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International Litigation: Doctrine of Lex Fori Vs. Lex Loci

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IRPJ: Intergovernmental Research and Policy Journal

Article Domain: Revue intergouvernementale de recherche et de politique
International ISSN: 2663-6832
https://irpj.euclid.int
Litigation
A peer-reviewed, inter-disciplinary academic journals under the authority of UN Treaty 49006/49007
Journal Efficiency Factor©: 18 of 21 (y. 2020)

International Litigation: Doctrine of Lex Fori Vs. Lex Loci

By: SYED Hassan, P.Engg, LLB (Hons), PhD
1
Author affiliation(s): Doctoral Candidate at the Faculty of Economics and Business Management, University Telematica
Internazionale UniNettuno, Rome, Italy: Doctoral Research - EU Law GDPR, LLM Candidate at Pôle Universitaire EUCLIDE

Email contact: h.syed1@students.uninettunouniversity.net

ARTICLE INFO ABSTRACT

Article history:
Friedrich Carl von Savigny described ‘international uniformity of results’ as the foundational
Received: 03/25/2020 objective of international litigation. Savigny argued for realism in the private international to
Accepted: 03/31/2020 provide transnational law with the ability to respond to the evolving legal problems of the
Posted Online: 04/02/2020 global world. Justice Story of the US Supreme Court stated the importance of uniformity in
judgments in the seminal case of Martin v. Hunter's Lessee in 1816. The principle of comity
allows for the consideration of foreign judgments within the US legal system. Lord Dicey
appealed for the inclusion of private international law in the laws of England in his seminal
Keywords: Lex Fori, Lex Loci,
Litigation, International paper of 1890. International litigation is referred to as the private international law and also
Litigation, Legal Doctrines of as law of conflicts in the legal literature and legal lexicon. The legal doctrines of lex fori
(choice of forum) and lex loci (choice of law) are intrinsically important in the debate for
Litigation, Legal Doctrine,
resolving international disputes for trade, commerce and tort. There is a customary fight over
Jurisdiction, Foreign Jurisdiction,
the jurisdiction issue (lex fori) in international litigation. It is so because if the issue of
Choice of Law, Conflict of Laws,
jurisdiction over the matter is resolved, the application of the choice of law is fairly simple.
Locus Standi, Private
International Law This paper examines the tensions between the two doctrines and their impact on the concepts
underpinning the subject of international litigation.

IGOs/MEAs: United Nations(UN),

European Union (EU), Brussels
Convention on Jurisdiction and the
Enforcement of Judgments in Civil
and Commercial Matters 1968

Submitted:02 April, 2020 Copyright remains with the author(s) Page 1

SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:
 Intergovernmental Research and Policy Journal – 2020
Civil or commercial litigation under the umbrella of
‘international private law’ or ‘international litigation’ potentially
1. Introduction involves matters that have large monetary implications. 8 Legal
scholars argue that international private law and international have
The subject of international litigation or private international
one grand objective namely the ‘international uniformity of
law mainly covers three areas. It covers the international or inter-
result’. 9 German legal scholar Friedrich Carl von Savigny
territorial jurisdiction of courts for civil or commercial litigation,
described this as the key objective of international litigation that
the choice of law to be applied to the cases and finally the
supersedes all other objectives. 10 Savigny argued that private
recognition and enforceability of foreign case law to the matters
international law was needed to give realism that would enable
before the court.1 Within the practitioners of international law, the
transnational laws to respond to the needs of the evolving global
litigation deemed international follows the course of the three main
community.
areas listed above.
This paper examines the international litigation under the
Ulrich Huber, a Dutch jurist in the 19th century explained
prevailing core elements of the lex fori or legal forum (jurisdiction)
international litigation along the lines of “De Conflictu Legum” or
and the lex loci or the choice of laws. Throughout this paper, the
“On the Conflict of Laws.”2 English legal system also follows the
terms conflict of laws, international private law and international
international litigation of civil, commercial or tort matters under
litigation will be used interchangeably.
the label of ‘Conflict-of-Laws’. 3 The European Union (EU)
documents international litigation under the label of ‘private 2. Jurisdiction Vs Choice Of Law
international law’ for statutes, cases and academic legal materials.4
Legal scholars have tried to portray international litigation to
Hartley argues that the label ‘international’ is misleading as be more than just another branch of law. The label of
the subject is as much concerned with inter-State5 legal systems as ‘international’ does not add much to the actual legal practice. Some
it is concerned with sub-state legal systems.6 Hartley is right as the international conventions relating to the international litigation
subject also deals with, for example, the relations between the legal under the title of ‘conflict of laws. The Brussels Convention on
system of Scotland and England verses England and Germany. Jurisdiction and the Enforcement of Judgments in Civil and
Similarly, in the United States (US), the subject deals with legal Commercial Matters 1968 (“the Convention”) is one of the most
relations between the US and other countries including the various noteworthy international conventions for conflict of laws.11 Article
legal systems at the state-level within the US. 1 of the 1968 Convention states, “This Convention shall apply in
The US has established the doctrines of the Full Faith and civil and commercial matters whatever the nature of the court or
Credit Clause within the US Constitution to give recognition to tribunal. It shall not extend, in particular, to revenue, customs or
inter-state laws and judgments. In France, all nationality issues administrative matters.”12 The convention went through a series of
regarding aliens are also covered under the international private developments and is now part of the European Union’s (EU)
law or droit international privé. Under the French Law, the subject robust regime of international litigation that allows for the various
falls under two broad categories of Conflicts de Lois or ‘conflict of EU member state courts to consider the judgments of EU Courts
laws’ and Conflits de Juridictions or the jurisdictional conflicts.7

1Trevor C. Hartley, International Commercial Litigation: Text, Cases and 7Georges René Delaume, “A Codification of French Private International Law,”
Materials on Private International Law (Cambridge University Press, 2009), 49. Can. B. Rev. 29 (1951): 721.
2Ulrich Huber, “De Conflictu Legum Diversarum in Diversis Imperiis,” Lorenzen’s 8 Beth A. Simmons, “Money and the Law: Why Comply with the Public
Selected Essays in the Conflict of Laws, op. cit, no. 1 (1947): 162–180. International Law of Money,” Yale J. Int’l L. 25 (2000): 323.
3 9
Hague Academy of International Law and Academie de Droit International de Hartley, International Commercial Litigation: Text, Cases and Materials on
la Haye, International Litigation and the Quest for Reasonableness: General Private International Law, 58.
Course on Private International Law, vol. 245 (Martinus Nijhoff Publishers, 10
Joachim Ruckert, “Friedrich Carl von Savigny, the Legal Method, and the
1995).
Modernity of Law,” Juridica Int’l 11 (2006): 55.
4Geert Van Calster, European Private International Law (Bloomsbury Publishing, 11Silvio Pieri, “The 1968 Brussels Convention on Jurisdiction and the
2016).
Enforcement of Judgments in Civil and Commercial Matters: The Evolution of
5In this paper, State with a capital ‘S’ refers to countries and state with lower the Text and the Case Law of the Court of Justice over the Last Four Years,”
case ‘s’ refers to sub-units within a State. Common Market Law Review 29, no. 3 (1992): 537–555.
6Hartley, International Commercial Litigation: Text, Cases and Materials on 12Brussels Convention, “Brussels Convention,” last modified 1968, accessed
Private International Law, 52. March 25, 2020, https://curia.europa.eu/common/recdoc/convention/en/c-
textes/brux.htm.

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SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:
 Intergovernmental Research and Policy Journal – 2020
and the member state courts in their civil and commercial ‘form’ and not the ‘substance’ of what Savigny considered to be
litigation.13 the importance of lex fori in transnational litigation.
The question of jurisdiction or lex fori takes precedence over To be more precise, Savigny’s theory gave way to his further
the question of lex loci in international litigation. This is not just a work on the lex fori doctrine that described lex fori as the realism
statement of fact rather it is a truism that has emerged as a legal of the 'seat of the legal relation' in any transnational civil or
realism which has been confirmed in the legal literature.14 Hartley commercial litigation. Savigny considered the possibility of giving
argues that the procedural differences in various legal jurisdictions primacy to a ‘transnational legal order’ over the municipal
such as the rules for discovery, evidential rules and the option to assumption of applying local legislation to any case that had
try cases as jury-trials or judge-only trials makes or breaks civil or foreign elements attached to it. This is a repudiation to the
commercial litigation. 15 It is for this reason that adversarial municipal law of the forum and its assumptive application of
arguments during the initial phases of international litigation focus municipal law in all cases brought before it. Savigny distinguished
on lex fori and not lex loci since the choice of law does not preclude the lex fori and lex loci through his realism of considering the
the adverse impacts of lex fori if not considered carefully by the jurisdictional element as the key to decide the choice of law.
lawyers.16 Legal scholars and practitioners agree that deciding the
Jurisdiction or lex fori remains one of the key issues in the US
choice of the law becomes a small step once the major procedural
legal system. Justice Joseph Story (1779-1845) of US Supreme
issues related to the forum or jurisdiction have been adequately
Court wrote the seminal judgment in the case of Martin v. Hunter's
addressed and decided between the parties to the conflict. Scholars
Lessee, 14 U.S. (1 Wheat.) 304 (1816).19 Justice Story wrote,
describe this as the decision of ‘proper law upon deciding the
proper forum’.17 “the importance, and even necessity of uniformity of decisions
throughout the whole United States, upon all subjects within the
3. Legal Realism of Lex Fori purview of the constitution. the laws, if the treaties and the
Professor Albert A. Ehrenzweig (1906-1974) is one of the most constitution of the United States would be different, in different
respected legal scholars of the twentieth century who wrote states... the public mischiefs that would attend such a state of things
extensively on the topic of international litigation. His work is would be truly deplorable; and it cannot be believed, that they
considered amongst the most progressive and enlightening for could have escaped the enlightened convention which formed the
those who practice international civil and commercial litigation. Constitution”20
Professor Ehrenzweig was a Berkley professor emeritus of law. Justice Story held that the US Supreme Court could
His work has been amply cited in this paper. Professor constitutionally review state court decisions that involved any
Ehrenzweig’s professional rivalry with Professor Edwin W. Briggs federal law matters in the cases under the provisions of the
of Montana Law is legendary. Judiciary Act 1789 Section 25. The question of jurisdiction
Both professors wrote a series of articles about Savigny’s requires the US Supreme Court to exclusively recognise its
theory on lex fori in the UCLA Law Review 1964.18 Both eminent Constitutional function of reconciling any conflicts that arise from
scholars argued about the opposing ‘institutional approach’ to the interpretations of the US federal laws when they come in
Savigny’s lex fori vested rights doctrine. Professor Ehrenzweig conflict with the state law. Such distinctions of jurisdiction are
argued that Savigny held lex fori as the ‘fountainhead of conflict maintained for the supremacy of the jurisdiction of the US
of laws’ and Professor Briggs argued that Savigny considered lex federation if it is challenged under the authority of the state
fori in the context of ‘universal customary law’ to be applied legislation.
uniformly for international litigation of civil and commercial Any legal theory that counters the prominence of lox fori over
cases. While both scholars argued about the interpretation of lex lex loci ignores the right of the litigant over the legal rules for
fori by Savigny, it must be noted that the argument was over the litigation. In most legal systems, Legal realism is also

13Ksenija Vasiljeva, “1968 Brussels Convention and EU Council Regulation No 17Albert A. Ehrenzweig, “A Proper Law in a Proper Forum: A Restatement of Lex
44/2001: Jurisdiction in Consumer Contracts Concluded Online,” European Law Fori Approach,” Okla. L. Rev. 18 (1965): 340.
Journal 10, no. 1 (2004): 123–142. 18Edwin W. Briggs, “An Institutional Approach to Conflict of Laws: Law and
14
Muckleroy McDonnold Jr, “Limitation of Actions--Conflict of Laws--Lex Fori or Reason versus Professor Ehrenzweig,” UCLA L. Rev. 12 (1964): 29.
Lex Loci,” Tex. L. Rev. 35 (1956): 95. 19Frederick Schauer, “The Calculus of Distrust,” Virginia Law Review (1991):
15
Hartley, International Commercial Litigation: Text, Cases and Materials on 653–667.
Private International Law, 58. 20Leonard G. Ratner, “Congressional Power Over the Appellate Jurisdiction of
16Albert A. Ehrenzweig, “Lex Fori--Basic Rule in the Conflict of Laws,” Mich. L. the Supreme Court,” University of Pennsylvania Law Review 109, no. 2 (1960):
Rev. 58 (1959): 637. 157–202.

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SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:
 Intergovernmental Research and Policy Journal – 2020
complementary to existing normative legal theories for policy’ is not the same as ‘public legal policy’ which is a by-
adjudication that place the forum as the starting point to consider product of the Constitution while the former is an executive action.
any litigation for civil or commercial matters. In international
Also, in civil or commercial international litigation, if the
litigation, the question of international judicial jurisdiction is
government legal interests clash with the individual legal interests,
critically analysed based on the effect that it would have on the
then the lex fori would immediately apply and lex loci would
ultimate judgment of the case.
automatically follow the procedural actions of the forum chosen
International litigation based on the doctrine of lex fori by the government. It is for this and other reasons that international
determines the jurisdiction question based on drawing clear litigation carefully considers the lex loci question to protect and
distinctions between jurisdiction in personam and jurisdiction in safeguard the rights of the individuals in cases of civil and
rem. 21 The jurisdiction in personam is jurisdiction over the commercial litigation where the interests may clash with a
person and jurisdiction in rem is the jurisdiction over the property. government or large corporations that enjoy the protection and
patronage of the government.
4. Lex Loci: Choice Of Law Problem
The law of tort or civil wrong rests on the doctrine of lex loci
The lex loci doctrine of the choice of law is considered legal delicti or the place where the wrong was committed. It would then
conceptualism with ‘fuzzy alternatives’.22 Legal scholars consider follow by analogy that wherever the last event occurs that is where
the primacy of the doctrine of lex loci to be best suited for the cause of action for the civil wrong should take place. The right
international arbitration as a central doctrine and not to judicial to seek remedy for the wrong is created with all its legal
adjudication based upon the conflict of laws.23 The reason afforded dimensions under the sovereign laws. The situation becomes
to for such distinction is because the procedural intricacies of slightly ‘fuzzier’ as it was elucidated earlier when lex loci is
differing legal forums are not a consideration in adjudication since applied to civil contracts.
the parties have already accepted the jurisdiction of a particular
forum to adjudicate the matter. Lex loci contractus states that wherever the final act that
resulted in the contract being formed is the right legal jurisdiction
To allow a ‘foreign law’ in a municipal setting injures the that defines the promise as binding. It is also the place (lex fori)
axiomatic assumption in the legal theory of the supremacy of the whose law (lex loci) creates the binding legal obligations giving
domestic legislation stemming from the law-making ability of the rise to contractual duties and all other contract rights. Lex Loci
local parliament. It is, for this reason, the doctrine of lex loci delicti Contractus also carries the added dimension of legal expectations
or the law of the place of the wrong is questioned in contemporary on part of those who have obtained the legal right to be recognised
legal literature. In the US legal system, foreign laws became under the doctrine of locus standi. The choice-of-law theory,
recognized under the ‘Principle of Comity’ in the 19th century.24 therefore, requires that sovereign must uphold the expectations as
US Supreme Court Justice Joseph Story is again attributed with the one of the key policy objectives for lex loci doctrine within the
recognition of foreign sovereign law under the principle of comity legal system.27
in the US civil and commercial litigation under the conflict of
laws.25 The classic European choice-of-law theory rests on three
elements of connectivity. The first is the classification of the
Professor Currie, the eminent US Tort Law professor had situation, second is the domicile of the parties and the third is which
floated an alternative theory to counter the Principle of Comity legal system to be applied to the problem.28 Hartley (2009) argues
under his theory of ‘Government Legal Policy’ doctrine which that any matters concerning an individual “should be governed by
states that “the court should first and always look to its own law to the system of law most closely connected with the individual
govern the case, even if foreign factors are involved”.26 One has to concerned”. 29 Such matters are usually classified under the
be careful in considering Currie’s theory as ‘government legal category of the personal law. Any matters connected with property

21Robert C. Casad, “Shaffer v. Heitner: An End to Ambivalence in Jurisdiction 25Kurt H. Nadelmann, “Joseph Story’s Contribution to American Conflicts Law: A
Theory,” U. Kan. L. Rev. 26 (1977): 61. Comment,” The American Journal of Legal History 5, no. 3 (1961): 230–253.
22Roy Goode, “The Role of the Lex Loci Arbitri in International Commercial 26Brainerd Currie, “Survival of Actions: Adjudication versus Automation in the
Arbitration,” Arbitration International 17, no. 1 (2014): 19–40. Conflict of Laws,” Stanford Law Review (1958): 205–252.
23 27
William W. Park, “The Lex Loci Arbitri and International Commercial David F. Cavers, “A Critique of the Choice-of-Law Problem,” Harvard Law
Arbitration,” International & Comparative Law Quarterly 32, no. 1 (1983): 21– Review 47, no. 2 (1933): 173–208.
52. 28
Robert A. Leflar, “Conflicts Law: More on Choice-Influencing Considerations,”
24William S. Dodge, “International Comity in American Law,” Colum. L. Rev. 115 Calif. L. Rev. 54 (1966): 1584.
(2015): 2071. 29Hartley, International Commercial Litigation: Text, Cases and Materials on
Private International Law, 649.

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SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:
 Intergovernmental Research and Policy Journal – 2020
should be “governed by the law of the place where the property is law should be applied only where there is a good reason for doing
situated”.30 The doctrine of lex situs usually governs such matters so.”
in conflict of laws. Finally, any legal effects of transactions
Case law suggests that courts find the idea of applying foreign
“should be governed by the law of the place where the transaction
law over the law of the forum in cases of contract as well as tort
or event occurs.”31 The location of transaction in conflicts of law
repugnant to the legal traditions involving foreign elements in
is covered under the doctrine of lex loci actus. The contemporary
cases before the US and English courts.36 The argument rests on
international litigation principles in western legal systems follows
the idea that any foreign claim based on the petition to apply
the classical theory of choice-of-law with minor differences
foreign law should not be enforced because it violates the principle
between the common-law and civil-law jurisdictions.
of forum lex fori. Thus, the primacy of lex fori is a persuasive
Lord Dicey opposed the ‘theoretical’ verses the ‘positive’ correction to counter the ‘universalist’ approaches to consider
method in conflicts of law.32 Lord Dicey appealed for the inclusion applying foreign laws over the law of the forum.
of private international law in the laws of England in his seminal
It seems the case law suggests that the conflict of laws rule
paper of 1890. Following Lord Dicey, Professor Cook and
seem to be dissolved if the foreign law is suggested to the court
Professor Lorenzen advocated for the removal of fiction from the
presents an outcome that may be repugnant to the public policy of
law that opposed the positivism which would allow “self-evident
the forum. The invocation of the rule of applying the choice-of-law
principles of right” to emerge in the conflict of laws.33
is rare. The choice-of-law rule is mostly exercised by the courts
The idea that the law to be applied to conflicts that had ‘foreign when the results of applying foreign law do not run counter to local
elements’ but was based on the principles of the territory of law standards of justice and policy under the law of the forum.
violated the norms of natural justice. However, the Courts have
5. Conclusions
successfully used the ‘public policy’ or ‘ordre public’ to escape
applying foreign law. Justice Herbert Goodrich famously wrote The conflict of laws rests on the fundamental principles of lox
about rejecting foreign law on the grounds of public policy as, fori and lex loci. The jurisdictional debate in international litigation
“it is not that the foreign law does not seem so reasonable to arises from the varying procedural rules in legal jurisdictions that
the judge as his own good homemade precedent, but it must appear can drastically alter the outcome of the litigation. The jurisdictional
'pernicious and detestable' or, to borrow Mr. Justice Cardozo's issue becomes even more important if the governmental interests
always effective language, 'violate some fundamental principle of become stark in the matter. The choice influencing factors such as
justice, some prevalent conception of good morals, some deep- the classification of the matter, nature of the property and the
rooted tradition of the common weal.”34 location where the matter took place also impact the lex fori
principle.
Consensus has emerged in legal scholarship that the parties
petitioning the Court to consider foreign law in cases do not violate The inclusion of foreign law in matters with foreign elements
public policy. Rather the legal scholarship views such requests as is not an easy one to reconcile. The law of the forum has always
a petition asking the court to give legal effect to acts committed in created a force within legal reasoning of being the natural course
foreign lands and under the laws prevailing in the land of action. of law in matters before the courts. Lex loci or choice-of-law also
If the court considers the petition to be congenial to the domestic involves constitutional matters such as the government policy and
law but still affronts public policy, the court is not abdicating in public policy. The government policy involves the use of executive
favour of the foreign law rather the court is finding a legal rule to powers while the public policy concerns the legislative process or
accommodate the foreign law in the domestic system. the court's interpretation of legislation that may or may not provide
for the choice-of-law rules.
Professor Albert Ehrenzweig opposes the idea of applying
foreign law in international litigation and advocates the application The simplification of judicial tasks also impacts the choice-of-
of forum law to decide cases with foreign elements.35 Ehrenzweig law and choice-of-forum procedures adopted by the courts that
(1961) argues that the application of forum law is the norm and the may or may not be linked to where the matter originated. The lex
application of foreign law is an exception. Accordingly, “foreign fori and lex loci are matters that the courts decide based on legal

30 Ibid., 650. 34Herbert F. Goodrich, “Foreign Facts and Local Fancies,” Va. L. Rev. 25 (1938):
31 26.
Ibid., 651.
35 Albert A. Ehrenzweig, “Choice of Law: Current Doctrine and True Rules,” Calif.
32
Albert Venn Dicey, “On Private International Law as a Branch of the Law of
L. Rev. 49 (1961): 240.
England,” LQ Rev. 6 (1890): 1.
36Gregory S. Alexander, “Application and Avoidance of Foreign Law in the Law
33Megan Richardson, “Policy Versus Pragmatism-Some Economics of Conflict of
of Conflicts,” Nw. UL Rev. 70 (1975): 602.
Laws,” Comm. L. World Rev. 31 (2002): 189.

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SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:
 Intergovernmental Research and Policy Journal – 2020
choice-influencing considerations rather than some international Pieri, Silvio. “The 1968 Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters: The Evolution of
legal formula which arises from conventions or legal agreements. the Text and the Case Law of the Court of Justice over the Last Four Years.”
These choice-influencing considerations are not a mechanical Common Market Law Review 29, no. 3 (1992): 537–555.
examination of pseudo-rules rather they are based on legislation, Ratner, Leonard G. “Congressional Power Over the Appellate Jurisdiction of the
case law and legal literature arising from centuries of persuasive Supreme Court.” University of Pennsylvania Law Review 109, no. 2 (1960):
157–202.
case law.
Richardson, Megan. “Policy Versus Pragmatism-Some Economics of Conflict of
Laws.” Comm. L. World Rev. 31 (2002): 189.
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Comment.” The American Journal of Legal History 5, no. 3 (1961): 230–253.
Park, William W. “The Lex Loci Arbitri and International Commercial
Arbitration.” International & Comparative Law Quarterly 32, no. 1 (1983): 21–
52.

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SYED Hassan / IRPJ Vol.2020, Issue e20, DOI:

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