David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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The Anglo-Australian literature on the interaction between choice-of-law and statutes identifies two competing methods for determining the application of forum statutes in transnational litigation. The classical method is that statutes of any legal system, including the forum, should be applied only if they are indicated as part of the governing law by the relevant choice-of-law rules. The alternative method requires that courts of the forum give priority to forum statutes, by determining whether those statutes apply of their own force, before considering choice-of-law. Recent cases suggest that the courts are likely to apply the second method, and are likely to conclude that forum statutes are applicable of their own force. This article argues that this method has the propensity to invest too many forum statutes with an internationally mandatory effect, and that it undermines the important internationalist objectives of the conflict of laws. These problems are compounded when one takes into account the ability of claimants to choose their forum, and by this means to manipulate the extent to which legislation is applied. The article concludes that the first method is superior and should be applied, unless forum legislation specifically states that it has an internationally mandatory effect.
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