The Choice of Law Process
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 217-235 |
CHAPTER
10
THE
CHOICE
OF
LAW
PROCESS
A.
INTRODUCTION
As
explained
in
Chapter
1,
the
second
central
question
private
inter
national
law
seeks
to
answer
is
what
law
the
court
will
use
to
resolve
a
dispute.
Implicit
in
this
question
is
that
the
court
does
not
always
simply
use
its
own
law,
the
law
of
the
forum.
This
may
at
first
seem
surprising,
since
we
are
so
familiar
with
courts
resolving
cases
accord
ing
to
the
law
of
the
forum,
and
indeed
this
is
what
happens
in
the
vast
majority
of
cases.
But
sometimes
the
court
resolves
a
dispute
using
the
law
of
some
other
legal
system.
The
choice
of
law
process
explains
how
the
court
determines
what
legal
system
applies
to
a
particular
dispute.
B.
THE
RATIONALE
FOR
CHOICE
OF
LAW
A
preliminary
question
is
why
a
court
would
be
willing
to
resolve
a
dispute
using
a
foreign
law.
Laws
are
in
essence
highly
territorial
and
so
it
might
seem
problematic
for
a
court
in
Ontario
to
resolve
a
dis
pute
using
German
law
rather
than
Ontario
law.
Some
might
even
con
sider
the
application
of
German
law
to
violate
Ontario
’
s
sovereignty.
Throughout
the
history
of
the
conflict
of
laws,
the
leading
preoccupa
tion
of
its
scholars
has
been
the
issue
of
choice
of
law,
and
over
time
three
leading
theories
emerged
to
attempt
to
explain
why
the
court
would
resolve
a
dispute
using
foreign
law.
217
218
CONFLICT
OF
LAWS
The
first
theory
is
the
theory
of
comity.
It
posits
that
the
courts
of
one
country
apply
the
laws
of
another
country
as
a
courtesy
to
that
country
and
in
the
hope
that
its
courts
will
reciprocate.
In
a
sense,
resolving
all
disputes
using
the
law
of
the
forum
would
be
discourte
ous
or
rude.
1
There
are
significant
flaws
in
this
theory.
The
common
law
cases
rarely
analyze
the
extent
to
which
the
foreign
legal
system
does
or
might
reciprocate,
casting
doubt
on
the
reciprocity
aspect.
In
addition,
courts
have
resolved
disputes
by
applying
the
foreign
law
of
an
unfriendly
or
enemy
country,
for
example
in
times
of
war,
2
casting
doubt
on
the
courtesy
aspect.
In
recent
years
Canadian
appellate
courts
have
placed
considerable
emphasis
on
notions
of
comity.
3
But
it
is
important
to
be
clear
that
in
doing
so
they
are
not
using
comity
in
the
sense
described
above
and
are
not
affirming
the
concept
as
a
theory
which
would
explain
the
use
of
foreign
law
to
resolve
disputes.
4
Rather,
the
courts
are
using
com
ity
in
the
way
it
was
subsequently
defined
in
Hilton
v
Guyot,
in
which
the
United
States
Supreme
Court
stated
“
[c]omity,
in
the
legal
sense,
is
neither
a
matter
of
absolute
obligation,
on
the
one
hand,
nor
of
mere
courtesy
and
good
will,
upon
the
other.
”
5
The
second
theory
is
the
theory
of
vested
rights.
It
asserts
that
a
person,
by
acting
in
a
particular
country,
acquires
rights
under
the
law
of
that
country.
These
rights
must
then
be
treated
as
having
vested
in
the
person
so
that
all
other
countries
must
give
effect
to
them.
Univer
sal
application
of
the
law
of
the
forum
would
deny
these
vested
rights.
6
The
vested
rights
theory
was
widely
adopted
by
common
law
courts
in
1
Leading
advocates
of
this
theory
are
Ulrich
Huber,
“
Of
the
Conflict
of
Diverse
Laws
in
Diverse
Governments
(de
Conflictu
Legum)
(1689)
”
in
Ernest
G
Loren
zen,
Selected
Articles
on
the
Conflict
of
Laws
(New
Haven,
CT:
Yale
University
Press,
1947)
at
164;
and
Melville
M
Bigelow,
Story's
Commentaries
on
the
Conflict
of
Laws,
8th
ed
(Boston:
Little,
Brown,
1883)
at
33-34.
2
Otto
Kahn-Freund,
“
General
Problems
of
Private
International
Law
”
(1974)
143
Recueil
des
Cours
139
at
464.
See
also
Perry
Dane,
“
Vested
Rights,
‘
Vestedness,
’
and
Choice
of
Law
”
(1987)
96
Yale
Law
Journal
1191
at
1213-214.
3
As
a
leading
example,
see
Morguard
Investments
Ltd
v
De
Savoye,
at
1095-96.
4
In
Davies
v
Collins,
at
para
33,
the
court
noted
that
“
The
Supreme
Court
’
s
resurrection
of
comity
has
not
escaped
criticism
which
argues
the
difficulty,
if
not
irrelevance
of
applying
‘
comity
’
to
choice
of
law
questions
in
a
private
setting.
”
See
Peter
Kincaid,
“
Jensen
v.
Tolofsen
and
the
Revolution
in
Tort
Choice
of
Law
”
(1995)
74
Canadian
Bar
Review
537
at
541-45.
5
159
US
113
at
163-64
(1875).
6
Albert
Venn
Dicey,
A
Digest
of
the
Law
of
England
with
Reference
to
the
Conflict
of
Laws
(London:
Stevens
&
Sons,
1896)
at
22;
Joseph
Beale,
A
Selection
of
Cases
on
the
Conflict
of
Laws,
vol
3
(Cambridge:
Harvard
University
Press,
1902)
at
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