Intellectual Property and Private International Law

By James J. Fawcett; Paul Torremans | Go to book overview

Preliminary Remarks
I Choice of law rules455
II Mandatory rules of the forum456

I
CHOICE OF LAW RULES

Once a court has decided that it possesses jurisdiction, it must move on to the next stage of determining the law applicable to that case, ie which State's substantive law governs. This is of vital importance. To illustrate this, we can take the example of unfair competition. The plaintiff complains that disparaging remarks have been made about his product. Under Swiss substantive law, there is an actionable tort of unfair competition, whereas under English law there is not. It follows that the plaintiff will recover damages if Swiss law is applied, but fail to do so (at least for breach of unfair competition law) if English law is applied. In order to determine whether English substantive law or that of a foreign State applies, resort has to be made to choice of law rules. Choice of law rules are expressed in terms of juridical categories, such as tort and contract, and connecting factors, such as the place where a contract was made or where a tort was committed.1 To take an example, there is a choice of law rule that succession to immovable property is governed by the law of the situs. The juridical category is succession to immovable property, the connecting factor is the situs.2 There are different choice of law rules for different juridical categories. The choice of law rules for contract are very different from those for tort, and both of these are very different from those for property. The first step in the process of ascertaining the applicable law is, therefore, to classify, or, as it is sometimes called, characterise the cause of action, ie allocate the question raised in a particular case to its correct legal category.3 Once this has been done, it is possible to move on to the next step of applying the appropriate choice of law rule. It is not only important to classify the cause of action, it is also important to classify the precise issue arising before the court. The significance of the issue can be seen by looking at the contract choice of law rules. If the issue is that of formal validity of a contract, a different choice of law applies from that where the issue is that of capacity to contract. The choice of law rule is different again where the issue is that of interpretation of the contract. Application of the

____________________
1
Dicey and Morris, p 34.
3
Cheshire and North, p 44.

-455-

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