THE INCIDENTAL QUESTION IN ANGLO-AMERICAN CONFLICT OF LAWS

Authors

  • ALLAN EZRA GOTLIEB

Keywords:

Conflict of Laws

Abstract

In conflict of laws cases, once a court has decided whether or not it has jurisdiction to hear the matter, it proceeds to characterise the cause of action. But characterisation is often complicated by the “incidental question” which may arise as a preliminary or subsequent enquiry. Two approaches have developed out of much legal writing: the first holds that all incidental questions should be governed by the relevant choice-of-law rule of the forum; the second considers that the law governing the principal issue in the case should determine what law governs the subsidiary questions. A testament to the inherent difficulties is the lack of unanimity in the few Anglo-American cases in which the “incidental question” has arisen. Adding to the uncertainty is the doctrine of renvoi, in which a forum court considers the law of another state. Given the high level of complexity in conflict of laws problems, general rules simply cannot work in the area of the “incidental question.” Allan Ezra Gotlieb suggests methods by which satisfactory results may be achieved.

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Published

1955-05-01

Issue

Section

Legal Commentary