Choice of Law

1
Choice of Law

• Choice of law is the question that arises after
  jurisdiction simpliciter is established and the
  court has not exercised its discretion to decline
  jurisdiction
• central question Which law applies?
• the main example of an instance where agreement
  in advance often governs
• problem only arises when someone argues it, and
  only matters if the outcome would be different
• a part of all legal systems

2
Solving Choice of Law Problems

1. characterize the issue (e.g.. substantive vs
   procedural)
2. analyze the connecting factor (e.g.. where the
   tort occurred)
3. apply the law of the country found by following
   the connecting factor (except specific other
   rule or a traditional bar tax, crime, policy)
4. Foreign law must be proven as a fact
5. choice of law rule of the jurisdiction you are in
   (i.e.. no choice about choice of law rules)

3

• commercial law generally more uniform
• divorce no choice of law rule as a matter of
  policy
• most choice of law principles determined by
  common law
• sovereign rt of states to apply the law they
  choose

4
Tolofson v Jenson SCC 1994

• two car accidents one in Saskatchewan and one in
  Quebec, significant advantages of using law of BC
  and Ontario
• rare SCC consideration of a choice of law issue
• traditional approach affirmed lex loci delicti
  to govern
• 2ndy but interesting illustrative determination
  that statute of limitations is substantive
  rather than procedural

5
ideas that carried the day

• LaForest J is pursuing rationality and
  predictability, certainty, as well as
  minimizing constitutional complications
• territoriality the key underpinning principle
  It is to the underlying reality of the
  international legal order, then, that we must
  turn if we are to structure a rational and
  workable system of private international law.
• reviews the developments of early 1990s 40, 41
• given territoriality and comity, as a general
  rule law to be applied is that of the place where
  the activity occurred
• considering Morguard s order and fairness, order
  prevails

6
ideas that were rejected

• competing ideas law would follow the parties
  (exception of the Hague Convention on Traffic
  Accidents) or the forum (McLean v Pettigrew)
• actionable in jurisdiction requirement is
  covered off by the real and substantial
  requirement and by forum non conveniens analysis
• public policy within Canada its effects are
  minimized and constitutionally constrained
• US proper law of the tort rejected bc
  flexibility lead to extreme uncertainty
• the dissentients would prefer to have some room
  for exception