Lex loci
Inconflict of laws,the termlex loci(Law Latinfor "the law of the place" )[1]is a shorthand version of thechoice of lawrules that determine thelex causae(the laws chosen to decide a case).[2]
General principles
[edit]When a case comes before acourt,if the main features of the case (particularly the parties and the causes of action) are local, the court will then apply thelex fori,the prevailingmunicipal law,to decide the case. However, if there are "foreign" elements to the case, the court may then be obliged, under conflict of laws, to consider whether it hasjurisdictionto hear the case (seeforum shopping). The court must thencharacterisethe issues to allocate the factual basis of the case to its relevant legal classes. The court may then be required to apply thechoice of lawrules to decide thelex causae,the law to be applied to each cause of action.[3]
Relevant rules include the following.
Lex causae
[edit]Lex causae(Latinfor "law of the cause" ), inconflict of laws,is the law chosen by the forum court from the relevantlegal systemswhen it judges aninternationalor interjurisdictionalcase.It refers to the usage of particular local laws as the basis or "cause" for the ruling, which would itself become part of referenced legal canon.
Conflict of laws regulates alllawsuitsinvolving foreign law if the outcome of a legal action would differ by the laws applied. Once the forum court has ruled that it hasjurisdictionto hear the case, it must then decide which possible law is to be applied.
Lex concursus
[edit]Thelex concursus(or, sometimes,lex fori consursus) is theLatinterm for the "law of the place of insolvency proceedings" relating tocross-border insolvency.[4][5]It is also sometimes used more generally in relation to the distribution of a limited fund within the control of the court.[6]
Lex domicilii
[edit]Thelex domiciliiorlex loci domicilii[2]is theLatinterm for "law of the domicile" in theconflict of laws.Conflict is the branch ofpublic lawregulating alllawsuitsinvolving a "foreign" law element where a difference in result will occur depending on which laws are applied.
Lex fori
[edit]Lex fori(Latin:the law of the forum) is achoice of lawrule. If applicable, it provides that the law of thejurisdictionorvenuein which a legal action is brought applies.[7][2]
When a court decides that it should, by reason of the principles ofconflict of law,resolve a given legal dispute by reference to the laws of another jurisdiction, thelex causae,thelex foristill governs procedural matters.[8]
Lex loci actus
[edit]In theconflict of laws,lex loci actusorlex actus[2]is the law of the place where the act occurred that gave rise to the legal claim. This is often confused withlex loci delicti commissiwhich is where the tort is committed. While typically they both point to the same location, in the case of product liability, for example, thelex loci actuswould be the place of manufacturing, while thelex loci delicti commissiwould be the place of injury.
Lex loci arbitri
[edit]Thelex loci arbitriis theLatinterm for "law of the place wherearbitrationis to take place "in theconflict of laws.Conflict is the branch ofpublic lawregulating alllawsuitsinvolving a "foreign" law element where a difference in result will occur depending on which laws are applied.
When a case comes before acourtand all the main features of the case are local, the court will apply thelex fori,the prevailing municipallaw,to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:
- whether the forum court hasjurisdictionto hear the case (see the problem offorum shopping);
- it must thencharacterisethe issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
- then apply thechoice of lawrules to decide which law is to be applied to each class.
Thelex loci arbitriis an element in the choice of law rules applied to cases testing the validity of acontract.As an aspect of thepublic policyoffreedom of contract,thepartiesto an agreement are free to include aforum selection clauseand/or achoice of law clauseand, unless there is a lack ofbona fides,these clauses will be considered valid. If there is no express selection of aproper law,the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific geographical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen astateas the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be thelex causaeapplied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.
Lex loci celebrationis
[edit]Lex loci celebrationisis aLatinterm for a legal principle inEnglish common law,roughly translated as "the law of the land (lex loci) where it was celebrated ". It refers to the validity of the union, independent of thelaws of marriageof the countries involved: where the two individuals have legal nationality or citizenship, or where they live (reside or are domiciled). The assumption under thecommon lawis that such a marriage, when lawfully and validly celebrated under the relevant law of the land, is also lawful and valid.[citation needed]
British legal tradition
[edit]In theUnited Kingdom,the jurisdiction ofEngland, or England and Wales,as well as in many other legal jurisdictions largely orpartlyfollowing the British tradition of jurisprudence, in addition to their modified local versions of the English common law, the legal principle behind the legal term was modified, qualified and further elaborated, both by legal developments in the common law (Lord Dunedin'sBerthiaume v D'Astouscase (HL1930) (AC79), in which Dunedin in theAppellate Committee of the House of Lordsruled that "If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceedings or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremonial proceedings if conducted in the place of the parties’ domicile would be considered a good marriage" ), as well as by codification by Statute (Foreign Marriage Act 1892,55 & 56Vict.,Chapter 23).[citation needed]Under the English common law, whether a party needs to be present is treated as a formality of themarriage ceremony,so if aproxy marriageis valid by the law of the place where the marriage was celebrated then it will be recognised in England.[9][10]
Lex loci contractus
[edit]In theconflict of laws,thelex loci contractusis theLatinterm for "law of the place where the contract is made".[11][2]
Lex loci delicti commissi
[edit]Thelex loci delicti commissiorlex loci delictus[2]is theLatinterm for "law of the place where the delict [tort] was committed"[12]in theconflict of laws.Conflict of laws is the branch of law regulating alllawsuitsinvolving a "foreign" law element where a difference in result will occur depending on which laws are applied.
The term is often shortened tolex loci delicti.
Lex loci protectionis(Schutzlandprinzip)
[edit]Lex loci protectionis(Latin: "[the] law of the place where the protection is [claimed]" ) is achoice of lawrule applied to cases concerning the infringement ofintellectual property(IP) rights, such ascopyrightsorpatents.
It stipulates that the law applied to such cases is the law of thelocus protectionis,that is, the law of the country for which legal protection for the intellectual property is claimed.[13]Consequently, the law of the country where the intellectual property was created or registered is not applied.
Lex loci protectionisis generally accepted as the prevailing choice of law rule for IP rights, at least as concerns the existence, validity, scope and duration of the rights.[13]Article 8 (1) of theEuropean Union'sRome II Regulationcodifies it as follows:
The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.
Lex loci rei sitae(orLex situs)
[edit]Lex loci rei sitae(Latinfor "law of the place where the property is situated" ), or simplylex situs,[14]is the doctrine that the law governing the transfer of title to property is dependent upon and varies with the location of the property, for the purposes of theconflict of laws.Conflict is the branch ofpublic lawregulating alllawsuitsinvolving a "foreign" law element if a difference in result will occur, depending on which laws are applied.
Lex loci solutionis
[edit]Lex loci solutionis(Latin:"law of the place of performance" ), inconflict of laws,is the law applied in the place of an event.
Lex loci solutionisis one of the possible choice of law rules applied to cases that test the validity of acontractor that deal with atort.For example, if a persondomiciledinBoliviaand a person habitually resident inGermanymake a contract by e-mail and agree to meet inArizonato research a book, there would be several possibly-relevant choice of law rules:
- thelex domicilii,lex patriaeor the law of habitual residence to determine whether the parties had thecapacityto enter into the contract;
- lex loci contractus,which could be difficult to establish since both parties never left their ownstate(reliance on postal rules foroffer and acceptancein the several putativelex causaemight produce different results)
- lex loci solutionismight be the most relevant since Arizona is the most closely connected to the substance of the obligations assumed
- theproper law
- lex fori,which might havepublic policyissues if one of the parties is aminor.
Lex patriae
[edit]Lex patriae(Latin:law of the fatherland,in modern usage,nationality law), inconflict of laws,is the system ofpublic lawapplied to alawsuitif a choice is to be made between two or more laws that would change the outcome.
Locus in quo
[edit]Locus in quomeans, inBritishcommon law,the "scene of the event"[15]
The phrasecomes fromtheLatinlanguage, meaning "The place in which".[16][17][18]
In civil cases,locus in quorefers to "the place where thecause of actionarose ", that is, the land to which thedefendanttrespassed.[19]In criminal cases, it may be used to refer to thescene of the crime.It may also be used, more generally, as any place mentioned, that is, thevenueor place mentioned.[20][21]
See also
[edit]References
[edit]- ^Ehrlich, Eugene (1987) [1985].Amo, Amas, Amat and More.New York: Harper Row. p.170.ISBN0-06-272017-1.
- ^abcdefBlack's Law Dictionaryabridged Sixth Edition (1991), p. 630.
- ^"Lex Causae Definition".www.duhaime.org.Retrieved2020-12-20.
- ^"Lex concursus definition".LexisNexis.Retrieved21 June2023.
- ^"Lex fori concursus definition".Law Insider.Retrieved21 June2023.
- ^Bankers Trust v Todd Shipyards, The Halcyon Isle[1981] AC 221.
- ^Green, Michael S. (1995)."Legal Realism, Lex Fori, and the Choice-of-Law Revolution".Yale Law Journal.104(4): 967–994.doi:10.2307/797110.JSTOR797110.
- ^Collins, Lawrence (2000).Dicey and Morris on the Conflicts of Laws(13th ed.). London: Sweet & Maxwell. p. 157.
- ^Apt v Apt[1948] P 83;CB (Validity of marriage: proxy marriage)[2008] UKAIT 80.
- ^Christopher Clarkson and Jonathan Hill (2011).The Conflict of Laws(4th ed.).Oxford University Press.p. 21.ISBN9780199574711.
- ^Starr Printing Co. v. Air Jamaica, 45 F.Supp.2d. 625 (1999 U.S. Dist.)
- ^Lex loci delicti.
- ^abRosen, Jan (2012).Individualism and Collectiveness in Intellectual Property Law.Edward Elgar Publishing. p. 57.ISBN9780857938978.
- ^Lex Loci Rei Sitae Law and Legal Definition.
- ^Clickdocs.com.
- ^Latin phrases site.
- ^Merriam-Webster dictionary.
- ^Answers.com.
- ^Legal phrase web page.(Technically, it was called Trespassquare clausum fregit,"Wherefore he broke the close".)
- ^Infoplease.com.
- ^Bartleby's,citing E. Cobham Brewer, Dictionary of Phrase and Fable (1898).
External links
[edit]- The Rome II Regulation,relating toLex loci protectionis