Conflict of Laws

Generally a legal claim with an international element is connected in such a way with two or more different States that it becomes necessary to decide which law is governing the dispute. Only the law of one particular State can be applicable. The dispute has to be settled in accordance with the national law of that State. In addition to the rules for international jurisdiction, each State has its own rules of private international law revealing which law is applicable in the event of such a conflict of laws.

Where the court of a State, according to rules of private international law, has jurisdiction, it is allowed to give a binding judgment on the legal claim. Usually this claim has to be judged in line with the national law of that same State. So the court with jurisdiction has to decide the matter on the basis of the national (internal) civil law with which it is familiar.

But that’s not always the case. It’s possible that the rules of private international law on jurisdiction, such as the Brussels I and II Regulation, indicate that the court of a specific State is authorised to give a judgment on a certain claim, whereas the rules of private international law on applicable law, such as the Rome I and II Regulation, point out that the claim itself has to be settled in accordance with the national law of another State. This could mean, for example, that a court of the Netherlands, which is actually considering the case, has to apply the national law of Germany or Indonesia in its proceedings and give a judgment that is consistent with German or Indonesian civil law.

Of course this produces problems and setbacks, because the judging court has to be advised by impartial lawyers from another country with regard to the question how the national law of that country should be applied and interpreted in this case. That’s why, if possible, the lawsuit should be laid before the court of the country which national law applies to the filed case. Evidently, the most effective way to handle an international legal claim is to file the lawsuit at the court of a country with jurisdiction, whose national law will govern the case and where the judgment will be enforced directly or who is a Contracting Party to a Convention or European Regulation with the country where the judgment, if need be, finally can or has to be enforced.