State (law).html



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Conflict of laws

Preliminiaries

Characterisation Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy Hague Conference

Definitional elements

State · Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens

Connecting factors

Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause

Substantive legal areas

Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts

Enforcement

Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions

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The term State has several meanings in law:

1. in private international law and conflict of laws, State can refer to a well-defined jurisdiction, with its own set of laws and courts. This jurisdiction may either be a sovereign independent State, or a part (State, province, territory, etc.) of such a State.
2. in public international law, State most commonly refers to a sovereign State which is a direct subject of international law

Every State within meaning (2) above is a State within meaning (1) above, but the reverse does not hold. For example, the United States is a State under both definitions, but California is a State only under the first.

This article is primarily about the first definition.

For the purposes of Private International Law, a State is a defined group of people, living within defined territorial boundaries and more or less subject to an autonomous legal system exercising jurisdiction through properly constituted courts.

The usage of the term "State" rather than nation and country is to refer unambiguously to the legal government of a territory, rather than to its people or culture. However, the term "country" is still sometimes used in this way; see for example section 4 of Domicile Act 1982 (Cth.), which defines "country" as "includes any State, province or other territory that is one of 2 or more territories that together form a country." (see domicile (law)).

Examples

In the majority of cases, countries are unitary, i.e. like Italy and Sweden, they only have one legal system and no problem will arise. In the case of countries electing to assume or retain composite or federated status, the extent to which each separated regional unit will constitute a State will be determined by whether that unit has a sufficiently significant volume of laws distinguishable from those applied in other units. Hence, in the territorially separated States constituting the United States, the laws are sufficiently distinctive to elevate them to States for this purpose. However, the use of federal law-making powers means that countries may be single units for some purposes, and constituent States for others. Thus, the fact that Australia, Canada, the United Kingdom, and the United States can and do produce uniform legislation on some topics, does not change the separate status of the States, Canadian provinces, and U.S. States. Dicey and Morris (p26) list the separate States comprising the British Islands: "England, Scotland, Northern Ireland, the Isle of Man, Jersey, Guernsey, Alderney, [Hern] and Sark. . . is a separate country in the sense of the conflict of laws, though not one of them is a State known to public international law." But this may be varied by statute. The United Kingdom is one State for the purposes of the Bills of Exchange Act 1882, and Great Britain is a single State for the purposes of the Companies Act 1985. Beale defines "State" as follows (at § 2.1/2.5)

The civilized portion of the earth is divided up into certain units of territory in each of which a particular law proper to that territory alone prevails, and that territory is for legal purposes a unit.

§ 2.2. What Determines the State. – It has been seen that the existence of separate legal units within the dominions of a single sovereign is a fact, the result of historical accidents.

The use of the word "State" for this purpose is not universally accepted. Some countries and individual authors use "country", "territorial unit", "law unit" or "law district", e.g. in the Australian federation, each State and territory is a law district (see Laurie v Carroll (1958) 98 CLR 310 at 331, per Dixon CJ.. Williams and Webb JJ. Because the lex patriae choice of law rule may select the law of a country that contains more than one legal system, there must be rules to determine which of the several possible laws might apply (e.g. a reference to the law of the United States is actually a reference to one of the U.S. States). A suparanational example of an approach to this situation is contained in Article 19 of the Rome Convention on Contractual Obligations:

States with more than one legal system

1. Where a State comprises several territorial units each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Convention.
2. A State within which different territorial units have their own rules of law in respect of contractual obligations shall not be bound to apply this Convention to conflicts solely between the laws of such units.

Discussion

For the purposes of disciplines such as geography, politics, economics and sociology, it is appropriate to consider the world as divided into countries and, because it is of little significance in those disciplines, simply to add that some of these countries may be federated or otherwise divided into regions or provinces. The focus is on the broad cultural patterns of political allegiance that arise by virtue of citizenship and nationality, e.g. the so-called social contract is that the State, in its nontechnical sense, will defend the interests of its citizens in return for the loyalty of its citizens.

The power to make law is an aspect of sovereignty, but it does not follow that the law is the same throughout a single sovereign's territory. Differences may arise in two ways:

• as new territory is added to old, or as two countries are combined under a single sovereign (e.g. German reunification), the laws of the formerly separate units continue distinct unless and until the sovereign assimilates one into the other. Beale offers this example at § 2.2:

"...when Hawaii was annexed to the United States it remained a separate legal unit; but when Wales was conquered by England it became a part of the new legal unit, England"; and

• when new law is to be made, the sovereign may legislate for only part of the territories either because the territory has been divided into separate units, each with their own legislative bodies, or because a single legislative body limits a new law to only a portion of the territory.

Hence, the extent of territory through which a given law applies is a political rather than a legal question, more often than not, the result of historical accidents involving the division or annexation of territory, conquest and colonisation, federation and decentralisation, all of which affect the extent of territory within which a single law prevails. In the U.S., for example, the relationship between State and federal law reflects the evolving debate between local and national interests and their respective claims to be supreme.

But in these more modern times, it is highly relevant to consider the significance of separate legal systems, particularly if the application of those systems would produce different results on the same set of facts. For example, in some parts of the world, one person may acquire multiple spouses or a spouse of the same biological sex. If such a marriage is validly created in one State, should it cease to be valid if the family travel to another State on holiday? Similarly, if a company is created with certain capacities under one law, should its capacities change if it seeks to trade in another law area? Social mobility is now the norm and trade across different markets is a vital part of the world's economic system. These and many other questions can only be answered by recognising the potential conflicts between State laws, and producing formalised systems to reconcile them. The issue is where these systems should be located.

Public International Law exists to provide a framework within which the relationship between sovereign nation States can be regulated. It provides a system of contract called treaties and offers systems to resolve disputes over territorial boundaries, access to the high seas, etc. But, it is a supranational system and, as such, it has no direct effect on the municipal laws unless each nation waives its sovereignty. Hence, although the Hague Conference on Private International Law makes recommendations, it is for each State to develop its own laws to address and resolve actual conflicts of outcome (although, in the U.S., it is acknowledged that the American Law Institute has devised federal guidelines covering some aspects of the subject). These municipal law systems are termed Private International Law or Conflict of Laws, and fall into four sections:

1. jurisdiction: forum shopping can be a problem and it is necessary for litigants to demonstrate a real connection between their dispute and the court invited to adjudicate;
2. characterisation in which the court allocates the causes of action to their appropriate legal classification subject to any issues of public policy;
3. choice of law: where the result will be different depending on which law is applied, clear and consistent rules must be applied to decide which competing law(s) should be applied (including the issue of renvoi);
4. the chosen law(s) (the lex causae) should be applied: this is not straightforward because the court in one State is being asked to give extraterritorial effect to another State's laws, thereby making its own laws inapplicable (and, arguably, breaching sovereignty).

See also

• domicile
• habitual residence
• nationality
• State

References

• Beale, Joseph H. A Treatise on the Conflict of Laws. [1]
• Dicey & Morris. (1993) The Conflict of Laws 12th edition. London: Sweet & Maxwell Ltd. (pp26/30) ISBN 0-420-48280-6
• McClean, David. (2000). Morris: The Conflict of Laws. London: Sweet & Maxwell Ltd. ISBN 0-421-66160-7