Talk:Choice of law

Fret not, I intend to edit and expand this page massively over the next week or two. -- 8^D BD2412^gab 00:45, 2005 Apr 28 (UTC)

I am pleased to see that you are proposing to work on this page, because it looks to be exclusively an American page and not at all reflective of the law in other parts of the world. I have quickly written down what I remember of renvoi just to give you a flavour of the problem:

I moved the text to the renvoi page.

David91 19:42, 5 August 2005 (UTC)

• This would be great for the renvoi article! -- BD2412 ^talk 20:27, August 5, 2005 (UTC)

I am due to go into hospital soon but I will try to add more material for you to consider before disappearing. All the best. -David91 07:28, 6 August 2005 (UTC)

Hmmm. Sorry. This is getting too long and I am nowhere near finished (contract is a major area and, even in outline, family law will be substantial). I think we should consider nesting the subject areas on to separate pages and, perhaps, consider creating a separate page for the U.S.? What are your (printable) thoughts? -David91 19:21, 8 August 2005 (UTC)

• I can see moving the U.S. stuff to a separate article. -- BD2412 ^talk 20:56, August 8, 2005 (UTC)

I have created a new page for characterisation (conflict), and moved the relevant material to renvoi. This has reduced the immediate length temporarily. Depending on time remaining, I will flesh out the characterisation and renvoi pages and try to get back here to finish off the subject area rules. All the best. -David91 20:33, 9 August 2005 (UTC)

I have now moved the material on the U.S. to a new page and slightly expanded the generic material. As I grow stronger again, I will continue to add to this material. The U.S. material is entirely outside my expertise (such as it is). David91 18:39, 18 October 2005 (UTC)

How does this work

How can the law of one jurisdiction (call it jurisdiction "A") applied in another jurisdiction (jurisdiction "B") if there are no lawyers licensed to practice in jurisdiction "B" competent in the laws of jurisdiction "A"? --Random832 (contribs) 19:54, 19 August 2008 (UTC)

First, lawyers are expected to familiarize themselves with the relevant law - even within a single jurisdiction, an attorney may come across unfamiliar areas of law and must learn them on the fly. Second, the wise client will retain a lawyer already familiar with the law of jurisdiction "B", and if not, the wise lawyer will at least informally seek advice from an attorney in jurisdiction "B" (most seasoned attorneys know attorneys from a number of jurisdictions). bd2412 T 21:38, 19 August 2008 (UTC)

What BD2412 says is true but I am not sure it completely answers Random 832's question. It sounds like his issue is whether it is legal for an attorney in "B" to practice in "B" in a case where "A's" law may apply - not whether the attorney from "B" is any good at it, or how he gets his information.

The answer is that for the most part it does not matter. A lawyer is licensed to practice in his jurisdiction. A lawyer licensed in "B" ordinarily may practice in "B," a lawyer from "A" ordinarly practices in "A." There would be problems if a lawyer from "A" went to "B" to practice there without also being licensed by "B." (Most jurisdictions have rules regulating this kind of thing). A state B lawyer's ability to practice in "B" is not altered by what jurisdiction's laws provide the rules of decision in the case, regardless of whether he knows them well enough to be licensed in that jurisdiction. There's simply no history in case law or statute for such a limitation.

On the other hand, there is a limit - state law regulating attorney practice does require "competent" practice - you have to represent your client with a miniumum level of competence or you will be committing a tort against your client (malpractice) and breaching legal ethics, for which the state, or its body regulating attorney practice, can discipline you. So if you, in state B, as a licensed lawyer therein, represent a client in a case involving issues from state A, and don't bother to do the things BD2412 mentioned (use your ability as a lawyer to learn the law of A), and just assume that the law is the same, you risk a nasty surprise, and getting in trouble. However, it is presumed that as a lawyer, you know the standards of professional conduct, and you won't make wrong assumptions like that. (It is also possible that even if you do make such a wrong assumption, and no one will ever know, because choice-of-law is so poorly understood).

In other words, as an attorney, your license is good in the issuing jurisdiction no matter what kind of case it is -- but if you don't do a good job, you may lose it. That, however, is true in any kind of case, not just a choice-of-law case.

Another reason why it doesn't really matter that you are licensed in one jurisdiction, but the law of another is applicable, is semantic. Many scholars postulated that no state ever "applies the law" of another state. That is, even in the classic situation where State B says, "now, we apply the law of state A!" it really doesn't. It really applies its own law, but adopts the foreign rule of decision. This seems like a debater's trick. Have I done nothing more than draw a distinction between "law" and "rules of decision?" - a distinction between a whole and a part, perhaps. But there's more to it than that. But I'm not going to get into that right now, because it's late. Non Curat Lex (talk) 08:14, 21 August 2008 (UTC)

I need some help concerning the "A" and "B" references and jurisdiction. Lawyers are licensed by state(U.S.) and a competent attorney so licensed will know the laws of this state. If this lawyer is not familiar with the particulars of a case he(or she) will certainly look them up or cause them to be looked up. Some states do not allow "specializing" and the word can not be used in advertising. If a lawyer takes on a case that has not been before the courts before there will be no expert and the case will be considered a precedence. 63.20.101.181 (talk) 08:24, 25 February 2009 (UTC)

Merger Proposal

Hello all. I have begun to attempt to implement the English IPL rules into several of the conflict of laws pages. Some, Characterisation one in particular, needs a lot of work. I wondered your thoughts on consolidating Characterisation with the conflicts choice of law article. Characterisation, at least in its English use, is a technique used to determine the application of choice of law rules. It is unclear whether it warrants a page entirely on its own seeing as how, English law uses it as a technique to 'characterise' causes of actions - and subsequently apply choice of law rules to those characterised actions. It was pioneered under MacMillan v Bishopsgate (No 3), which, to those unfamiliar, may warrant a read. I am of the opinion that it would be better to be under its own heading within choice of law, alongside a concerted effort to expand the Brussels and Rome Regulation exploration within this article (as it operates a crucial and primary tenant of EU Conflict of laws rules, especially relating to commercial and civil matters. Particularly the Rome Regulations, which are themselves mandatory rules which determine English (and EU more generally) rules of characterisation.

I'd be happy to hear other's thoughts on this matter and am willing to provide further reasoning for my proposal

BNClawyer32 (talk) 11:24, 24 April 2018 (UTC)

References