The term “conflicts of law” refers to the procedures courts use to determine the appropriate law and place to settle a claim in cases involving litigants from different nations or sovereign states within federations. This area of law encompasses three separate but related concepts: personal jurisdiction, choice of law, and enforcement of foreign judgments. In Europe conflict of law is more commonly called private international law. Its corresponding branches are adjudicative jurisdiction, prescriptive jurisdiction, and enforcement jurisdiction.
In the context of communication, these issues come into play when publishers or broadcasters are sued in jurisdictions other than their own for material they disseminate. A New York magazine that publishes an article about a Japanese businessman, for example, could be sued for defamation in Tokyo if the subject feels his reputation was harmed there. In such a case, the forum court in Japan would first have to determine whether it has personal or adjudicative jurisdiction – or, in other words, the power to hear the claim. A court may exercise personal jurisdiction over conduct that occurs within its territory or that involves its citizens. It may also exercise jurisdiction if the effect of the injurious conduct occurs within its borders, regardless of where the actual conduct took place.
In cases involving international litigants, courts are obliged to consider the interests of other states that might assert jurisdiction as well. This practice, known as comity, is generally equated with reasonableness. In general, exercise of jurisdiction is considered reasonable if there is a link between the person, natural or a corporation, and the state; if the person has consented to exercise of jurisdiction; if the person regularly does business in the state; or if the person engaged in an activity outside the state that had a substantial and foreseeable effect within the state. If the court determines that, in the interest of justice and convenience of the parties involved, it would be better to try the case in another forum, it may refuse to exercise jurisdiction under the doctrine of forum non conveniens.
European Union nations have simplified the process of resolving cross-border disputes by adopting the Brussels Regulation, a treaty specifying the rules for exercising jurisdiction among EU members. Elsewhere, nations have attempted to form international agreements on jurisdiction with less success. The Hague Convention on Private International Law established an international agreement for business-to-business choice of court decisions. But it failed to accomplish its larger goal of developing a general agreement on jurisdiction and recognition of civil judgments, because the negotiating parties could not agree on the appropriate criteria for exercising jurisdiction over foreign defendants.
Once a court assumes jurisdiction, it must decide the law to prescribe in the case. The court may apply the law of the forum (lex fori), which is common when the legal question is procedural, or related to the rules used to decide a case. Or the court may apply the law of the site where the tort or delict was committed (lex loci delicti commissi), which is normally the case when the legal question is substantive, or related to the rights and obligations of the parties involved. So, assuming that the Japanese court in the earlier example asserted jurisdiction over the New York magazine, it would then have to decide whether to apply the defamation laws of Japan or New York.
Civil law nations, such as Japan and most European countries, predominantly determine choice of law interest based on the principle of territoriality. The lex loci doctrine operates under the theory that people should expect to be held accountable for the laws of the places where they visit or engage in business – or, in the case of media, where they publish or broadcast. The rule also fosters simplicity and predictability.
Most commonwealth nations, like Australia and Canada, rely on lex loci for choice of law as well, although they may institute exceptions in certain cases. For example, although the United Kingdom recognizes lex loci as the principal doctrine to be used in tort cases, it exempts defamation from the rule. Defamation cases still fall under its common law rule of double actionability, which requires a tort to be actionable under English law as well as the other nation’s law before English courts will consider it.
Lex loci was also the prevailing theory in the United States until the mid-twentieth century. Now, however, while territoriality is still a factor in determining personal jurisdiction and choice of law in the United States, it is considered insufficient to rely on it alone. Most US courts have endorsed the approach recommended in the Restatement (Second) of the Conflict of Laws, which is to apply the law of the state with “the most significant relationship to the occurrence and parties” (American Law Institute 1968). Many also employ interest analysis, in which the forum court is expected to consider the needs of state and international systems, the relative interests of the forum and other states that may be interested in the issue, the protection of litigants’ expectations, the policies underlying the particular law, predictability and uniformity of result, and ease of adjudication in its choice of law. Interest analysis is more nuanced and flexible than lex loci, but it also lacks predictability, an important consideration in legal systems based on stare decisis.
The borderless nature of the Internet has magnified already inherent tensions in conflicts of law. The traditional practice of relying on the place where the harm is felt to determine jurisdiction and choice of law exposes Internet publishers to potential legal action wherever the material can be downloaded. And, because standards for content vary among nations, Internet publishers can be sued in foreign jurisdictions for content that would be legal in their own country. But the Internet is just the latest in a series of modern advances that have pushed legal issues beyond sovereign boundaries. Broadcast television and radio, satellite and other types of telecommunication technology have raised similar concerns.
This dilemma has inspired calls to harmonize conflicts of law among member nations of the European Union. The EU has a choice of law agreement for contractual obligations already in place. Member nations are now trying to reach an agreement on choice of law issues in noncontractual obligations. But the treaty, dubbed “Rome II,” has been impeded by contradictory views on the latitude courts should have in determining choice of law in defamation and invasion of privacy torts, particularly in the context of Internet publication.
Courts that render judgments against foreign defendants are powerless to enforce them outside of their own jurisdictions. But most nations show deference to foreign legal decisions in the hope of encouraging reciprocal recognition of their laws and judgments. This deference is not without exception, however. Courts can refuse to enforce foreign judgments that conflict with their nation’s fundamental public policies.
- American Law Institute (1968). Restatement (Second) of the Conflict of Laws, § 6(2) and § 145.
- American Law Institute (1987). Restatement of the Law (Third) Foreign Relations Law of the United States, sect; 421(1).
- Commission of the European Communities Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations, COM  83 FINAL; 2003/0168 (COD); “Rome II” (February 21, 2006).
- Convention on the Law Applicable to Contractual Obligations, June 19, 1980, 1998 OJ (C 27) 36 (entered into force April 1, 1991).
- Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (also called the Brussels I Regulation because it replaces the Brussels Convention of 1968).
- Packard, A. (2006). Wired but mired: Legal system inconsistencies puzzle international Internet publishers. Journal of International Media and Entertainment Law, 1, 57– 96.