest Canadian text on the conflict of laws.

Lagarde, Paul. See Batiffol & Lagarde.

Lasok & Stone, Conflict of Laws in the European Community, Professional Books, Abingdon, 1987.

Law of the flag- The conflict of laws rule, still reflected in many national laws and international conventions, which subjected various maritime law matters to the law of the flag or port of registry of the ship. The concept bore the imprint of nineteenth-century theories of the law of the citizen, espoused by Napoleon Bonaparte and Mancini. Today, the emergence of flags of convenience, double-flagging, flagging out, and the increasing insistence in many international conventions on a "genuine link" between the flag and the ship, have reduced the importance of the law of the flag to merely one contact, or connecting factor, among others in maritime conflicts of law. See for example, Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 and Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119. See Tetley, Int'l C. of L., 1994 at pp. 175-224.

Law of the Person ("lex patriae") - Wherever a person was a citizen, he/she had their "laws" follow them throughout the world. The French Emperor Napoleon Bonaparte promoted this approach in the first Civil Code of France (1804). He believed that the French Civil Code was superior to all other forms of law, and thus French citizens should benefit from it, wherever they were. The original Civil Code of France, at the third paragraph of article three, invoked the law of the citizen for questions of status and capacity. Mancini advanced the lex patriae theory further in the second half of the nineteenth century. The law of the flag, as a concept, was very similar to the concept of the law of the citizen, or person, of Napoleon and Mancini. See Tetley, Int'l C. of L., 1994 at pp. 8-9, 93, 185.

LeFlar, Robert Allen (1901-1997) See American conflicts revolution (supra); Better Law (supra); see also LeFlar, McDougal & Felix, 4 Ed., American Conflicts of Law 1986.

"Lex causae" - The law applicable to the case. See Tetley, Int'l C. of L., 1994 at pp. 606, 695.

"lex fori" - The law of the forum. See for example Tetley, Int'l C. of L., 1994 at pp. 306-308 or Chap. 17 at pp. 533-587.

lex fori theory of conflicts of law - Refuting the vested rightsdoctrine espoused by Beale, Walter W. Cook, in his lex fori theory of conflicts of law, argued against the notion that any right, including a foreign right, can be vested. Instead, Cook contended that courts do not "enforce" rights created under foreign law, but rather enforce domestic rights, which they themselves choose to create and enforce. Implicit in Cook's theory is a bias in favour of the law of the forum, or a "homeward trend," demonstrating a preference for the application by American judges of local law. Cook, Walter W., The logical and legal bases of the conflict of laws, Cambridge, Mass., Harvard Univ. Press, 1942; Tetley, Int'l C. of L., 1994 at pp. 9-10, 24-26.; Tetley, <# DocLink("canlook.pdf"); #> (1999) 38, No. 2, Columbia Journal of Transnational Law at pp. 309-310.

"Lex loci contractus" - The law of the place of conclusion of the contracting. See Tetley, Int'l C. of L., 1994 at p. 303.

"Lex loci damni" - The law of the place where the injury occurs. In other words, if an injury appears in another country, the laws of that country governs, provided that the tortfeasor should have foreseen that the damage would occur there. Sect. 3126 of the Quebec Civil Code.

"Lex loci delicti" - The law of the place of the tort/delict.

"Lex loci solutionis" - The law of the place of performance of the contract. See Tetley, Int'l C. of L., 1994 at p. 303.

"Lex maritima" ("ley maryne") - A body of oral rules, customs and usages relating to navigation and maritime commerce, the first elements of which may be traced back to the Rhodian Law (c. 800 B.C.), and which developed in medieval Western Europe from the ninth to the twelfth centuries as part of a wider, customary mercantile law (the "lex mercatoria" or "Law Merchant", infra), administered by merchant judges.  The lex maritima was gradually codified in early maritime law compilations, such as the Rôles of Oléron in the twelfth century, the Consolato del Mare in the fifteenth century and the Laws of Wisby in the sixteenth century. It underlies much of contemporary maritime law, not only in civilian countries, but even in common law jurisdictions such as England and Canada, and, in particular, may be found in the "general maritime law" (supra) of the United States. See Tetley, M.L.C., 2 Ed., 1998 at pp. 7, 12-13, 48, 55-56, 59, 477; Tetley, Int'l. C. of L., 1994 at pp. 181-185, 302, 389, 671, 868; Tetley, "The General Maritime Law - The Lex Maritima" (1994) 20 Syracuse J. Int. L. & Comm. 105-145; reprinted in [1996] ETL 469-506.

"Lex mercatoria"("law merchant")  - A body of oral, customary mercantile law which developed in medieval Europe and was administered quite uniformly across Europe by merchant judges, adjudicating disputes between merchants. The lex mercatoria originally included the lex maritima (supra). In the contemporary world, some (although not all) scholars believe there exists a modern lex mercatoria, defined to include certain transnational trade usages and commercial customs recognized internationally by the mercantile community, and possibly extending to certain international conventions and even national laws pertaining to international economic relations. International commercial arbitration is frequently cited as a field in which the modern lex mercatoria is operative. See Tetley, M.L.C., 2 Ed., 1998 at pp. 7, 10, 12, 33, 55-56, 60, 477, 1239; Tetley, Int. C. of L., 1994 at pp. 181-185, 389, 417-419, 671, 868; Tetley, "The General Maritime Law -The Lex Maritima" (1994) 20 Syracuse J. Int. L. & Comm. 105-145, at pp. 109-114 and 134-142; reprinted in [1996] ETL 469-505 at pp. 472-478 and 497-504.

Liability policy - As opposed to an indemnity policy, the liability policy covers the insured against his responsibility and does not require that he have first paid the claim. See Tetley, Int'l. C. of L., 1994 at pp. 365-366.

Lifting the Corporate Veil - see Corporate Veil (supra).

"Lis alibi pendens" - The defence that a lawsuit is pending elsewhere, between the same parties and concerning the same issues. Tetley, Int'l C. of L., 1994 at pp. 554, 796, 809. See also art. 27 of E.C. Regulation 44/2001 of December 22, 2000 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (O.J.E.C. L 012/1, 16.01.2001), in force in all Member States of the European Union, except Denmark, as of March 1, 2002; the Brussels Convention 1968, art. 21; Seguros Del Estado, S.A. v. Scientific Games, Inc. 262 F.3d 1164 at p. 1169 (11 Cir. 2001); Cargill Grain Co. v. Foundation Co. of Canada [1965] S.C.R. 594 at pp. 596-597; Quebec Code of Civil Procedure, art. 165(1).

Loussouarn & Bourel, Droit International Privé, Dalloz, Paris, 1993.

Lowenfeld, Andreas F. (b. 1930). Prescient author of articles on conflicts of law, especially international arbitration and international business law, and of Conflict of Laws, Matthew Bender, 2 Ed., 1998. See Tetley, Int'l C. of L., 1994 at pp. 15, 17, 18.

Lugano Convention 1988- The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, adopted at Lugano on September 16, 1988 (O.J.E.C. 1988 L 391/1) and in force as of May 1, 1992, establishes uniform rules on jurisdictionand the recognition and enforcement of judgments in civil and commercial matters as between the States of the European Union (supra) and those of E.F.T.A. (the European Free Trade Association, made up of Iceland, Liechtenstein, Norway, and Switzerland).  See W. Tetley, Int’l. C. of L., 1994 at pp. 809 and 856-858; W. Tetley, Intl. M. & A. L., 2003 at p. 422.  N.B.: Austria, Finland and Sweden are no longer members of E.F.T.A., having joined the European Union.


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Mancini, Pasquale Stanislao (1817-1888). See Law of the Person (supra). See also in general E. Jayme, Pasquale Stanislao Mancini, Internationales Privatrecht Zwishen Risorgimento Und Praktischer Jurisprudenz, 1980; Tetley, Int'l C. of L., 1994 at pp. 8, 93, 185.

Mandatory rules - In the conflict of laws, mandatory rules are compulsorily applicable rules of law, found in applicable international conventions or national statutes, which cannot be contracted out of. In some cases, they may also be rules, which apply regardless of the law otherwise applicable under the forum's rules of private international law. Mandatory rules frequently give effect to social and economic policies deemed by the country concerned to be of overriding importance, particularly in fields such as consumer protection, employment, monetary and fiscal policy. In maritime law, the Hague/Visby (supra) and Hamburg Rules (supra) on the carriage of goods by sea, and various national statutes making those rules compulsorily applicable, are examples of mandatory rules. The Rome Convention 1980 (infra) recognizes mandatory rules of the sole connected law (art. 3(3)), of a closely connected law (art. 7(1)) and of the forum (art. 7(2)), as well as specific mandatory rules on consumer contracts (art. 5(2)), employment contracts (art. 6(1)) and contracts concerning immoveable property (art. 9(6). See Tetley, Int'l C. of L., 1994 at pp. 101-102, 124-131 and 166-170. See also Quebec Civil Code, arts. 3076, 3079, 3111 second para., 3117 first para. and 3118 first para.

Mareva Injunction - An injunction issued by the courts of the United Kingdom and other British Commonwealth countries, on the motion of a plaintiff at the beginning of or during a suit, enjoining the defendant from removing from the jurisdiction, and/or from dealing with, specified assets (real or personal, moveable or immoveable), in cases where it appears to the court that without the grant of such an injunction, the plaintiff's recovery on his claim will be jeopardized. The injunction was first granted by Lord Denning M.R. in 1975 in Nippon Yusen Kaisha v. Karageorgis [1975] 2 Lloyd's Rep. 137 (C.A.), and the name "Mareva" derives from Lord Denning's second decision issuing such an injunction, in Mareva Cia. Naviera S.A. v. International Bulkcarriers (The Mareva) [1975] 2 Lloyd's Rep. 509 (C.A.). In the United Kingdom, the Mareva injunction is now provided for by legislation, at sect. 37(3) of the Supreme Court Act 1981 (U.K. 1981 c. 54). See Tetley, M.L.C., 2 Ed., 1998 at pp. 987-997, 1001-1006; Tetley, Int'l. M. & A. L., 2003 at pp. 409-411. In the United Kingdom, the Mareva injunction is now known as a "freezing injunction" (or "freezing order) under the Civil Procedure Rules 1998 (S.I. 1998/3132), in force April 26, 1999, and such an injunction may be granted either to restrain the removal from England and Wales of assets located in that jurisdiction or to restrain dealing with any assets worldwide, pursuant to the Civil Procedure Rules 1998, Part 25 (Interim Remedies), at Rule 25.1(1)(f) and Practice Direction Part 25 (Interim Injunctions) at para. 6. Examples of both types of freezing injunction are provided in the annexes to that Practice Direction. On worldwide freezing injunctions, see, for example, Dadourian Group International Inc. v. Simm [2006] 3 All E.R. 48 (C.A.). Mareva injunction does not exist in the United States. See Grupo Mexicano de Desarollo v. Alliance Bond Fund, Inc. 527 U.S. 308, 1999 AMC 1963 (U.S. Supr. Ct. 1999). For the existence of the Mareva injunction in Canada see Aetna Financial Services Ltd. v. Feigelman [1985] 1 S.C.R. 2.

Mayer, Pierre, Droit International Privé, 7 Ed., Montchrestien, Paris, 2001.

McDougal, Luther Love - See American conflicts revolution (supra); see also Best Law (supra); see See Tetley, Int'l C. of L., 1994 at pp. 15, 448-449, see also L.L. McDougal III, "Toward Application of the Best Rule of Law in Choice of Law Cases", (1934) 35 Mercer L. Rev. 483; L.L. McDougal III, "Private International Law: Ius Gentium Versus Choice of Law Rules or Approaches", (1990) 38 Am. J. Comp. Law 521; McDougal, Felix, Whitten, 5 Ed. American Conflicts Law, Transnational Publishers, 2001.

McLeod, James Gary - The Canadian authority who in the Dicey and Morris/Restatement fashion, proposes two hundred and five rules to the conflicts of law. The first forty-seven rules refer to generalities and to jurisdiction, but the remainder consists of specific and detailed rules for specific issues. McLeod cites both English and Canadian jurisprudence, which he criticizes and synthesizes to formulate the proposed rules. He does, nevertheless, accept that issues such as domicile, residence and situs are really only connecting factors. See McLeod, Conflicts of Law 1983 ; Tetley, Int'l. C. of L. 1994 at p. 24.

Methodology - A fifth approach to solving conflict of laws problems, which permits the identification of the "properly applicable law." A methodology given by Tetley in Int'l. C. of L., 1994 at pp. 35-43, presents a consistent logical system for resolving conflicts problems, preferable to the four traditional approaches to solving numerous conflicts problems that are outlined and criticized in Tetley, Int'l. C. of L. at pp. 3-34 (viz., 1)  single concepts or principles; 2) multiple numbered rules; 3) general texts, commentaries and essays; and 4) national legislation and international conventions. See also an implied methodology in The New German Tort Conflicts Rules, German Civil Code 1999, arts. 40-42.

Morris, John Humphrey Carlile (1910 - ) In The Proper Law of a Tort, (1951) 64 Harv. L. Rev. 881 at p.888, Morris introduced the term "proper law of the tort", which he defined as "…the law which, on policy grounds, seems to have the most significant connection with the chain of acts and consequences in the particular situation before us." The concept of the "closest and most real connection", as seen in Dicey & Morris, in The Conflict of Laws, 11 Ed., 1987 at pp. 1161-1162 and the 12 Ed., 1993 at p. 1230, is the basic concept of most conflict of laws legislation, national or international. Morris' concepts of "the most significant connection" / "the closest and most real connection" in contract (see Morris and Cheshire, "The Proper Law of a Contract in the Conflict of Laws" (1940) 56 L.Q. Rev. 320) and tort is probably the greatest single contribution ever made to the theory and practice of conflict law. It was first contemplated by Westlake (infra). See Tetley, Int'l. C. of L., 1994 at pp. xviii, xix, 10-11, 25, 28.

Morse, Commentary, Commentary on the Contracts (Applicable Law) Act, Current Law Statutes, 1990 c. 36, Butterworths, London, 1992 at pp. 36-1 to 36-47.

"most significant connection" - The principle of the conflict of laws according to which the "proper" (i.e. applicable) law of a contract or tort is the law which, on policy grounds, appears to have the most significant connection with the chain of acts and consequences in the particular case at hand. This connection is assessed by consideration of the "connecting factors," or "contacts" (supra), linking the legal situation concerned with the different jurisdictions involved. The term was used by J.H.C. Morris in his renowned essays, "Torts in the Conflict of Laws" (1949) 12 Modern Law Rev. 248 and "The Proper Law of a Tort" (1951) 64 Harv. L. Rev. 881. In contract conflicts, the corresponding term generally used in the United Kingdom and British Commonwealth countries today is "closest and most real connection". See, e.g., Dicey and Morris, The Conflict of Laws, 11 Ed., 1987 at Rule 180. In tort, the term "most significant relationship" (infra) has the same meaning. See, e.g., Dicey and Morris, ibid. 12 Ed., 1993 at Rule 202; Morris, Conflict of Laws, 2000; see Westlake (infra); Tetley, Int'l. C. of L., 1994 at pp. 10-12, 13, 27, 42, 438.

"most significant relationship" - The conflict of laws principle that requires that the "proper" (applicable) law be that of the state having the closest and most real connection with the facts of the case concerned. The term was derived from "most significant connection" as first used by J.H.C. Morris and was introduced into American private international law by Willis M. Reese, the principal author of the Restatement (Second) of the Conflict of Laws, 1969, where it figures prominently. See, e.g. sect. 145 re tort and sect. 188 re contract. See Tetley, Int'l. C. of L., 1994 at pp. 12-13, 27, 42.

Multimodal carriage [Fr.: "transport multimodal"] [Span.: "transporte multimodal"] [Ital.: "trasporto multimodale"] [Ge.: "Multimodaler Transport"] - Multimodal carriage is the transport of goods by two or more carriers using two or more types of carriage (i.e. truck, rail, sea and air). The Convention on International Multimodal Transport of Goods, 1980 (the Multimodal Convention 1980) was adopted by the United Nations, but is not in force. See Tetley, Int'l. C. of L., 1994 at p. 818.

Multiple numbered rules - An approach to conflict of laws whereby solutions to conflict problems are sought in private codifications of numbered rules, presumably providing one conflict rule for every possible legal relationship. Examples may be found in the rules propounded in the Restatement Second of the Conflict of Laws infra and in Dicey & Morris, supra. See Tetley, Int'l C. of L. 1994 at pp. 23-25.


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National legislation and international conventions - An approach to the conflict of laws whereby conflicts problems are solved by the application of conflict rules enacted by national legislation (e.g. the Quebec Civil Code 1994 at arts. 3076-3168) or international conventions (e.g the Rome Convention 1980).

New York Convention 1958 - The "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" was signed on June 10, 1958 in New York: 21 U.S.T. 2517, 330 U.N.T.S. 3. This convention deals with the recognition of foreign arbitral awards (supra) and the enforcement of arbitration clauses (supra). See Tetley, Int'l. C. of L., 1994 at pp. 392-393, 397-400.

North, P.M. - Contract Conflicts, North-Holland, Amsterdam, 1982; see Cheshire & North (supra).

Noscitur a sociis - The rule of law that holds that the meaning of a contract is derived from reading it as a whole. Where parts of a contract contradict each other, a court must restrict the meaning of, or reject, the word or clause that does not adhere to the general meaning of the contract, namely the parties' intent. See Tetley, Int'l. C. of L., 1994 at p. 627.

Nygh, Peter Edward (1933 - ) An Australian judge and one of the leading Australian commentators on Conflicts of Laws. See Nygh with Davies, M., Conflict of laws in Australia, 7th ed., 2002, see also Tetley, Int'l. C. of L., 1994 at p. 25.


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"obiter dictum" - ("by the way…"), referring to a finding of law in a decision where that finding was based on issues not properly before the court. It is an opinion expressed by a court upon a question of law, which is not necessary to the decision of the case before it. See The Third Approach (infra); see also Tetley, Int'l. C. of L., 1994 at pp. 102-103, 131-132, 561.

Obligatory forum court statute - In the conflict of laws, an obligatory forum court statute is a national statute or international convention, which is compulsorily applicable whenever any case on the subject of that statute or convention is heard in the courts of the State in question. Most legal authors do not distinguish obligatory forum court statutes from public order (infra) or mandatory rules (supra) of the forum, but such statutes are distinguishable from both those concepts, in that they are obligatorily applied by the forum court, whenever a case involving their subject matter is tried in such a court, rather than because of any connecting factor (contact) linking the case to the law of that forum (State). An example of this type of statute is the United Kingdom's Merchant Shipping Act 1995, U.K. 1995 c. 21, at sect. 185(1) and Schedule 7 Part I art. 15, its provisions give effect in the U.K. to the Limitation Convention 1976 and require the Convention to be applied whenever limitation proceedings are instituted before the courts of any State party to the Convention, thereby making the Convention compulsorily applicable to any such proceedings taken in any U.K. court no matter where the collision took place. Obligatory forum court statutes are rare and can be avoided in jurisdictions which have adopted the principle of forum non conveniens (supra). See Tetley, Int'l. C. of L., 1994 at pp. 40-41, 43, 102-103, 131-132, 561.

Order of proof - The order (arrangement) in which a number of facts must first be proven by the claimant, followed by other facts proven by the defendant and finally, the counterproof by the claimant. The order of proof, for example, of a cargo claim under the Hague or Hague/Visby Rules must be distinguished from the conduct of a trial, supra. The order of proof of the Hague or Hague/Visby Rules is a part of those Rules and must be recognized as part of the substantive proper law of all contracts of carriage subject to those Rules. The conduct of the trial and formalities of the forum court, on the other hand, are purely of questions of practice of the lex fori. See additionally burden of proof, conduct of the trial and formalities of the forum court, supra; Tetley, Int'l. C. of L., 1994 at p. 64; Marine Cargo Claims, 4th ed., 2008, Chapter 6.


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Pennsylvania rule - An almost irrefutable presumption of causation in ship collisions in American maritime law, established by the United States Supreme Court's decision in The Pennsylvania, 86 U.S. (19 Wall.) 125 at p. 136 (1874), whereby when a ship, at the time of the collision, is in violation of a statutory rule, that violation is deemed to be at least a contributory cause of the collision. The presumption may only be rebutted by proof that the violation could not have been a cause of the collision. See Tetley, Int'l C. of L., 1994 at pp. 472, 484-485, 494, 510, 601-602, 607; Tetley, "The Pennsylvania Rule - An Anachronism?" (1982) 13 JMLC 127. The Pennsylvania rule in the conflicts of law is substantive, not procedural. Tetley, Int'l C. of L., 1994 at pp. 472, 484-485, 494, 510, 601-602, 607; See I.S.K. v. U.S.A., 510 F. 2d 875, 1975 AMC 287 (9 Cir. 1975).

Piercing the Corporate Veil - see Corporate Veil (supra).

"Place of machinery" or "centre of gravity" - is the contact introduced by Robert Merkin in respect of insurance law, being "the law of the place in which the process of the formation of the agreement primarily took place.". See Tetley, Int'l C. of L., 1994 at p. 357-358.

Prescription - A time limitation in the civil law, by which a right may be acquired ("acquisitive prescription") or an obligation extinguished ("extinctive prescription") by the passage of a specified period of time. Whereas extinctive prescription in the civil law results, for the potential plaintiff, in the loss of the right itself, the expiry of a time limitation (infra) in the common law usually results only in the loss of the right to sue. In contemporary civil law, prescription is usually understood as substantive, rather than procedural, and thus governed by the law applicable to the relevant claim. See, for example, the Swiss Federal Statute on Private International Law of December 18, 1987, art. 148(1), and the Québec Civil Code 1994, art. 3131, as well as the Rome Convention, 1980 (infra), art. 10(1)(d). See generally Tetley, Int'l. C. of L., 1994, Chap. XXI at pp. 667-713.

Presumption - An inference. Some presumptions are refutable while others are deemed to be irrefutable. Presumptions are also classified as "of fact" or "of law". A presumption of fact is the conclusion that, because one fact exists or is true, another fact exists or is true. If no new facts arise to contradict the presumption, it is evidence of proof of the fact. For example, in some jurisdictions if a married woman has a child, her husband is presumed to be the father. A presumption of law is an assumption required by law whenever a predetermined set of facts arises, e.g. in criminal law the accused is presumed innocent until proven guilty beyond a reasonable doubt. Presumptions in the conflict of laws have their own proper law. See Chap 18 in Tetley, Int'l C. of L., 1994 at pp. 591-616.

Presumption of validity - An assumption, where there is doubt as to the applicable law, that the parties intended the legal system under which the clause or contract would be valid (in a situation where contract or clause is valid under one legal system, but invalid under another one). See Bunge North American Grain Corp. v. S.S. Skarp. [1933] Ex. C.R. 75 at pp. 77 and 78; Tetley, Int'l. C. of L., 1994 at pp. 268-269.

"Prima facie" - ("at first sight") a rule whereby a particular fact constitutes evidence of a state of affairs, unless contradicted by other stronger, admissible evidence. See, e.g., the Hague and Hague/Visby Rules art. 3(4), under which the issue of a clean bill of lading is prima facie evidence of the receipt by the carrier of the goods as described in the bill, and the similar provisions of the Hamburg Rules art. 16(3) and of the Pomerene Act, old sect. 22 (49 U.S. Code sect. 102, now 49 U.S. Code sect. 80113(a). See also The Atlas [1996] 1 Lloyd's Rep. 642.

Principles of preference - Believing that a just result was the paramount goal of choice of law decisions, David F. Cavers (supra) called on courts to analyze the controlling policies underlying the different competing laws and the concrete results which their application would entail in the given case. These results were then to be appraised from the standpoint of justice or broader considerations of social policy. The process, argued Cavers, would eventually result in the development of criteria for assessing the competing social values advanced by competing rules, so that the preferable rule could be identified. Ultimately, these criteria came to be known as Cavers' "principles of preference."

Private International Law - See Conflict of Laws, supra.

"pro hac vice" - "for this occasion". See Baumwoll Manufactur von Carl Scheibler v. Furness [1893] A.C. 8 at p. 16 (H.L.). where it was held that the demise charterer of a ship is regarded as the vessel's owner "pro hac vice" during the term of the charterparty. Tetley, Int'l. C. of L., 1994 at pp. 249, 259.

Proper law - The principle of the conflict of laws according to which the law applicable to a given legal situation should be the law having the closest and most real connection to the case. The term "proper law of the contract" was first used by Westlake in A Treatise on Private International Law, with principal reference to its practice in England, 2 Ed., 1880, sect. 201 at p. 237, who defined it as "the law of the country with which the contract has its most real connection". The term was taken up by Morris and Cheshire in their essay "The Proper Law of a Contract in the Conflict of Laws" (1940) 56 L.Q.R. 320 and was later used by Morris in his essays "Torts in the Conflict of Laws" (1949) 12 Modern L. Rev. 248 and "The Proper Law of a Tort" (1951) 64 Harv. L. Rev. 881. The "proper law" is arguably the most important concept in contemporary conflict of law theory. See for example, Drew Brown Ltd. v. Orient Trader (The) [1974] S.C.R. 1286. See Tetley, Int'l. C. of L., 1994 at pp. 10-11.

Properly applicable law - The law which has the closest and most real connection (or most significant relationship) with the contract or tort, based upon the connecting factors (contacts). The properly applicable law may be identified by the application to any conflict of laws problem of a consistent methodology (supra), such as that proposed in Tetley, Int'l C. of L., 1994 at pp. 35-43, 41-42.

Proportionate fault - The rule for apportioning damages in tort / delict, whereby each party whose fault has contributed to the total loss or damage is held liable for that loss or damage in a proportion corresponding to that party's fault or negligence. Proportionate fault is the system of apportionment of damages recognized historically by the civil law and later codified into various civil codes.

At common law, however, proportionate (comparative) fault only replaced the old common law contributory negligence (supra) rule (which precluded any recovery by a plaintiff whose fault or negligence had contributed to his loss or damage in even the slightest degree) when the United Kingdom enacted the Law Reform (Contributory Negligence) Act, 1945, 8 & 9 Geo. 6, c. 28, although several Canadian common law provinces had enacted similar legislation some twenty years earlier. In maritime law, proportionate fault replaced the traditional equally divided damages (supra) rule of apportionment for ship collision when the United Kingdom, Canada and other British Commonwealth countries enacted national statutes giving effect to the Collision Convention 1910 (supra). In the United States, proportionate fault in ship collisions was imposed by the U.S. Supreme Court's decision in United States v. Reliable Transfer Co. 421 U.S. 397, 1975 AMC 541, [1975] 2 Lloyd's Rep. 286 (1975). In Canadian maritime law, proportionate fault replaced contributory negligence in respect of maritime torts other than ship collisions pursuant to the Supreme Court of Canada's decision in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210, (1997) 153 D.L.R.(4th) 385. See Tetley, Int'l. C. of L., 1994 at pp. 478-489; Tetley, M.L.C., 2 Ed., 1998 at pp. 49-50; M.C.C., 4 Ed., 2008 at pp. 1502-1503, 1525-1528.

Pryles, Michael Charles - Australian commentator on the conflicts of laws who uses "The Third Approach" (infra) in his writings with Sykes, E.I. (infra). See Sykes & Pryles, Australian Private International Law, 3. ed., 1991; Syke & Pryles, Conflict of Laws 3. ed., 1988; see also Tetley Int'l. C. of L., 1994 at p. 25.

Public order/public policy - [Fr.: "ordre public"] [Span.: "orden público"] [Ital.: "ordine pubblico"] [Ge.: "öffentliche Sicherheit und Ordnung"] - In domestic law, public order (a civil law term) refers to domestic rules and legal principles reflecting lofty standards of morality and social conduct in a civilized society, while public policy (a common law term) refers to fundamental principles of natural justice found in a state's constitution, bill of rights, laws, regulations, precedents and accepted customs. In the conflict of laws, international public order/public policy refers to the general principle whereby courts may refuse to enforce contracts or foreign judgments or foreign arbitral awards which they deem to be repugnant to the forum's essential principles of morality and justice, or, in some cases, to the basic policies and interests of the forum State. In the United States, the concept of public policy in conflicts theory and practice has been subsumed, at least partially, by the American theory of interest analysis and the quest for equity. International public order/public policy is found in both the codes and jurisprudence of civilian jurisdictions and the case law of common law jurisdictions. It is also to be found in international conflict of law conventions and instruments, such as the Rome Convention 1980 at art. 16, the Brussels Convention 1968 and Lugano Convention 1988 at art. 27(1), the New York Convention 1958 at art. V(2)(b) and the UNCITRAL Model Law 1985 at art. 36(1)(b)(ii), as well as in national statutes giving effect to them. See Chap 5 in Tetley, Int'l C. of L., 1994 at pp. 95-133 and 821-861; Tetley, "Maritime Law as a Mixed Legal System" in (1999) 23 Tul. Mar. L. J. pp. 317-350 at p. 329.

Punitive damages - Damages awarded in addition to normal damages for bad faith or excessively improper acts of the defendant in contract or tort or even during a court action. They are usually granted by statute and at times excluded by statute (Hague/Visby Rules at art. 4(5)(b)). They are only now appearing in modern civilian jurisdictions (e.g. Quebec Civil Code 1994, at art. 1621 c.c.q.) See Tetley, M.L.C., 2 Ed., 1998 at p. 238 and Tetley, M.C.C., 4 Ed., 2008 at pp. 801-808.


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Quasi in rem jurisdiction - An American term referring to jurisdiction (supra) exercised by way of the attachment over the chattels of a defendant who cannot be found within the district. See Supplemental Rules B and E of the Supplemental Rules for Certain Admiralty and Maritime Claims. See also Tetley, Int'l. C. of L., 1994 at pp. 795-796, 830; Tetley, M.L.C., 2 Ed., 1998 at pp. 940, 954.


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Rabel, Ernst (1874-1955) - Professor of Law at the Universities of Leipzig, Basel, Kiel, Göttingen, Munich, Berlin, Ann Arbor and Harvard. In 1926, Rabel was the first Director of the Kaiser Wilhelm (now known as Max Planck) Institute for Foreign and International Private Law in Berlin. He was also a member of the Institute for the Unification of Private Law in Rome. See The Conflict of Laws: A Comparative Study, Ann Arbor, Univ. of Michigan Press, 2 ed., 1958, vol. 1, pp. 47-56. See also Tetley, Int'l C. of L., 1994 at p. 146.

Rafferty, Nicholas, gen. ed., Private International Law in Common Law Canada, 2 Ed., 2003, Emond Montgomery Publications, Toronto.

"ratio decidendi" - ("reason for deciding"), which refers to a finding of law in a decision, where the finding was based on the issues properly before the court. It is legal reasoning essential to the decision that the court must take to decide the case.

Recognition of foreign judgments - In the conflict of laws, the rules and principles applied by courts in determining whether or not to recognize and enforce a judgment rendered by a foreign court or an arbitral award rendered by a foreign arbitral tribunal.

Reese, Willis Livingston Mesier (1913- ) - Best known for the Restatement Second, 1969, where he took the "most significant connection" rule of J.H.C. Morris and turned it into a set of multiple rules based on the principle that the applicable law is the law which has the most significant relationship. See American Conflicts revolution (supra); see also "Choice of Applicable Law", 52 Colum. L. Rev. 959 (1952); "Substantive Policies and Choice of Law", 2 Tuoro L. Rev. 1 (1986); Tetley, Int'l C. of L., 1994 at pp. 12, 13, 24.

Reinsurance - Refers to the insuring of a risk or part of a risk, by the principal insurer with another insurer known as the reinsurer. In other words, it is insurance of all or part of one insurer's risk by a second insurer, who accepts the risk in exchange for a percentage of the original premium. See Tetley, Int'l C. of L., 1994 at pp. 361-364.

"renvoi" - [Span.: "reenvío"] [Ital.: "rinvio"] [Ge.: "Verweisung"]  - In the conflict of laws, the French term renvoi refers to the application of the conflict rules of one state by the court or tribunal of another state, in order to solve a conflict of laws problem. Renvoi developed in the nineteenth century, as a reaction to the territorial theory in an effort to secure greater uniformity and equity in conflicts decisions. Single renvoi (e.g. partial, imperfect, or receptive renvoi or renvoi simpliciter) is the referral by the forum court to the conflict rules of a foreign state, but not to that state's renvoi rules. This may result in a reference back to the forum's domestic law ("remission") or a reference to the domestic law of a third state ("transmission"). Double renvoi (e.g. perfect, total, true or integral renvoi, total reference, or the foreign court principle) is the referral by the forum court to the conflict rules (including the renvoi rules) of a foreign state. Thus the forum court applies the law specified by the foreign conflicts rules, including the foreign renvoi rules, in an effort to render the decision, which the foreign court would render if it were seized of the case. Double renvoi appears to be limited to England. Renvoi has been subjected to criticism by legal authors and is increasingly excluded in national laws and international conflict of laws conventions (e.g. the Rome Convention 1980, infra, at art. 15) that should be rejected. See Chap. 4 in Tetley, Int'l. C. of L., 1994 at pp. 69-93. See also art. 3080 of the Quebec Civil Code and the U.K. Arbitration Act, 1996, c.23, sect. 46(2).

"res ipsa loquitur" - ("the thing speaks for itself"), the presumption, for example that damages caused by an inanimate object, without human intervention, result from some fault or negligence on the part of the owner or possessor of the object in whose custody it was at the time it caused the harm. Tetley, Int'l C. of L., 1994 at p. 608.

"res judicata" - [Fr.: "chose jugée"] [Span.: "cosa juzgada"] [Ital.: "cosa giudicata"] [Ge.: "Rechtskräftig entschiedene Sache"] - ("the thing having been adjuded"), referring to the principle that once a court of competent jurisdiction has rendered a final and conclusive decision in a dispute, the same cause of action may not normally be tried again. In the conflict of laws, by virtue of res judicata, a court is estopped from retrying a case, which has been the object of a final and conclusive judgment by a competent court or arbitral tribunal in another jurisdiction. See Tetley, M.C.C., 4 Ed., 2008 at pp. 1964-1965; Tetley, Int'l C. of L., 1994 at pp. 831-832, M.L.C., 2 Ed., 1998 at p. xviii.

Residence - The place where one actually lives, as distinguished from domicile. Domicile in contrast usually means bodily presence and an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. See also art. 4(2) of the Rome Convention, 1980.

Restatement (Second) of the Conflict of Laws - Adopted on May 23, 1969 by the American Law Institute at Washington, D.C., was mainly the work of one man, in this case Willis L.M. Reese (supra), who agreed to insert governmental interest analysis into the The Restatement. See Tetley, Int'l. C. of L., 1994 at pp. 24-25.

"restitutio in integrum" - "restoration in full", referring to the civilian principle, also recognized at common law and frequently applied in admiralty law, requiring that the successful plaintiff be fully compensated by the final judgment of the court for all the losses and damages which the breach of contract or the commission of the tort or delict caused him. It requires that the victim of the breach of contract or the tort/delict be placed in the same position he was in before the harmful event occurred. In admiralty law, the principle has notably been applied to permit the awarding of damages for pure economic loss, the granting of judgments in foreign currency and the ordering of pre-judgment interest as an integral part of damages from the date of the casualty. See Tetley, M.C.C., 4 Ed., 2008 at p. 751-753, Tetley, Int'l C. of L., 1994 at pp. 719-721, 736-737, 741, 743, 752, M.L.C., 2 Ed., 1998 at p. 1060.

Rio Rules 1977 - [Fr.: "Règles de Rio 1977"] [Span.: "Reglas de Rio 1977"] [Ital.: "Regole di Rio 1977"] [Ge.: "Rio Regeln 1977"] - The draft International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction, Choice of Law and Recognition and Enforcement of Judgments in Matters of Ship Collision, approved by the CMI Conference at Rio de Janeiro on September 30, 1977, but which is not in force.  For a commentary and the text of the Rio Rules 1977, see [1978] LMCLQ 14; See Tetley, Int'l. C. of L., 1994 at pp. 469-470, 816-817, 1027-1031.

Rome Convention, 1980 - The "Convention on the Law Applicable to Contractual Obligations" (E.E.C. 80/934) in force April 1, 1991, is probably the most important conventions on private international law, and applies to all nations of the European Union. See Tetley, Int'l. C. of L., 1994 at pp. 1032-1045, with a brief commentary at pp. 1045-1048.


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"saisie conservatoire" - [Span.: "embargo preventivo"] [Ital.: sequestro conservativo"] [Ge.: "Sicherungsbeschlagnahme"] - The civil law procedure, known in English as the "conservatory attachment", whereby, on motion by a plaintiff, at the beginning of or during a suit, specified assets of the defendant (real or personal, moveable or immoveable) may be seized by the court, as security for the plaintiff's claim. See Decree no. 67-967 of Oct. 27, 1967, arts. 29-30 as amended (France) and arts. 733-739 Code of Civil Procedure (C.C.P.) re "seizure before judgment" (Québec). The American "attachment" under the general maritime law and Supplemental Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims is the equivalent of the "saisie conservatoire". See Chap. 26 in Tetley, M.L.C., 2 Ed., 1998 at pp. 958-985. Tetley, "Arrest, Attachment, and Related Maritime Law Procedures" (1999) 73 Tul. L. Rev. 1895-1985 at pp. 1940-1948.

Sauveplanne, J. Georges - Private International Law, International Encyclopedia of Comparative Law, vol. III, chap. 6, Renvoi, J.C.B. Mohr, Tubingen, 1990.

Savigny, Friedrich Carl von - Conflict of Laws, first published 1849 (English translation by Guthrie) 1869.

Scoles, Eugene F. & Hay, Peter - These general American commentators use "The Third Approach" (infra) to analyze and discuss conflicts of laws. In their work they also place emphasis both on interstate and international aspects of conflict. See also Scoles, Hay, Borchers, and Symeondies, 3 Ed., Conflict of Laws 2000; Tetley, Int'l. C. of L., 1994 at pp. 7, 25.

Siegel, David D., Conflicts in a Nutshell, West, St. Paul, Minn., 1994. Tetley, Int'l. C. of L., 1994 at p. 25.

Single concepts (single principles) - The approach to conflict of laws where the solution to conflicts is found in one or a very few concepts or principles. See Tetley, Int'l C. of L. 1994 at pp. 7-23. See also Napoleon, supra, and Mancini, supra.

"stare decisis" - ("to stand by decisions"), the common law principle which obliges an inferior court to follow the clear findings in law of a superior court of the same jurisdiction. Supreme courts and inferior courts may also hold themselves bound by their own decisions. See Tetley, M.L.C., 2 Ed., 1998, at pp. xviii, 1205; M.C.C., 4 Ed., 2008 at pp. 51-65. Nota bene: "Stare decisis" is an abbreviation of the full Latin maxim, "stare decisis et non quieta movere", meaning "stand by decisions and do not disturb the calm". See Telstra Corp. Ltd. v. Treloar (2000) 102 FCR 595 at p. 605 (Fed. Ct. Aust.).

Statute of Frauds - A collective term describing the various statutory provisions that render unenforceable certain types of contracts unless they are evidenced by a writing. See for example, California's Statute of Frauds, found at Cal.Civ.Code §1624. As a general rule, types and categories of facts that a court will admit to prove the existence of the contract depend on the proper law of that contract, while the formal method in which proof is made is a question of the forum. See Tetley, Int'l. C. of L., 1994 at p. 65.

Stay - A procedure whereby a court does not dismiss an action or dismisses it conditionally on grounds of forum non conveniens (supra). See Arctic Explorer, 590 F. Supp. 1346 at p. 1361, 1984 AMC 2413 at p. 2434 (S.D. Tex. 1984); but retains jurisdiction (supra)and calls on the plaintiff to take suit in the more convenient forum. The conditions are usually that the defendant agree to appear in the foreign court within a certain delay, accept jurisdiction there and agree to any final judgment. See Tetley, Int'l C. of L., 1994 at pp. 529, 802-803 and 819.

Story, Joseph (1779-1845) Joseph Story was greatly influenced by Ulrich Huber (1636-1694) in respect of both comity and vested rights. The concept of "comity" was effectively enshrined in article IV(1) of the Constitution of the United States with regard to full faith and credit between states. In his Commentaries on the Conflict of Laws, Foreign and Domestic, (1st ed. 1834), territoriality was based on, namely: 1) the laws of a jurisdiction only apply within that jurisdiction's territory or only to citizens of that jurisdiction; 2) all jurisdictions are equal and independent, and may legislate freely as sovereign entities; 3) the laws of each nation exclusively govern all conduct within that nation's territory; 4) each state possesses exclusive jurisdiction over its territory, and thus no state can bind person or property located outside of its territory. On these four foundations Story articulated his theory of the "comity of nations," requiring each state to recognize the legitimate laws of other states, in expectation that those other states would in turn recognize the laws of the first state, provided that the laws being recognized were not contrary to public policy. See Comity (supra); Tetley, <# DocLink("canlook.pdf"); #> (1999) 38, No. 2, Columbia Journal of Transnational Law at p. 311; Tetley, Int'l. C. of L., 1994 at pp. 9, 34.

Strict liability - Liability without regard to mens rea (the guilty mind) or scienter (knowledge). For example, strict liability may result in damages being awarded in the United States in marine pollution cases against ships or owners of cargo, where there is no fault whatsoever. See Tetley, M.L.C., 2 Ed., 1998 at p. 149.

"Sua sponte" - A Latin term meaning "of one's own accord". The term is frequently used to refer to the right of a court to consider a legal issue "of its own motion", even if none of the parties have raised or addressed the issue in their written or oral pleadings. See, for example, U.S. Express Lines, Ltd. v. Higgins 281 F.3d 383 at pp. 388-389, 2002 AMC 823 at p. 827 (3 Cir. 2002), referring to "... the duty of federal courts to examine their subject matter jurisdiction at all stages of the litigation sua sponte if the parties fail to raise the issue."

Submission - An agreement to accept the jurisdiction (supra) of a foreign court. Submission can also be agreeing to a valid foreign jurisdiction clause (supra) in a contract. Appearance in a suit solely to contest jurisdiciton is not submission. See Tetley, Int'l C. of L., 1994 at pp. 829-830.

Subrogation - A legal fiction whereby a creditor (the "subrogor") is deemed to have assigned his rights and claims against his debtor to a third person (the "subrogee") when he receives payment of the debt in question from that third person. The civil law distinguishes "legal subrogation" (occurring by the sole operation of the law upon payment by the third person) from "conventional subrogation" (occurring by the express assignment of the creditor's rights at the time he receives payment from the third person). At common law, subrogation may be legal, contractual or by judicial consent. See Chap. 33 in Tetley, M.L.C., 2 Ed., 1998, at pp. 1215-1240.

Substance/Procedure Dichotomy - It has been the traditional and accepted view that matters that were deemed substantive were subject to their own proper law, even if it was a foreign law. On the other hand, matters that were deemed to be procedural were to be subject to the law of the forum (the lex fori). The substance/procedure dichotomy is difficult to put into practice, while many exceptions and exceptions to exceptions were introduced into it over the years. In addition, in common law jurisdictions in particular, matters of "procedure" came to include various ancillary matters which were really "substantive" in character, or which are better understood as having their own "proper law" (e.g. cross-defences, time limitations, presumptions, damages). As a result, the utility of the "substance/procedure" dichotomy is questionable and is being discarded. See the Supreme Court of Canada in Tolofson v. Jensen [1994] 3 S.C.R. 1022 at pp. 1071-72. See also Tetley, "New Developments in Private International Law" (1996) 44 American J. of Comp. Law 647 at p. 656; See Chap. 3 in Tetley, Int'l. C. of L., 1994 at pp. 47-68.

Sykes, Edward I. - Australian general commentator on the conflicts of laws: Sykes writing with Pryles, M.C. (supra) use the "The Third Approach" (infra) to discuss and analyze conflicts of laws. See Sykes & Pryles, Australian Private International Law, 3. ed., 1991; Sykes & Pryles, Conflict of Laws, 3. Ed., 1987; Sykes, International and Interstate Conflict of Laws (1981); see also Tetley, Int'l. C. of L., 1994 at p. 25.

Symeonides, Symeon C. (1949 - ) Amongst other things, Symeonides is the author of 13 annual surveys of American choice of law cases, published in the American Journal of Comparative Law. See (2000) 48 Am J. of Comparative Law 143 for the survey for 1999. See also Conflict of Laws: American, Comparative, International: Cases and Materials (1998); Private International Law at the End of the 20th Century: Progress or Regress? XVth International Congress of Comparative Law (2000).


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Teleological / Substantive Approach - Envisaging a new ius gentium, Friedrich K. Juenger refuted previous conflict of law theories by creating a multistate justice theory of conflicts of law that is founded upon a result-oriented quest for rules that will foster "stability and fairness." Juenger called this result-oriented reasoning quest a teleological analysis, which like functional analysis (supra), is criticized for being uncertain, arbitrary, homeward-looking, and for being a disguised search for equity, rather than a principled application of law. See Tetley, Int'l. C. of L., 1994 at p. 15, 16, 448-449.

Tetley, William (1927 - ) International Conflicts of Maritime Law, Blais, 1994; see Tetley's website being "Tetley's Maritime & Admiraly Law" at http://www.mcgill.ca/maritimelaw/; Tetley W. "Current Developments in Canadian Private International Law", (1999) Canadian Bar Review 152-199 ; <# DocLink("mixedjur.pdf"); #> 199-3 Uniform Law Review (N.S.) 591-619 and 1999-4 Uniform Law Review (N.S.) 877-907, reprinted in (2000) 60 La L. Rev. 677-738 ; Tetley W. <# DocLink("canlook.pdf"); #> (Corrective vs. Distributive Justice), (1999) 38 Columbia Journal of Transnational Law 299-373.

The Third Approach - to conflicts law of theory. Under this approach conflict law problems are solved by general commentaries, texts and essays. It does not have the all-embracing numbered rules of the Second Approach found for example in the Dicey & Morris. Nor does it have a single solution of the First Approach found in the theory of the Statutists or Story's "comity" and territoriality. Eminent authors of this approach include Cheshire & North in the U.K., Scoles & Hay in the U.S.; Batiffol & Lagarde, Mayer and Loussouarn & Bourel in France; Castel and Groffier in Canada, Sykes & Pryles and Nygh in Australia; see also J.G. Collier, Conflicts of Laws (2002); A.E. Ehrenzweig, Conflicts in a Nutshell (1974); R.H. Graveson, Conflict of Laws (1974); A.J.E. Jaffey, Introduction to the Conflict of Laws (1988); and David D. Siegel, Conflicts in a Nutshell (1982) to name but a few. See also Tetley, Int'l. C. of L., 1994 at p. 25-26.

Time limitations - A common law term (also known as "time-bars") referring to periods of time, prescribed by statutes ("statutes of limitation") or international conventions, the expiry of which results in the loss of the right to sue to enforce a claim or right. Although the common law traditionally viewed most time limitations as procedural and therefore subject to the lex fori (supra), they are increasingly understood as substantive, and thus governed by the law applicable to the underlying contract or tort. See, for example, the Rome Convention, 1980 (supra), art. 10(1)(d). See generally Tetley, Int'l C. of L., 1994, Chap. XXI at pp. 667-713. See also prescription (supra).

True conflict - A legal problem where one or more jurisdictions has a genuine interest in having its law applied. Brainerd Currie (supra) was instrumental in developing the distinction between true and false conflicts. Tetley, Int'l. C. of L., 1994 at p. 12, 14, 448.


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UNCITRAL - The United Nations Commission on International Trade Law (UNCITRAL) was established by a United Nations General Assembly Resolution in 1966. The aim of UNCITRAL is to harmonize and unify international trade law. It was instrumental in the preparation of the Hamburg Rules, 1978. In addition, UNCITRAL has been active in the area of international commercial arbitration and has prepared the UNCITRALModel Law on International Commercial Arbitration, 1985 (infra), the UNCITRAL Arbitration Rules, the UNCITRAL Conciliation Rules, and the UNCITRAL Notes on Organizing Arbitral Proceedings. Head office: Vienna International Centre, P.O. Box 500, A-1400 Vienna, Austria. Tel.: +43 1 26060 local 4060 or 4061; fax: +43 1 26060 5813. E-mail: uncitral [at] uncitral [dot] org; web site: http://www.uncitral.org/.

UNCITRAL Model Law, 1985 - The "UNCITRAL. Model Law on International Commercial Arbitration" was adopted June 21, 1985. (Text can be found in: Report of the United Nations Commission on International Trade Law, 18th Session, 3-21 June 1985, Supplement no 17 (A/40/17) of the Official Records of the Fortieth Session of the General Assembly, United Nations, New York, 1985.) See the document at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html.


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Vested rights doctrine - The vested rights doctrine, espoused by Joseph Beale and promoted in England by A.V. Dicey, held that the duty to recognize another jurisdiction's law was not dependent on comity, with its expectation of reciprocity, but rather on the mere fact that such rights had been validly created under the foreign law of their place of origin, i.e. that they were vested rights. Beale thus stated, "A right having been created by the appropriate law, the recognition of its existence should follow everywhere. Thus an act valid where done cannot be called in question anywhere." Beale, A Selection of Cases on the Conflicts of Laws, vol. 3, 1902 at p. 517. See also Tetley <# DocLink("canlook.pdf"); #> (1999) 38 Colum. J. Transnat'l L. 299-373 at pp. 308-309. See Tetley, Int'l. C. of L., 1994 at pp. 9, 193.

Von Mehren, Arthur Taylor (1922 - ) Von Mehren, in conjunction with Donald T. Trautman developed the theory of functional analysis (supra) and rejected the "lex fori" as a solution of general application in the conflict of laws. See Conflict of Laws: American, Comparative, International (Cases and Materials), with S. Symeonides and W. Perdue (West Group, 1998); Tetley, Int'l C. of L., 1994 at p. 13.

Vouching-in - The common-law procedure (not generally accepted) where a third party is given notice of a suit or arbitration and is deemed to be bound by the facts or law arrived at in the original suit or arbitration. Should there be a subsequent suit or arbitration, however, the vouchee is not a defendant. See Ferrostaal v. American Commercial 2002 AMC 986 at pp. 987-989 (N.D. Ill. 2002). See also Michael H. Bagot, Jr. & Dana A. Henderson, "Not Party, Not Bound? Not Necessarily: Binding Third Parties to Maritime Arbitration" (2002) 26 Tul. Mar. L.J. 413-461.


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Weintraub, Russell Jay (1929 - ) See American conflicts revolution (supra); see also Weintraub, 3 Ed., International Litigation & Arbitration: Practice and Planning 2001; Weintraub, 4 Ed., Commentary on the Conflict of Laws 2001; Weintraub (co-author), 12 Ed., Cases and Materials on Conflict of Laws 2004. See Tetley, Int'l. C. of L., 1994 at pp. 13-14, 448.

Westlake, John (1828-1913), A Treatise on Private International Law, with principal reference to its practice in England, 2 Ed., Foundation, Mineola, N.Y. 1991. He was the first person to use the term "proper law of the contract" which he defined as "the law of the country with which the contract has its most real connection". See Westlake, 2 Ed., 1880 at sect. 201, p. 237. See Tetley, Intl. C. of L. 1994 at p. 10.