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4 J. Priv. Int'l L. 1 (2008)

handle is hein.journals/jrlpil4 and id is 1 raw text is: Journal of Private International Law

STATUTES, CHOICE OF LAW, AND THE ROLE
OF FORUM CHOICE
MARY KEYES*
A. INTRODUCTION
There is a long-standing debate in the Anglo-Australian conflict of laws con-
cerning the interaction between statutes and the choice-of-law process. English
and Australian commentators and courts tend to favour the view that this inter-
action depends on whether the legislation in question is a forum statute. If so,
according to this view, the forum court should consider first whether the forum
statute applies, prior to considering whether the law of the forum is the law of
the cause. This article critically analyses that view. It argues that it undermines
important objectives of choice of law and is inconsistent with the fundamentally
internationalist nature of the conflict of laws. This article advocates the ortho-
dox method of determining whether generally worded forum legislation applies,
by reference to the normal choice-of-law process.
This article draws attention to the relationship between mandatory rules and
the priority which is often given to forum statutes. It also emphasises that the
method of applying forum legislation independently of the normal choice-of-law
rules is capable of manipulation by unilateral choice of forum. While courts and
commentators have noted the relationship between the forum in which a dispute
is heard and the effect that will be given to particular legislation, the influence of
choice of forum has attracted relatively little attention in the literature on the
interaction between statutes and choice of law.
This article is in five sections. Section B describes the different types of statu-
tory provisions that may be in issue in international disputes, in order to set the
context of the analysis in section C. In section C, the two incompatible methods
for determining the application of statutes in transnational litigation are
described, and the justifications for each method are critically examined. Section
D addresses the relationship between claimants' choices of forum and the appli-
cation of statutes, and shows that the principles of jurisdiction do not effectively
control the application of forum statutes. Section E is a conclusion, which identi-
fies the implications of the argument in this article for legislatures and courts.
The focus of the analysis in this article is upon Australian law and practice.
* Associate Professor, Griffith Law School, Griffith University, Australia. I thank the anonymous re-
viewers for their careful and detailed comments, Graeme Orr for his help and Eammon Atkinson
for research assistance.

April 2008

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