Conflict of laws is not a new problem, as people faced it for the first time during the existence of Ancient Greek autonomy. Today many countries with multi-jurisdictional system are involved in this problem. So what is conflict of laws? “Conflict of laws (or private international law) is a set of rules of procedural law which determine which legal system and the law of which jurisdiction apply to a given legal dispute”. Commonly, they are applied in cases when two companies signed a contract and each company is situated in different country. The term itself takes its origin from situations “where the ultimate outcome of a legal dispute depended upon which law applied and the common law courts manner of resolving the conflict between those laws. Civil lawyers and legal scholars tend to consider conflict laws as private international laws”. Though they have nothing in common with public international laws and are part of municipal laws.
Substance of the conflict of laws is civil behaviours, complicated by a foreign element. In modern jurisprudence there are a lot of opinions concerning the substance of legal regulation of the conflict of laws.
Te most popular is theory about formation of the substance of the international private law from relations civil, family and labour, complicated by a foreign element. It underlines that the substance of conflict of laws are civil legal relationships in broad sense. Thesis about similar nature of these relations (it means that they are also private relations) and presence of special uniting instance – foreign element are the basis of tripartite structure of conflict of laws.
Along with traditional reproach towards international private law, there are concepts expanding or narrowing the range of regulated relations. For example, civil concept is based on the idea that substance of conflict of laws consists of only civil relations, that are only property and personal non-property relations.
Some scholars treat conflict of laws as a group of two types of relations: of traditional triad (civil, labour and domestic relations) and procedural relations (formed in the international civil process and the international commercial arbitration).
In order to individualize relations which are included in the substance of conflict of laws, the term “foreign element’ is used. Foreign element appears in following cases: if one of the sides (a citizen, a legal body or a state) is a foreigner; if the object, due to which some property relations appear, is situated abroad and if some legal facts or events, which were followed by appearing, changing or dismissing of any legal relations, happened abroad. These cases can be present in foreign element in any sequence – either 1, or 2, or all 3.
Conflict of laws has its own specific techniques and methods of regulation of rights and duties of participants of civil legal relations. There are two methods – conflict and substantive.
The conflict method operates by means of applying the rules of conflict of laws that define the law of which state will regulate certain relations. Thus, the conflict method of regulating acts upon referencing to the rules of conflict of laws, who together with certain rules of substantive laws make the conflict mechanism of regulation.
The substantive method of regulating has two types. The first is the international legal type. It appears when rules of substantive laws (non-conflict) are unified by an international agreement that directly regulates relations. The second type of substantive method consists in the operation of national rules of substantive laws which are included in the substance of the conflict of laws.
Conflict of laws is likely to appear in cases between members of large international organizations. Certain actions of some members of these organizations can be considered as violating the law as things that are allowed in one country can be prohibited in another. All these situations can cause international conflict, which will end up in the court. And the unifying law to judge them is international civil law or conflict of laws.
Large companies can be affected by the conflict of laws. The first and the most evident is that there should be some points discussed inside the company and then stated in the agreement. If this wasn’t done, some actions of members can be regarded as unlawful. This is sure to make no good to the reputation of the company and the member which will be considered guilty will certainly be hired. Another point is making an agreement. Some positions written in them may be unacceptable to one of the sides signing the agreement. So the court, in order to regulate civil disputes, must follow rules of conflict of laws. In some cases these rules are the best decision as if one of the sides isn’t a citizen of the country of another side, there’s no other law to regulate their controversy, except rules of conflict of law. Every controversial appeared must be regulated. It will prevent large companies and others from the in future.
References
Briggs, A. (2002). The Conflict of Laws. Oxford: Oxford University Press.
Collier, John G. (2001). Conflict of Laws. Cambridge: Cambridge University Press.
Hayward, R. (2006). Conflict of Laws. n.p.: Cavendish Publishing Limited.
Juenger, Friedrich K. (1993). Choice of Law and Multistate Justice. Kluwer: Martinus Nijhoff.
O’Hara, Erinn A. (1999). Conflict of Laws and Choice of Law. n.p.: George Mason University School of Law.