TRADITIONAL & MODERN APPROACHES IN CHOICE OF LAW - 45 PJP 21

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  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Traditional and Modern Approaches in Choice of Law,” 45 PJP 21, available at <insert link> (last accessed on <date>).
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Traditional approaches in resolving conflict of laws problems

Traditional approaches in resolving conflict of laws problems are usually called the lex loci or the lex rules. They are dubbed this way because they are called by their Latin names that start with “lexloci” or “lex.”

A few of these rules are: (a) lex nationalii or the nationality principle, otherwise known as the law of the country of which a person is a national; (b) lex loci rei sitae or the law of the place where the property is situated; (c) lex loci celebrationis or the law of the place of execution or celebration; (d) lex loci contractus or the law of the place of perfection of contract; (e) lex loci solutionis or the law of the place of performance of contract; (f) lex loci voluntatis or the law of the place chosen by the parties; (g) lex loci intentionis or the law of the place intended by the parties; (h) and, lex fori or the law of the court. Another one is lex loci delicti commissi.

The good thing about these traditional approaches is that they meet US Supreme Court Justice Antonin Scalia’s requirement of “pre-announced” rule-based decision-making approaches that limit arbitrary authority and minimize legal administration costs.[1]

Modern approaches in resolving conflict of laws problems

Modern approaches in resolving conflict of laws problems have spawn from elsewhere all over the world. They have been developed due to the perceived rigidity and unfairness that the traditional approaches usually result into.

Some of these modern approaches are: (a) the center of gravity doctrine, otherwise known as grouping of contacts; (b) the SMSR rule; (c) re-characterization; (d) dépeçage; (e) government-interest analysis approach; (f) fundamental fairness analysis; and, (g) Caver’s principles of preference (whether or not a true conflict of laws exists).

The positive feedback about these modern approaches is that they are not straightjacketed by strict norms and they are more or less flexible enough to avoid injustice to the parties involved. For instance, under the doctrine of center of gravity, in a contractual dispute, points of contact or connecting factors are weighed in order to determine the lex causae. The system of laws with more connection to the dispute usually prevails under this analysis.

[1] Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).