Document Type

Article

Publication Date

10-1975

Keywords

Accommodation of foreign elements, Forum applies a foreign law, Cuba R.R. v. Crosby, Judicial notice statutes, Application of foreign law in the courts, Anpassung, Adaptation of foreign law, Alexander Nekam

Disciplines

Civil Procedure | Conflicts of Law

Abstract

Lying at the heart of all conflicts theories is a recognition that the function of the law of conflicts is to ensure rational and just solutions to controversies involving foreign elements. A just and rational solution is one that somehow accommodates those elements. This does not mean that the foreign law must be applied but simply suggests that at least some attention should be paid to that law in the process of resolving disputes. From these relatively uncontroversial postulates, one moves to the more difficult problem of defining the role of foreign law in the conflicts setting.

Attention in this area is usually focused on the theoretical bases for the displacement of forum law by some foreign rule related to the matter through one or more connecting factors. However, implicit in attempts to develop normative standards for choosing foreign substantive rules is the assumption that those rules can be applied by the forum in some sensible fashion. To assume otherwise renders conflicts rules—other than those which direct the application of forum law in all circumstances—meaningless. But in what sense can it be said that the forum applies any law other than its own? Most commentary on this question has directed itself to such practical concerns as the effect of failing to plead foreign law. While these issues are by no means insignificant, a fuller understanding of the problems involved in the application of foreign law must be based on the premise that foreign law is different in kind from the law of the forum and that this difference frequently affects the way in which the forum treats the foreign law. This article examines the means by which courts in the conflicts setting have attempted to accommodate the relevant foreign elements and attempts to explain what it means for the forum to apply a foreign law. The intent here is primarily descriptive: to clarify what we are talking about when we say that the forum applies a foreign law.

Publication Citation

Published in: Northwestern University Law Review, vol. 70, no. 4 (September-October 1975).