In the field of private international law, understanding the concepts of conflict rule and substantive law is crucial for addressing cross-border legal issues. In short, a conflict rule is a method used to determine which substantive rules should be applied to a particular case. For example, a contract is governed by a substantive law providing for the legal regime of contracts, not by a conflict rule.
Conflict rule
A conflict rule, also known as a choice of law rule, is a set of rules used to determine which national laws or international treaty providing substantive rules should apply to a particular dispute or legal matter. It serves as a guideline for courts to ascertain the applicable substantive law when the dispute involves multiple legal systems. The conflict rule is essential in addressing situations where the laws of different States may potentially apply, thereby ensuring predictability and uniformity in the determination of the applicable rules, notably for the prevention or resolution of international disputes.
Conflict rules are provided by the laws of each State, as well as by international treaties and, inside the 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
For example:
- the HAGUE CONVENTION of 15 June 1955 on the law applicable to international sales of goods is an international treaty providing conflict rules,
- the REGULATION (EC) no 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) is an EU
regulation
providing conflict rules.
Regulation
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.
Substantive law
Substantive law refers to the rules that define the rights, duties, and obligations of individuals and entities. This includes laws governing contracts, property, torts, and other aspects of civil and commercial relationships. The substantive law defines the rights and liabilities of the parties involved in an international case, such as an international contract or a cross-border dispute.
The substantive law may be:
- the law of a State (for example French law, notably the French civil code),
- the rules provided by an international treaty (for example the Convention of Vienna on the International Sale of Goods – CISG, 1980),
- the rules proposed by an intergovernmental organisation (for example the UNIDROIT Principles of International Commercial Contracts (2016)),
- or other rules (for example lex mercatoria, or regulations of the European Union).
When addressing conflicts between different substantive laws, courts rely on conflict rules to determine the most appropriate law to apply. Various legal systems have developed methodologies for resolving conflict of laws, such as the application of the law most closely connected to the dispute or the consideration of public policy concerns.
