The Lex Fori: Basic Rule in the Conflict of Laws

Abstract

A. LEx Fo~i: EXCEPTION OR RULE? O NCE a court has taken jurisdiction, it will usually apply its own law, unless the parties' own choice or an important foreign fact, such as a foreign domicile, a foreign situs, or a foreign conduct, appears to require application of another law. Most judges and lawyers will agree with this simple proposition-and yet text books, class notes, the Restatement, and even much language of the courts, would have it otherwise: foreign domicile, foreign situs, foreign conduct and other foreign "contacts" are said a priori to require application of a foreign law, unless the court can be persuaded for special reasons to turn to its own law or to the law chosen by the parties. This blatant discrepancy between the actual doing of the courts and "official" theory in the law of conflict of laws has made an awesome mystery or an object of ridicule of this subject in the eyes of many. The time has come for a stock taking and re-evaluation of accepted techniques in the light of practical needs, history and comparison.

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