ABSTRACT
Assuming that a legal system, faced with a case which it recognises has contacts with laws other than its own, is prepared to accommodate the foreign aspects of the case, how can it proceed? It has to find some way to link the facts to the foreign legal system but there are only a limited number of connections which can be made. The choice of law process involves the attribution of significance to the foreign contacts – turning factual contacts into legally relevant ones. This is done by choice of law rules, which embody factual connections; for example, the law of the place where the marriage was celebrated – the lex loci celebrationis – governs the formal validity of a marriage. We will examine some of the connections later but they only provide the means of choice, they cannot determine that choice directly; for example, if a Frenchman buys goods from an Englishman in England for delivery on the spot, there is little, if any, obvious significance in the French connection; whereas, if the Frenchman marries an Englishwoman in England, the potential significance of the French contract appears much greater. Why should this be so? The connections are in each case the same, so the difference between their apparent significance must depend on the nature of the transactions to which they relate. To decide what weight to accord to a particular connection depends, then, on two elements: the issue which is raised and the connection which is offered. Suppose the French buyer, dissatisfied with the goods, claims that the seller was in breach of contract by French law. One might rule out the objection on the grounds that the contract was made in England or that the controlling law must be English, as it would be impossible for the English seller to know about the personal laws of his casual customers and intolerable that identical contracts should be valid or not, or performed or not, according to diverse legal systems which could not be known in advance and which would produce different results. Could the same be said if the contract in England took place between two Frenchmen?
