Conflict Laws

Till this moment, the Ethiopian legal system has been working without rules of conflicts. There is no law to guide judges to the effect. Ethiopian courts have been in trouble if they were confronted with a case containing a foreign element for they could not avail themselves of any provision of law. It was not, however, because there was no any effort to have same. A number of attempts have been made to draft the Private International law rules.

The first attempt to codify conflicts law was made during the time a civil code was drafted for Ethiopia. However, the Civil Code, promulgated in 1960, was at the end of the day, without a section relating to the conflicts law. The then Codification Commission, it is said, have rejected the section prepared for the discipline. Prof. Renè David, the drafter of the Civil Code, has expressed his regret for the reason that "the matter of conflict of laws, which was included in the preparatory plan has, for different reasons, been excluded from the Civil Code. Although Renè David seemed to have known the reasons, as his statement tends to imply, he did not mention one for the rejection. (Document annexed)

Still another attempt to draft and proclaim a private international law was made in July 1976 E.C. The Short-Term Law Revision Committee of the then Ministry of Law and Justice had prepared a document on a draft along with its commentary of private international law. (Document annexed)

The document provides that the Committee on the preparation of draft of private international law has referred to the Rene' David's unsuccessful draft, R.A. Sedler's personal draft (by the way R.A Sedler, has "attempted to propose" a code of the conflict of laws draft), and mainly the draft prepared by the (Imperial Regimes') Ministry of Justice, as the committee thinks. Furthermore, the committee had consulted other countries' private international laws such as those of France and Poland and had considered the then contemporary situation of the country ­__ Ethiopia.

What could be the reason for non-promulgation? Could it be due to the reason that the then parliament turned down such a proposal? The writers could not get any recorded document telling to the effect. Anyway, whatever the reason may be, the draft was not, again, put into effect.

However, it is a general norm or practice that any court is not expected to reject a case for lack of law to resolve same. It is the responsibility of any court (of course, with established jurisdiction) to dispense justice.  To refuse to entertain a case for lack of law, inter alia, while one has the power to entertain the case is to deny justice __ unfair! At any rate, a judge is required to resolve any issue of a certain case brought before him.

As member of the international community and considering Ethiopian citizens are making transactions and other connections with foreigners, problems of conflict of laws do inevitably arise. What, then, was the mechanism being employed by Ethiopian courts in resolving cases containing an extra-state element without a corresponding law to the dispute? What was the practice? On what grounds did they claim judicial jurisdiction? What standards or criteria were utilized for the choice of law problems?

We have said above that Ethiopia does not have defined rules of private international law. Nor does it have a well developed precedent to enable courts assume judicial jurisdiction. Despite this fact, whenever Ethiopian courts were confronted with a case containing a foreign element, they, in practice, have been resorting to different methods for the purpose of determination of whether they have power of adjudication of a certain case. We will discuss them later. For now let us assess our Codes if they, by a dint of chance, have something to say about judicial jurisdiction.

There are some insufficient provisions of judicial jurisdiction scattered in different codes designed for specific purposes. These provisions are Arts. 208 and 237 of the Maritime Code that lay rules of judicial jurisdiction in respect of carriage of goods and for action of damages incidental to collision, respectively. Moreover, Art. 647 of the Commercial Code captioned "Jurisdiction" concerning contracts of exclusively internal carrier by air. All these provisions employ domicile to establish jurisdiction.

In addition to the abovementioned provisions, it was claimed that the Civil Code provisions of domicile (i.e., Arts. 183-191) were destined to serve private international law. Jacquious Vanderlinden, in his Commentary on the [Ethiopian] Law of Physical Persons, in confirmation to this argument amplified saying "domicile is indeed reserved for private international law because nowhere in the [Ethiopian] Codes it is (but residence) used for purely internal disputes."

In other words, since no effect of domicile seems to exist anywhere in the Ethiopian civil law, but residence alone is taken into consideration; the inclusion of the concept of domicile in the civil code "seems to be that a definition of domicile was necessary in Ethiopian civil law, given the demands of international private (or conflicts) transactions."

As mentioned above the draft of the 1960 Civil Code included a title on private international law although that part was omitted for unknown reasons when the code was promulgated. Jacques Vanderlinden argues that while the title on conflicts was omitted in the promulgated text; the provisions on domicile, "which can be fully understood only with reference to that omitted title" were forgotten.

However, in sofar as the judicial practice is concerned, it is generalized that Ethiopian courts seem to have adopted three different approaches to solve the issue of judicial jurisdiction. They are: silence regarding judicial jurisdiction, recourse to the Civil Procedure Code, and recourse to general jurisprudence. Corpus of decided cases is cited as an authority to buttress the argument.

In this connection, although still, there are no rules to guide, it is to be mentioned that matters of private international law and enforcement of foreign judgments are entrusted to the first instance jurisdiction of the Federal High Court. (Art. 11 (2) (a) and (c) of Proc. No. 25/1996). Incidentally, the power of deciding on the application for the enforcement of foreign judgments and arbitral awards was entrusted, before the present federal arrangement was introduced, to the then High Court pursuant to Art. 15 (3) of the Civil Procedure Code.

Regarding the choice of law problems, as there is no statute to the effect, looking to practice of courts as to the "approaches" employed, is the only alternative. One can observe from the decided cases of Ethiopian courts that about four "approaches", (if after all some of them are to be considered as approaches) were practiced; viz. general jurisprudence, precedent, ignoring the foreign element and simply applying the lex fori, and looking towards the spatial conditioning of the internal rules.

The following examples most of which are substantially family cases are of help to support the above statements.

1. In the Verginella V. Antoniani Case, the only case to which foreign law is applied and a foreign expert, Dr. Vitarelli, is called; a certain Italian Benedetto Verginella who has lived for 23 years and domiciled in Ethiopian petitioned for judicial separation from his Italian wife, Antoniani (who was then in Italy) on the ground of desertion. Although the petitioner prayed his case to be adjudged according to the law of Ethiopia; the court, first questioning on which law to be applied and reasoning that the institution of judicial separation is not known to the Ethiopian legal system, ruled that the principles of Italian law on matters of same should apply based on the  following grounds.

a)     the petitioner is an Italian subject; b) the respondent is also an Italian subject; c) the marriage between the petitioner and the respondent was celebrated according to Italian law; d) there is no provision in the Ethiopian law governing judicial separation, and e) it has been the practice of the courts of Ethiopia to apply principles of foreign law in matters between foreigners where Ethiopian law makes no provision on such matters.


2. The case in the matters of Giuseppe Calderone asked whether the rights of succession are to be governed by the law of domicile of the deceased or by the law of nationality. It cited cases of the Supreme Imperial Court which decided in favor of the law of domicile and using them as a precedent decided that the law of domicile was more adequate to govern jurisdictional situations and relationships giving rise to by a person who has established his domicile in a particular country without giving up his original nationality. By the way, Ethiopian courts were not consistent in applying the governing personal law of the cases brought before them. For example, while two High Court decisions have held that nationality was the governing personal law, two other Supreme Imperial Court decisions have tilted towards domicile. (Sedler, Conflict of Laws in Ethiopia, pp. 41-43)

a) In Zevi V. Zevi, although the couple concluded marriage solemnizing in the Catholic Church of Addis Ababa and lived in Ethiopia for many years, they were Italians holding Foreigners' Identity cards as Foreign Residents in Ethiopia. When the wife petitioned for divorce, the minority of the Family Arbitrators, which the Supreme Imperial court, as appealed to, agreed with, disregarded the foreign element of the case or question of nationality (both being foreigners) and just simply declare divorce based on the "sufficiently reasonable grounds according to the Ethiopian Civil Code." The following case has got similar effect.

b)       In the marriage case Zeyleka Gonji V. Rolbero Joseph, although the husband argued that he is Saudi Arabian (foreigner) and knows nothing about the Ethiopian law and both (he and his Ethiopian wife) were Muslims; the court refused to apply that law but simply referred the case to family arbitrators to be decided according to the Ethiopian law.

The Peter Case is an example of determination of the spatial conditioning of the internal law. In this case, the couple (Ethiopian wife and British husband) concluded a religions marriage in the Anglical Church in UAE. The court framed an issue "whether the Ethiopian Law could be applied to a religious marriage case or not". For this case is a multistate one, the very framing of the issue was not correct. What if the answer was "no"? It would result in another issue __ what other law, then, would apply? The issue should have been framed like this: "Which law should apply?"

To make the discussion on the Ethiopian Private International Law full, the Ethiopian Civil Procedure Code has taken up the responsibility of dealing with the third major ingredient of the discipline __ enforcement of foreign judgments though partially. (Note that the "recognition part is not dealt with for unknown reasons). But for the enforcement part, Ethiopian courts were employing the provisions of the Code. What is more, at this time there is a move towards drafting a Federal Conflicts Rules by the Ministry of Justice. In fact Mekelle University Law Faculty was also involved in drafting this law.

The drafting work is being done at the right time as, besides the international conflicts which have existed till now, the federal structure of the present Ethiopia has come up with other problems __ interstate conflicts problems. It is to be noted that the constituents of the FDRE are empowered to enact some areas of laws, (for example, family law) which inevitably will come up with some differences that call for the application of choice of law rules to avoid forum shopping due to their differences.

For the past has yielded an astonishingly rich accumulation of ideas, which still guide the present theory and practice, glimpse to that is very important. There was an early working out of necessary principles of international coexistence and intercourse, primarily on the commercial place. In effect, lending a time to its discussion is, the writers think, worthy.

When was the technique of conflicts invented? Next, a chronology of relevant conflicts development follows.

Since centuries one can learn from conflicts literature that devising theories and approaches of conflicts trying to address problems that inevitably arise because of the laws' differences have been evolving. The focus was mainly on choice of law problem-solving and little attention was given to problems of jurisdiction and recognition and enforcement of foreign judgments.

  • The Origin


Generally, in the ancient world, the treatment of foreigners was different from those of citizens. Outstanding instances of this type mentioned by Prof. Yntema, in addition to arbitration of international disputes, are: special courts for cases involving foreigners in the Greece cities of the Hellenistic period and the praetor peregrinus (judge for foreigners) in the Roman Republic after the archaic recuperates __ a board consisting three or five members, originally only for processes between Romans and peregrine (foreigners), but subsequently for cases in general which required a speedy decision, esp. in suits concerning property and de statu. Instead of the jus civile, the "general principles of law common to all nations” was applied. In a related history, contracts between Greeks and Egyptians, if concluded in Greek form, was to be tried before the Greek courts; if in Egyptian form, before the native courts in accordance with the law of the country. However, these situations can hardly enable us to conclude that there was a choice of law process at that time. Rather the focus seemed on jurisdiction though the jurisdiction's local law was thereby immediately applied.

Showing the influence of this history in later stages, it was said in a summarized manner that the Roman conception of a universal corpus juris pushed the problem into the background though it came to the fore again with the resurgence of commerce in the autonomous Italian city states of the Middle Age, and it took a vigorous new turn in the 17th century the Netherlands "envisioned by the jealous separatism of seven individualistic provinces.”

  • · The Statutory Intent

In Northern Italy and Southern France, the then scholars in the 11th - 13th C preferred to tackle the problem of choice of law in a conceptualist rather than a teleological fashion, in the sense that instead of looking for substantive solutions, they theorize about the spatial reach of local laws.

It is generally agreed that the conflicts of laws as we know today is claimed to have begun emerging in the early part of the 13th century in Italy when the local rules statuta, which differ from city to city and when the need arose to make choices in their application as a transaction or relationship bore a connection to more than one locality. Scholars began to discuss whether local statuta could be applied extra-territorially to citizens abroad, and whether foreign citizens within the forum's territory were bound by its laws. In other words, the statutists attempting to determine which law governs transactions involving residents of other city-states classified the laws in a more formalistic way as "real" and "personal". Real statutes in the main concerned (real) property and were territorial in application; personal statutes concerned such questions as capacity, followed the person and thus had extraterritorial effect.

Despite its immeasurable achievement in progress in that it gained wide acceptance, the theory has suffered a great problem in its application. The results of scholars’ attempts to find a basis for distinguishing between personal and territorial (or "real") statutes were disappointing. Its simplicity was belied by the difficulties experienced through out its history in allocating any particular legal transaction to its proper statute.

How can one differentiate whether one statute is real or personal? The great Bartolus took the position that the wording of the "statute" may determine its reach. He employed a very superficial test. To explain more, he tried to make a distinction on the basis of the grammatical construction of the statute and based on that he classified the same as real if the thing is mentioned first and as personal if persons occupy the first place. The famous example is: if a law provides that "the possession of deceased person shall pass to the first born," the lex rei sitae would apply. But, if it were to read "the first born shall succeed," there might be difference in their consequence for the statute would then be personal rather than real.

The spatial reach of a statute cannot be told by its wording. After all, the wording of a law statute does not necessarily reflect the policy of same.

Although the criteria propounded by his successors, the statutists, were no better; the latter writers mocked Bartolus' reliance on the mere "shell of words". Similarly, d'Argentrè severely criticized his verbal distinction via his sarcastic statement that "children would blush if they were to think or say such things".

In this connection, the French statutists distinguished statutes mainly between "substance" and "procedure" and focused on the power to create rights and obligations, i.e. legislative jurisdiction, which was said not to exist locally in the case of a foreign citizen.

Before proceeding to other discussions, let us wind up with the Italians work. As Frederick Juenger has put it rightly, the flourishing trade and commerce of upper Italy also promoted the development of a law of merchant - lex mercatoria. The lex mercatoria, which Mait-land called the "private international law of the middle ages," offered supranational solutions to what have since become choice of law problems.

  • · The Party Autonomy

During the 16th century, the most important development in the statutory doctrine was introduced by the great French jurist Du Moulin just in a modified manner. Without rejecting the Italian division into statutes as real and personal, he rendered a distinct contribution to the discipline by strongly emphasizing on party autonomy.

By distinguishing three principal categories in the subject matter to which statutes may apply; the mere procedure and form of acts, questions affecting the merit that are dependent upon the will of the parties, and substantive questions not dependent on the will of the parties; he declared the intent of the contracting parties, express or tacit, to be a source of law that in its sphere of application transcends the mere authority of a statute as such, limited to its territory.

In other words, Juenger noting that Du Moulin did not invent the idea that those who enter into an agreement may stipulate the law that governs their bargain; emphasized his (Du Moulin’s) adding a new imprudent to the discipline by stretching the principle of party autonomy to encompass situations in which the parties had failed to designate the applicable law. By the way, unlike d'Argentrè, Du Moulin favoured the extension of the personal statute to a wider range of legal relations. This is further explained below.

In the same century, for the simple but broad scheme of classification of Italian statautists as real and personal failed to satisfy the intricacies or realities of life, law, and scholarship; the French Judge and Scholar d'Argentrè identified a third class of statutes - "mixed statutes". He identified such to solve "mixed" questions, which require rules, when relationships had contact with different communities even from the beginning (for instance, when a contract was concluded between citizens of different city-states).    

Preference was being given to the "real" element in the application of "conflicting" mixed statutes. D'Argentrè’s emphasis of the predominance of real statues, reflecting his strong Breton feudal tradition in resisting personal statute extension, favored territorialism. This shows us that statutist theory, envisaging "international" and "universalistic" system, accepted implicitly the premise that one unit, among the territorial governmental units, has the power to legislate with extraterritorial effect subject only to another's ability to block that effect through adoption of an overriding real statute. The major shortcoming of the universalistic system was its failure to explain why one should import the other's law.

Professor David Cavers observed the statute theory's trouble that neither judges nor scholars could agree upon which statute was personal, which was real, and what should be done with those were mixed. Especially, the introduction of the last – mixed statutes- is interesting. Let alone filling any gap it made things worse by complicating matters further. Moreover, when the laws of two states are relevant in the same case, one of them may classify a given issue as personal while the other as real.

  • · The Location of Legal Relation

The death-blow to the surviving schools of statutists appears to have been dealt by Wächter, a German jurist writing in the 1840's. In a lengthy essay, he criticized the uncertainty inherent in the classification of statuta and, more importantly, denied that a state's legislative jurisdiction within its own territory could raise an obligation in another state to recognize such legislation extraterritorially.

The criticisms of Wächter were followed by his contemporary in mid-century by the work of the great German Romanist, Karl von Savigny, who achieved the important shift of focus from classification of rules to ‘consideration of legal relationships’. As Cavers put it, Savigny did not seek for solutions to choice-of-law problems in the classification of local statutes rather he sought to find a proper seat for each legal relationship in its connection with a given state whose law would thereby be rendered applicable, whatever its terms.

Savigny devised such a mechanism hoping that wide spread international agreement might be achieved as to the localization of these relationships. The idea of universal principles of conflicts law, a reflection of the universal idea of reason reached its highest point in his time. However, for Savigny's daring premise __ existence of universally accepted conflicts rules and categories of legal systems __ is unattainable due to various reasons. The view is at present subject to modifications.

  • · The Vested-rights

The vested-rights theory was propounded by A.V Dicey in England and by J.H Beale, the reporter of the American Law Institute's First Restatement of the Conflict of Laws, in the U.S. Their formulation was essentially similar. While the former formulated that any right which has been duly acquired under the law of any civilized country is recognized and, in general, enforced by the forum courts, and no right which has not been duly acquired is enforced or, in general, recognized by the forum courts; Beale's formulation runs like this": a right having been created by the appropriate law, the recognition of its existence should follow everywhere, and thus it logically follows that an act valid where done cannot be called in question anywhere. This is not, however, without flaw.

W.W. Cook along with his "Local Law theory" __ which denies that the forum accords extraterritorial effect to a foreign created right but grants a local remedy which approximates the result which would have obtained under the foreign law __ reacted against Beale, at least in its underlying premises and orientation. The shortcoming of the doctrine is that it does not put a proviso to the effect that certain values of the forum might not be sacrificed while recognizing a foreign acquired right.

  • The Transition: “Modern" Developments of Choice of Law Theories

Lex fori approach and governmental-interest or simply ‘interest analysis’ theory, which both reflect attitudes similar to those of the European statutists of the 14th-16th, resulting from the dissatisfaction with the fixed and thus mechanical (but predictable and certain) rules are recorded in American conflicts law as marking a "revolution". The former, the lex fori, theory is of A.A Ehrenzweig’s and that of the latter is B. Currie's.  Both regarded as neo-statutists for returning to an essentially locally-oriented approach which the European development since Savigny had largely overcome. Besides these, von Mehren and Trautman, in part, proceed from a classification and evaluation of forum and foreign law qua law. Both theories resemble in practical results. Let us see them one by one.

  • · Lex fori and Governmental-interest Approaches

The Lex fori (law of the forum or local law) theory contends that the basic law is the law of the forum and that foreign law should be used only to fill "gaps" in that law. This theory does not deny the application of foreign law in "appropriate" cases. In other words, to soften the strict application of the lex fori, some specific conflict rules have been developed as an exception. Foreign law is to be employed only where the defendant would be dealt with unfairly by the application of the lex fori or where the superior governmental interest of another state requires the displacement of the lex fori. In both cases, however, forum's public policy is to be maintained at any rate.

A central theme in Ehrenzweig's approach is the oft-stated contention that traditional conflicts theory erroneously presupposes the existence of a "super law" which predetermines, through direction or restraint, applicable choice of law rules. His problem lied in insisting on government policy analysis, so far as determining whether the substantive rules of the forum are to be "displaced" in addition to formulating new choice of law rules __ if non-existent.

On the view that every state has a governmental interest in effecting the policies underlying its own law having some connection with the transaction, Currie's extreme position (accepting the lex fori principle) was: "we would be better off without choice of law rules. Normally, even in cases involving foreign elements, the court should be expected as a matter of course to apply the rules of decision found in the law of the forum". Upon consideration of policy and fairness in determination of the matter, despite the position that the forum must enforce its own interest and apply its law where there is a conflict between the government interest of the forum and that of another state; the law of the forum could be displaced if where another state is shown to have a government interest superior to that of the forum which in this case the law of that state will be used as a model for the rule of decision in the particular case.

It is during the inquiry of the policies expressed in the respective laws that one encounters concepts of "true" and "false" conflicts. Maintaining that there is no conflict upon an examination of government interests (for it is only one state that will have any interest in having its law applied) Currie has come up with the mentioned analytical concepts and another "disinterested" position principle.

While a "false conflict" exists when the potentially applicable laws do not differ or when, upon examination, one law __ by its own terms or underlying policies __ is not intended to apply to a situation such as the one in issue; a "true conflict" appears when the relevant laws not only differ, but the underlying policies of each call for its application. In the latter case, the court considers whether a more moderate or restrained interpretation of the policy or interest of one state may avoid the conflict and it is in the case of an unavoidable conflict that the forum's law that is believed to advance governmental-interest is to be applied.

Scoles and Hay noted that for the actual resolution of cases, the distinction between "false" and "true" conflicts is irrelevant for Currie's analysis will always regardless of whether the case involves "false" or "true" conflict, lead to application of forum law except in those cases in which the policy of the forum does not call for the application of its law, that is where it is "disinterested" in which case (a very rare occurrence) the conflict could be avoided either through the doctrine of dismissal of the local suit __ or, still, by application of local law at least if the latter corresponded with the law of one of the interested states.  Hence, "All Roads Lead Homeward".

  • · Functional Analysis (Policy Weighing Approach)

By broadening Currie's analysis and approach, many American writers, such as von Mehren and Trautman, share his forum concern to solve true conflicts problems. What is different here is that unlike Currie, they employ a principled weighing of conflicting policies to resolve a problem in case self conflicts analysis or determination of concerned jurisdiction fails. The following are some:

- The choice of the state's law whose polices are most strongly held;

- The choice of the law reflecting an "emerging" policy over one embodying a   "regressive" policy;

- The choice of a law expressing the more specific rather than general policy;

- Selection of the rule best designed to effectuate an underlying policy; and

-Avoidance of a choice which would frustrate an underlying policy.

But, what if the method of policy weighing fails to solve the problem? The formation of multi-jurisdictional rules as a solution was urged. Here, the analysis seems to take on a slight local-law orientation, in the sense that the formulation of universally-applicable choice of rules, not based on interest analysis, is seen as exceptional, and when the exception does not obtain, the court is said to be justified, which logic indeed requires, in giving up and applying its own law.

Despite coming with additional of more articulated criteria for choice and being concrete in identifying the relevant criteria, Weintraub's weighing approach may not lead, in practice, to results that differ from the above mentioned four scholars' approaches.

The Value-Oriented Approaches

The quest for a better alternative to the ‘rigid’ traditional choice of law rules has continued. As will be seen below, some scholars are known for their essentially common character approaches in trying to identify “goals and objectives" that help courts in devising new rules. Such methods, however, are criticized as "result-selective" which are contrary to the intended objectives of traditional conflicts law (decisional harmony or uniformity of result, predictability, and certainty).

Prof. David Cavers suggested the consideration of the following "principles of preference" in case of resolution of conflicts problem with the object that "the choice ... would not be the result of the automatic operation of a rule or principles of selection but of a search for a just decision in the principal case. The principles are:

- Close analysis of the facts of the case;

- Comparison of the "preferred rules of law" with "the rule of the forum (or other competing jurisdiction's) with respect to the results they would entail; and

- Appraisal of the result "from the stand point of justice between the 'litigants' or ... broader considerations of social policy."  

In similar fashion to Caver's "look-before-you-leap " type approach, R.A. Leflar offered a list of general "five-choice-influencing considerations", viz. 1) predictability of results; 2) maintenance of inter-state and international order; 3) simplification of the judicial task; 4) advancement of the forum’s governmental interest; and, 5) the application of the better rule of law.

Although he failed to put the criteria in hierarchy or order of priority, Leflar advised courts to replace the "mechanical rules" (traditional method) and "circuitously devised approach" which have appeared as cover-ups for the real reason that underlay the decisions with "statements of real reason". One can observe that some of the criteria lie opposite to each other. For example, while simplification of the judicial task promotes societal interests, the "better law" suggestion, which has become the focal point of the criticisms of his approach, in contrast tilted towards results keyed of the given case.

In summation of this approach, it is commented that while Leflar's is largely undifferentiated and open-ended, Cavers' is mindful both of the need for certainty provided by rules and the need for an adjustment mechanism.

The Second Restatement of Conflict of law (American's) reported by Prof. W. Reese, containing three main elements __ general policy consideration, the concept of the "most significant relationship", and lists of particularized connecting factors __ attempting to provide as much of the "right line between excess of rigidity (the Bealian dogma) ... and excess of flexibility", which most approaches and analyses since the First Restatement were trying to attain besides seeking a formula for the application of foreign law in appropriate cases is worth mentioning here.

In choosing the applicable law, the general policy consideration section of the Restatement Second provides set of factors which lack, like Leflar's list of choice influencing-considerations, "order of priority" and with a possibility of rules pointing to different directions in a given case __ that the court considers in the absence of a statutory directive of the forum, which the court is required, first and foremost, to follow to the extent that it is constitutional.

It is to be appreciated of the conflicts scholars' intellects that have contributed to the prolific literature devoted to solve the problems of the discipline; what is the ultimate solution found at present? Unfortunately enough, today there exists extreme disagreement among both judges and commentators not simply over the details of choice of law policy but even over the most fundamental principles of the subject. These, esp. the latter, allegations are opposed by others who assert that the subject now enjoys the status of a "normal science" in which scholarly consensus on the fundamentals prevails.

Two names, neither of which are fully descriptive nor wholly accurate and precise but could be interchangeably used to designate the subject, are in common use viz. Private International Law and Conflict of Laws (also shortened Conflicts rules).

The term private international law might connote that the subject somehow in the context of private disputes, partakes the affairs of the general law of nations. As to the other term besides indicating that laws do "conflict", it seems to assume the existence of laws of equal applicability, which is not necessarily the case. Moreover, it suggests that laws "conflict" and by hypothesis there is a mechanism (e.g. of superior authority or law, while in fact there is no one) for the resolution of the conflict.

One writer has also criticized the name "Conflict of laws" as a misleading one in the sense that the object of the subject is to eliminate any conflict between two or more systems of laws which have competing claims to govern the issue before the court, rather than to provoke such a conflict, as the words may appear to suggest.

Although there are other terms, such as law of multistate problems or transnational problems, which might be technically accurate and more descriptive, the above terminologies are maintained along with their flaws for the sake of their well established usage.

Definition and Analysis

Due to its nature, varying scope and other factors, it is found to be difficult to come up with a universally agreed upon single definition of the discipline ‘Conflict of Laws’. We neither have ours. Until we have our own definition of the subject, what the writers propose is to collect majority of possible elements of the discipline and construct a functional definition (or description).

Accordingly, it can be described as a branch of law which provides procedures and guidelines to assist a judge in private litigation, to select a court and a law to which a case is closely connected, which might appropriately be applied in resolving a legal dispute before the court arising out of a set of fact, events or transactions which have a foreign element. It, traditionally, also comprises rules of recognition and enforcement of foreign judgments and arbitral awards.


It deals with the questions of when and why the courts of one jurisdiction take into consideration the elements of foreign law or fact patterns in a case or consider the prior determination of another state in a case pending before them. Although the main focus is on choice-of-law process, questions of judicial jurisdiction, and recognition and enforcement of judgments of a foreign state are also governed by the rules of conflict of laws. (See the discussion on Scope, below).

The basic concept enshrined in the above definition is the idea of a "foreign element". What do we mean by foreign element? And what does it refer to?  It is better understood by employing an explanation. When a case is said to contain a foreign element, the reference(s) may be of three natures __ personal, local, or material __ in that, respectively illustrated, if one of the parties of the case is a foreigner (including one from another federating unit) or the transaction of any nature took place, totally or partially, abroad (outside the forum state) or, finally, the object of the dispute (property, esp. immovable property) is situated in another state (including a member of federation); the case is said to contain a foreign element.

For conflict of laws to come to the scene of the court, it is essential that a foreign element should exist in a case. In other word, if the case contains no foreign element, from the outset, this area of law is irrelevant. It functions only to the extent such element exists.


There are some features that characterize this discipline. Some of the defining elements could be elaborated as follows. The application of the rules of conflicts law (choice of law) does not by itself decide a case, unlike that of the rules of law of contracts, tort, or family. It does not solve a case in the sense that its rules do not furnish a direct substantive solution to the dispute at hand. It carries the case only half a way until a certain category of law is chosen in order to dispose of the case with a substantive remedy. We cannot talk about conflicts law rules after we choose the applicable system of law. The function of the rules is only up to that stage.

Conflict of laws is one department of law but not one amongst the peer departments such as family, contracts, and tort. It does nothing on its own. It deals with most private cases of civil and commercial nature so long as they contain a foreign element. To mention a point, this discipline is not concerned with public cases like criminal, revenue, customs, constitutional and administrative cases. Much will be said on this score on the topic – ‘Rules of Immediate Application’.

This body of law is an instrument or a technique merely providing a body of rules that prescribe the conditions under which a certain court is examined whether it has adjudicatory jurisdiction to entertain a case; and if it has the required competence, what system of law, the forum's or foreign, will be employed to decide the case or whether a judgment of a foreign court will be recognized and enforced by a state's courts. (See, again, the scope)

Another nature of the discipline is that conflict problems arise at both the international and national level (interstate conflicts). In the latter case the situation arises in countries with a federal constitutional setup such as the present Ethiopia in which powers are divided between the component states of the Federation and the federal government. (See Art.50 Subs-(1) and (2) of the FDRE Const.) To the extent that the constituents of the federation are endowed by the federal constitution with the power to enact their own respective laws, the states are treated as independent for the purpose of conflicts law. Each unit is regarded as separate and sovereign entity having distinct and separate legal system concerning the areas of legislative power entrusted to them. Besides, the states are to consider one another as a foreign nation but in a sisterhood manner. Hence, a case that concerns domiciliaries of at least two states is said to contain a foreign element.

At this juncture, mention of one point is important. Except that the inter-state (state - state) conflicts work under the umbrella of the Federal Constitution ___the fundamental law of the country; inter-state conflict of laws' principles are essentially the same as to the international (country - country) conflicts. A case can also arise between a "domiciliary" of a federating state and another state in the international sense (state - foreign country). For example, a case of validity of marriage between a boy from the Gambella Region of the FDRE and his former Sudanese girl friend is said to contain a foreign element. Hence, there may be  a conflict of case. In this case, the family laws of the Gambella Region (and not necessarily of Ethiopia as a whole) and the Sudan will be vying for application ___ which of them applies to resolve the case?

Not to mention about the independent sovereign states, the laws of the federating units differ one from another in connection to their approaches to the needs of the various communities they serve. This is so because laws usually if not always, reflect the culture, custom or usage, economic status, religion, and other needs of the society which they encompass. It logically follows that different laws will exist due to the abovementioned factors. Again the natural consequence is that it will not be uncommon for transactions to arise or disputes to happen between or among persons or/and entities of those different states.


Another area of disagreement in this discipline is regarding the areas it comprises. According to the traditional view, conflicts mainly deal with three major sub-divided but interrelated areas. They are, in the chronological order in which the three subjects are likely to be met in practice, judicial jurisdiction, choice of law, and recognition and enforcement of foreign judgments and foreign arbitral awards. Many civil-law legal system nations regard questions of jurisdiction and recognition and enforcement of foreign judgments and arbitral awards as matters of international procedural law, not issues of private international law. According to these countries, the discipline deals essentially with choice of law problems.

However, these Civil Law Legal System following nations, such as France, have choice of law rules which turn on the connecting factor nationality of one or both parties. Hence, the subject in those countries often encompasses the Law of Nationality and Citizenship and some special rules pertaining to the position of aliens. Some countries also add another category to the subject: International Legal Cooperation in civil matters. However, the elements in this very paragraph do not enjoy the acceptance of conflicts scholars for they involve more of Public International Law than Private International Law. This teaching material is developed in line with traditionally established scope of conflicts - the trio and not the quartet.

In this connection, although it is obvious that Ethiopia does not have a codified and coherent conflicts law, Art.11 (2) (a) and (c) of Proc. 25/1996 and the Civil Procedure Code of Ethiopia (esp. the former) deliberately or not implies that (recognition) and enforcement of foreign judgments is not part of conflicts discipline. On the other hand, Art.3 of the Initial Draft Proclamation to Provide for Federal Rules of Private International Law prepared by the Justice and Legal System Research Institute considers the three elements as parts of the discipline. What do the three elements mainly deal with?

Judicial jurisdiction, dispute-resolving power or competence to hear and determine a case, is about whether a court of a particular state can appropriately entertain a case with a foreign element. As will be expounded in chapter two, there are different categories of theories of judicial jurisdiction.

Choice of law, for which "conflict of laws" is often used as a synonym and to which "conflict of laws" is referring when used in its narrow sense, is the most volatile, difficult and challenging of the three principal conflicts subdivisions. It is concerning the selection of the appropriate rules of a system of law, the forum's or foreign’s, which it should apply in deciding a case over which it has jurisdiction. The rules that are employed for the purpose of selection of same are known as "choice of law" rules. The issue arises whenever citizens of different states have a connection to a certain case and a contention arises as to which their respective laws differ, or there is “genuine conflict". This time a choice of the applicable law comes to the stage.

However; first, it could be argued that no choice need be made if an average solution can be distilled from the various conflicting laws; second, it is possible, perhaps, to evade that choice if the laws involved are materially the same. This much suffices for the moment. The concept's doctrines and its relationship with other fields will be dealt with in subsequent discussions.

The third and last category of the conflicts realm regards the heart of any litigation. It is about the recognition and enforcement of court judgments and arbitration awards rendered by foreign courts and arbitration tribunals, respectively. “Foreign" in this sense does also denote a state in a federation besides a fully politically independent sovereign country. For both cases, in general state means a certain geographic portion of the earth's surface having an independent system of law.

The scope of the discipline can also be seen in its relation with public international law. Private international law and public international law are two different but somehow related areas of laws. While the former, which is part of each state's domestic law, is concerned with the legal relations between private individuals and corporations/partnerships/companies, though also with the relations between states and governments so far as their relationships with other entities are governed by municipal law (an example being a government which contracts with individuals and corporation by raising a loan from them); the latter (public int'l law) is the name for the body of rules and principles which govern states and international organizations in their mutual relations about which "there exist a certain degree of consensus". However, it has to be noted that even private individuals are becoming subjects of public international law esp. in areas of international crimes.

Despite their differences, one can notice that they have a good deal of common grounds. First, in a largely common historical origin; second, in the 17th century basis of the conflict of laws in the territorial theory of sovereignty and comity; thirdly, in exception to the normal application of law created by sovereign and diplomatic immunity; and finally, by overriding considerations applied by the courts to displace the normal operation of rules of the conflicts when they threaten friendly international relations.

Raison d’être

Why and how could the question arise? Can’t we get rid of it? A certain conflicts scholar by the name Arthur Taylor von Mehren wrote that if human society were so organized that all aspects of life moved within economic, social, legal, and political spheres that were unitary and coexistence; the problems dealt with through choice of law would never arise. The reality is not, however, so. There are certain factual and legal realities that necessitate the existence of the choice of law discipline.

There is a fact, which all conflicts thinking is premised at, that some legal transactions are somehow connected with more than one legal community, either because the parties to the transaction are citizens or domiciliaries or residents of different jurisdictions, or because the occurrence that gave rise to their legal relationship took place in another state and/or their own, or because the object of their relationship is situated elsewhere. Moreover different legal communities have different laws. There is no universally established law governing relationships between private parties. In other words, integration and diversity, the two dominant features of modern culture, together give rise to conflicts cases. Different communities' cultures are naturally diverse and since this feature cannot absolutely be done away with, practical necessity calls for harmonization or integration as a sole alternate.

Because of economic, such as commerce; social, such as marriage; political; natural catastrophe; even war, and some other related phenomena: people move or travel from state to state or from jurisdiction to jurisdiction. This is aggravated (or "facilitated"?) by the "constantly improved means of transportation and communication ". This fact necessarily results in the creation of transactions connected with more than one jurisdiction. This inevitably gives rise to disputes, as in any legal transactions. But what is unique about this dispute is for the nature of the issue is inter-provincial or transnational. The transactions as well as the disputes arising therefrom clearly involve more than one state, resulting in the involvement of different systems of laws.

To sum up, it often happens that the transactions entered into in one place have force and effect in a different country or are judicially decided upon in another place. And it is to be immediately underscored that the legal order itself is decentralized among a plurality of sovereign or autonomous authorities. In other words, the laws of many countries even regulating similar categories of social life may not be the same. But this situation cannot stand and continue as it is. It would be against the reality on the ground. It would be against today's interdependent society’s behaviour. The contemporary or modern situation of the civilized world ___ integrated society (e.g., via globalization, to the extent, in an international scene and “to live as one economic and social community" in a federal scene) demands the integration of the diverse laws. As indicated above, therefore, necessity is the fundamental motivating force - the need for order so that better life can exist and continue.


As a mechanism; if uniform laws cannot be made for all states which is largely unattainable, it will be the concern of the conflict of laws realm to come up with a mode of adjustment to do away with the unfavourable effects of the existence of diverse laws.

But, after all, why such a worry? Why don’t we simply apply the law of the forum for any case that comes to the attention of the forum, which is the easiest way to the judge no matter whether it involves a foreign element? What are the controlling motives behind allowing the application of foreign laws but in another nation’s soil?

The dominant motivating principle is the desire to do justice in cases involving a foreign element. The invariable application of the lex fori i.e., the local law of the place where the court is situate, would often lead to gross injustice as in this case: suppose a couple were married abroad many years ago. The marriage ceremony (which is not an essential element in a marriage relationship), though regular according to the law of the place where it was performed, did not perhaps satisfy the formal requirements of the forum law. Nevertheless, to apply the forum's relevant law to test the formal validity of such a union, and thereby to deny that the couples are husband and wife, would be nothing but a travesty of justice.

Generally, according to the traditional choice of law method, the way this objective should be achieved is through the proper functioning of the carefully formulated choice of the relevant or appropriate legal rules which are also believed to have substantially incorporated sense of justice and are structured based on a sufficient or genuine connection. The rules to this effect are carefully formulated means that not only should the choice-of-law criteria employed be more subtle, more sensitive to actual fact patterns but they should also reflect the law's general concern for substantive justice in order to render, at the final analysis, a just result.

In other words, the local law (lex fori) may not always necessarily be the proper law (lex causae) that should govern the transaction at hand. Another law other than the lex fori might be the appropriate law. In both ways, to apply either the lex fori or foreign law; it is through the predetermined choice-of-law rules that one can reach the applicable law. The choice-of-law rules help us settle the problem of choice between possible eligible laws. A judge is required essentially to apply the law found to be applicable through the direction of the choice-of- law rules unless there are strong reasons such as public policy not to do so. Any choice-of-law rule should not express any bias for, or may be against, forum law. It should only put the bases or criteria that would enable us select the appropriate applicable law, which could be the forum's or another country’s.

The other main reason why recognition and thereby application of a foreign law in a case containing a foreign element is necessary is to determine the rights and obligations of the parties in the sense that if the court is to carry out in a rational manner, the policy to which it is committed __ that of entertaining actions in respect of foreign claims __ it must be in the normal course of things, take account of the relevant foreign law or laws which the parties' concerned rights and obligations were created (the Vested Rights Approach). In other words; if the parties have selected a foreign law, expressly or impliedly, to govern their rights and liabilities under it, and have regulated their positions on the assumption that the foreign law would govern, it would in most cases be wholly wrong for the forum court to impose different rights and duties on them by applying the unintended local law. The assumption is that two countries’ laws of even the same legal category are different in their substance. Accordingly, the right and duties they create are different in content. This necessarily implies that the legal effects of an act performed in one state differ from those of another state's legal effects of similar act. It is from this situation that the threat of limping legal relations emanates – when a legal condition created by one law is not validated by another.

It is the task of the choice-of-law rules to intervene in order to prevent limping legal relationships and protect individuals who acted in careful compliance with the law which is believed to govern their everyday legal conducts. Individuals should be able to know what rule of law to govern them and have reasonable expectation that this rule of law will be the measure of their rights and obligations whenever and wherever the question may eventually arise. In that a right having been created by the appropriate law of a state where some definitive fact occurred, the recognition of its existence should follow everywhere unless public policy reasons of the forum forbid so.

Another objective that conflicts law is destined to achieve is preventing or reducing forum shopping which is an impediment to the smooth operation of law in multistate cases caused by the existence of the combination of multistate legal intercourse and legal diversity. Forum shopping is making use of jurisdictional options to affect the outcome of a lawsuit provided that all courts would always apply their own laws. This is again due to the assumption that laws of different states are not the same.

How can we reduce forum shopping?

The two ways this goal could be achieved are: first, to delineate the boundaries of a court's jurisdiction in multistate cases in the sense that there will be only one state where the plaintiff could bring suit and there would be no opportunity for forum shopping. In the presence of the conflicts law applicable to the whole federation, this is attainable in interstate conflicts problem involving cases. Second; which is also possible to be achieved having a federal choice-of-law rules, is even the plaintiff has a choice between several laws for a given case; a unilateral choice of forum would not make any difference to the outcome of the case. The key point here is to have one choice-of-law rule that directs to a fixed applicable law.

Not only indiscriminately applying the local law, the following illustration can elaborate how injustice can also be made when the forum court assumes jurisdiction over any case which is referred to it. A great injustice might be done to a foreigner, who is abroad and who has not agreed to submit to a forum's court a dispute arising from a transaction which is not connected to the forum by summoning him before that court and so placing him in dilemma that either he has to incur the inconvenience and expense of coming to the forum to defend his interests or he has to run the risk of default judgment and so putting in peril assets he may possess here.

Finally, let us wind up our discussion looking at how the third element of conflicts __ recognition and enforcement of foreign judgments and arbitral awards, can promote justice or, conversely speaking, avoid injustice. The following example can afford a justification for granting recognition and enforcement to a foreign decision. If the rendition forum (the forum that rendered or passed the decision) has exclusive jurisdiction but the judgment can only be enforced in the recognition or enforcing forum (assume the court is where sole enforcement can be effected); or in other words, if the person cannot bring a de novo action in the recognition forum for the latter lacks judicial jurisdiction and the person cannot demand enforcement in that forum, he will be left without any remedy __ which is completely unfair! The only alternative to do away with this gross injustice is to lend a hand i.e., to recognize and/or enforce the judgment.

Generally, it is via the various conflicts rules besides choice of - law rules, the rules concerning judicial jurisdiction, and recognition and enforcement of foreign laws and arbitral awards, acts and decisions that the above ends or goals __ to do justice and to determine the rights of the parties’ __ could be achieved. How? The conflicts rules, in a way of protecting states' (or their citizens') legal intercourse from being greatly impeded, settle the problem of choice between eligible laws, delineate the boundaries of a court's jurisdiction in multi-state cases, and put a standard to measure the acceptability of foreign judgments either to recognize or to recognize and then enforce. The same holds good for awards.