Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Are We All Just Wasting Time?

Posted by Seva on March 12, 2008

This morning, I woke up to a very interesting comment left by professor John Swan, counsel with the Toronto firm of Aird & Berlis LLP and an adjunct professor at Osgoode Hall Law School.

Since the existence of the doctrine of renvoi is (i) necessarily entailed by the struc-ture of conflicts analysis and (ii) logically insoluble, one has to consider the pos-sibility that the entire structure of conflicts is founded on a fundamental misap-prehension of what is required to deal with cases of geographically complex facts, i.e., all cases that would be regarded as coming within the rubric of “Conflicts”.

After teaching the subject for over 25 years, I have come firmly to the conclusion that it simply should not exist but should instead disappear (i) with respect to issues of jurisdiction and the recognition and enforcement of foreign judgments into questions of constitutional law within Canada and international law outside it, and (ii) with respect to all issues of contracts, torts, etc., into simple issues of those areas. See Swan, “The Canadian Constitution, Federalism and the Conflict of Laws” (1985), 63 Canadian Bar Review 272, “Choice of Law in Contracts” (1991), 19 Canadian Business Law Journal 213, and “Federalism and the Conflict of Laws: The Curious Position of the Supreme Court of Canada” (1995), 46 University of South Carolina Law Review 923.

I admit that this is a perspective that I have not been exposed to before, not in the curriculum of the conflict of laws course that I took or my conversations with professors or practitioners. However, the idea is intriguing to me. Is the whole area of conflict of laws merely a byproduct of some overzelous lawyers or judges who had to create a whole new area of law instead of realizing that the questions they faced could be resolved within the existing frameworks, or is it that the discrete nature of this area of law has outlived its usefulness? In other words, in the days of pragmatic and functional approach to law, rather than the strict formal approached espoused in the 19th century, is our current legal system sufficiently flexible to absorb conflicts into existing legal dogmas?

Even more importantly (in my mind), I have the following two questions about Prof. Swan’s conclusions:

(1) Is renvoi really logically insoluble, or is its perceived insolubility (presumably referring to full renvoi) merely an artefact of diverging ideas as to what international law is or should be, particularly between civil and common law systems. After all, full renvoi is impossible between common law jurisdictions which all employ similar if not identical conflict of laws rules. In this case, is the delegation of enforcement of foreign judgments and questions of jurisdiction to international law really a solution, or is merely a substitution of terms, relegating questions fundamental to the flow of international commerce to legal principles that are not only uncertain, but which are outside of the forum’s legislative or juridical control. In other words, are we getting even less certainty and even more complexity?

(2) Can conflict of law issues in substantive areas of law (such as contracts, torts, etc.) really be merged into “simple issues of those areas”. For example, while the concept of “proper law” of a contract is derived from conflict of laws principles, its application is really an exercise of contractual interpretation. Does this merger affect the validity of this concept or make it any simpler?

Not having practiced in this area, I do not pretend to know or even suspect the answer to these questions. But I do hope that some readers may have an opinion on this that they would like to share. Meanwhile, I am off to read Professor Swan’s articles that he has so kindly referenced in his comment.

One Response to “Are We All Just Wasting Time?”

  1. John Swan said

    I would be delighted to debate these fundamental issue at any time and, in particular, I would like to have your opinion of the papers that I referred you to; there are many more that I could add to the list.

    To return briefly to the question of renvoi: the particular feature of traditional conflicts analysis which creates the possibility of renvoi is that choice of law rules are “jurisdiction-selecting”, i.e., they point to a jurisdiction to “govern” the contract, the tort, questions of title to immovable property, succession, etc. If, in applying, say, the torts rule established in Tolefson v. Jensen, you are to look to the lex loci delicti and it is, say, New York, then logically you have to ask, “What is New York law or what would a New York court do with this dispute?” If the evidence of New York law would indicate that a court of that jurisdiction would say, “This is a dispute between two residents of Canada and has no connection with New York sufficient to justify the application of New York law to the question whether benefits available under the Ontario Family Law Act are or are not available to the plaintiff in this State; that is a question for Ontario courts since the most important fact for New York is not where the accident happened but, at least with respect to a single vehicle accident, the place of the parties’ residence.”

    What do we do now? Do we ignore what the Supreme Court appeared to say in Tolefson v. Jensen or do we say (on some basis we can neither articulate nor defend) that we’ll simply pick and choose from the offerings of New York law and say, “We don’t think that we want to look at what a New York court would say about the application of New York law to these facts; we’ll just apply some more limited conception of New York law.”

    Until we get away from jurisdiction-selecting rules, renvoi (or transmission, i.e., a reference to a third jurisdiction) is logically entailed and, as perhaps, I have shown, is only be “solved” by an unprincipled decision to look at some version of New York law that is not, in fact, the actual law of New York.

    The possibility of renvoi may not be patent if the foreign jurisdiction, like all the provinces of Canada, adopts the same choice of law rule like that in Tolefson v. Jensen (because the Supreme Court so laid it down) but that fact is just a coincidence or accident and does not touch on the inevitable possibility of renvoi in the general case. We may, of course, make an ad hoc exception to it and say that it does not, for example, apply in contracts, but that is not a principled position; it is regarded as simply pragmatic.

    If we could ask in an Ontario court, not what law governs the tort but at the much more important question, viz., given that the parties are both Ontario residents and that the accident happened in New York, is there any reason why we would not deal with one party’s right to the benefits of the Family Law Act under Ontario law rather than New York law? There may be reasons not to apply the Ontario act because the accident happened in New York, but those reasons have to be based on the fact that there is, for example, a New York defendant who might be caught by unpleasant surprise by being held to the consequences of the application of Ontario law. See e.g., Grimes v. Cloutier (1989), 69 O.R. (2d) 64, 61 D.L.R. (4th) 505 (C.A.) and comment, Swan, Case Comment, “Conflict of Laws—Torts—Automobile Accident in Quebec—Action in Ontario—’Paradigm Shift or Pandora’s Box”‘?—Grimes v. Cloutier; Prefontaine v. Frizzle” (1990), 69 Canadian Bar Review 538.

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