2. Choice of Law Flashcards
What is the Vested Rights analysis (First Restatement)?
1) Determine the substantive law
2) Apply the choice of law rule
3) Localise the rule
4) Apply the law towards all the issues
- Unless depecage is applied (which applies different laws to different issues)
What is the Most Significant Relationship test (Second Restatement)?
1) Balance connecting facts
2) If connecting facts are too broad, balance policies of forum state
- Interstate needs
- Relevant policies
- Other states’ policies
- Parties’ expectations
- Substantive law’s basic policies
- Predictability/Uniformity of results
- Ease of determining foreign law
What is the Governmental Interest analysis?
1) Determine the forum’s law
2) Determine whether forum has interest + whether forum requested other state’s law should be applied + whether conflict of interests exist
- True conflict: Consider other policies
- False conflict: Apply other state’s law
3) Determine whether forum non conveniens is applicable
- Dismiss case
4) Determine other states’ laws
- Other state with interest
- Other state with closely resembling law
- Forum
What is Renvoi?
Forum state’s choice of law rules refer to another state’s law
- Divorce/Marriage
- Real property transaction
(Rejected by several states)
What is the First Restatement rule for torts?
Apply law of place of injury
What is the Second Restatement rule for torts?
Apply connecting facts;
- Conduct
- Domicile
- Place of incorporation/PPB
- Centred relationship
- Injury
What are the exceptions for the application of law in torts?
Intrafamily tort defence
Charitable immunity
What is the First Restatement rule for contracts?
Apply law of place of execution (for formation issues)
Apply law of place of performance (for performance issues)
What is the choice of law for contracts?
Express choice of law in the contract
- NOT contrary to public policy
- Reasonable basis
- True consent (no fraud/mistake/adhesion)
What is the Second Restatement rule for contracts?
Apply connecting facts;
- Contracting
- Negotiation/Performance
- Location
- Domicile
- Place of incorporation
What is the First/Second Restatement rule for real property transactions?
Apply law of situs (place where property is located)
What is the applicable law for personal property transactions?
Tangible goods + Representative documents
- Situs (at time of transaction)
Intangible goods
- Debtor’s domicile
What is the applicable law for personal property inheritance?
Deceased’s domicile (at time of death)
What is the applicable law for corporations?
Place of incorporation
What is the applicable law for divorces?
Plaintiff’s domicile (forum)
Pre-marital agreement
- State of execution
- State with most significant relationship with parties + transaction
