In the field of private international law, the determination of applicable law plays a crucial role in resolving disputes that involve foreign elements. Applicable law refers to the set of rules and principles that apply to a case, and notably that a court or arbitral tribunal applies to a particular case to decide the rights and obligations of the parties involved. Applicable law refers to a substantive law.
Conflict of laws
Private international law, also known as conflict of laws, addresses situations where a legal issue transcends the borders of a single
jurisdiction
1 – In French: compétence. Refers to the extent of the powers of a court, its ability to adjudicate a dispute. 2 – In French: juridiction. Refers to the territory in which an institution is competent.Jurisdiction
Choice of law
It is generally accepted that the law applicable to an international relationship is the law chosen by the parties. Indeed, parties to a contract or other legal relationship may include a clause specifying which jurisdiction’s laws will govern their agreement.
Conflict rule
In the absence of choice of law, the court or arbitral tribunal must employ a method, known as conflict rule, which is a set of rules to determine the most appropriate law to apply, often considering factors such as the parties’ intent, the location of the relevant operations or events, and public policy considerations.
Public policy limitations
While determining applicable law, courts and legal practitioners must also consider public policy limitations. Even if a certain law is identified as the applicable law, either because the parties chose it or based on the relevant conflict rule, a court may refuse to apply that law (at least parts of that law) to the extent that it violates its own public policy. In addition, the court will apply the imperative rules provided by the laws applicable in the jurisdiction of said court.
European Union
regulations
1 – Regulations are legally binding rules issued by an authority, usually a government or regulatory body, to implement, interpret, or supplement statutes. They provide detailed provisions on how laws should be applied in practice and often have the same enforceability as statutes. Regulations are typically adopted by executive agencies rather than legislatures. Regulations should comply with laws that are higher in the normative hierarchy. In French, “regulations” can be translated as “réglementation” (referring to the general body of rules) or “règlements”(referring to specific regulatory texts). 2 – In the European Union, regulations are a type of binding legislative act that has direct effect in all Member States without the need for national implementation. Unlike directives, which require transposition into national law, EU regulations apply uniformly across the EU as soon as they enter into force. They are used to ensure legal harmonisation in areas such as competition law, consumer protection, data protection, and product standards.Regulations
In the European Union, regulations provide for conflict rules, that determine applicable law, notably for contractual obligations and non-contractual obligations.
Understanding the principles and mechanisms for determining applicable law is essential for legal practitioners and parties involved in international cases to prevent, anticipate or resolve potential conflicts.