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Last update: 26-10-2006
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Applicable law - General Information

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The courts do not always apply the law of their own country.

When you are involved in litigation in a case where not all the facts of the case are connected with the same country, it is not enough to know which court has international jurisdiction to hear and determine the case; there is also a need to establish the law which will be applied by the court in making a decision on the substance of the matter. It is the purpose of the “conflict of law” rules to determine which law will be applied to settle a given international situation.

As international trade and travel expand, so does the risk that a company or an individual might be involved in a dispute having an international element. The international element can be represented by the fact that the parties are of different nationality or that they reside in different countries or that they have entered into a contract concerning a transaction taking place abroad. In the event of a dispute, it is not enough to determine which court has international jurisdiction to hear and determine the case (Jurisdiction of courts); it also has to be established which law will be applicable to determine the substance of the matter.

The courts do not always apply their own country's law - the lex fori - but they sometimes apply the law of another country with which the dispute has a close connection. Take the example of a German-Italian couple who were married in Portugal. They now live in France and want to divorce, so they seize the French courts. In theory, there are four sets of law that might have an interest to be applied – the French, the Portuguese, the Italian and the German - and consequently these laws can be regarded as being in “conflict” as to which of them should apply.

The purpose of the conflict of law rules is to determine which substantive law is applicable to a particular legal relationship (contracts, personal injuries, family, successions, matrimonial property regimes, property in general, etc.).

In the process of elaboration of these rules the legislation takes into consideration a number of factors, such as the legitimate expectations of the parties, the principle of proximity - which associates a legal relationship with the law of the country with which it is most closely connected - and the notion that certain parties, such as minors, consumers and employees, deserve special protection.

The conflict of law rules are part of what is known as private international law, but despite the name they are not international by origin: historically, every State has its own national system of conflict of law rules. By clicking on the flag of a Member State you will find useful information about the rules applicable in that State.

The conflict of law rules have been harmonised within Europe in certain areas. For more information click on “Community law”.

Certain conflict of law rules have also been harmonised at an international level. For more information click on “International law”.

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Last update: 26-10-2006

 
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