UNIVERSITY OF DAR ES SALAAM

NAME: HAMISI ARAFATI J

REG NO. 2020-04-02171

COURSE NAME: PRIVATE INTERNATIONAL LAW

COURSE CODE:

COURSE INSTRUCTOR: MR. GERALD

DATE OF SUBMISSION: 05/01/2024

INDIVIDUAL ASSIGNMENT.

QUESTION

Discuss the conflict of laws in time and judicial approaches developed to address the conflict of
laws in time.
Conflict of Laws (private international law), deals primarily with the application of laws in
space. The usual question is which of the laws of several jurisdictions that are arguably
applicable extends to the transaction or occurrence. The question of what is the appropriate law
necessarily also involves a time factor because the decision must be made as at a particular time.
Thus, the conflict of laws in time refers to conflicts that arise when determining which law
should apply to a specific legal issue or dispute when the relevant laws have changed over time.
This conflict arises due to the differences in laws and legal systems across different jurisdictions
and the varying approaches to retroactive or prospective application of laws.

The conflict of laws in time may also be referred to as the situation where different legal rules or
principles apply to a specific issue based on the time at which the issue arose. This conflict can
arise in various legal contexts such as succession, contracts, torts, property, marriage and family
law.

Various time questions arise in the conflict of laws (Private International Law),The most frequent
time question that has arisen in the cases involves;

1. Where there has been a change in the content of the lex causae.
2. Where the content of the conflictual role of the forum has changed as a result of
legislation or judicial decision.
3. The question concerns the time at which the connecting factor, contained in the forum's
conflictual rule, must be. localized.
4. This associate with the third question. Once the time is known at which the connecting
factor must be localized, is the court in actually localizing the connecting factor confined
to looking at indicia which exist up to that time or can it look at matters which have
arisen subsequently.

The following are further explanation on the above time questions in conflict of laws, such as
follows;

Change in the content of lex causae,

Where the law governing the transaction or occurrence under the forum's choice of law rules, has
changed. It then becomes necessary to determine whether the lex causae must be applied as it
exists at a point of time prior to the litigation or as it exists from time to time. The general
proposition is that the lex causae will be applied as it exists from time to time.

The content of the conflictual role of the forum has changed as a result of legislation or judicial
decision.

This time question is further divided into two questions;

The question of operation of the new rule, the question here is whether once having commenced
the new rule, does it applies to prior acts and circumstances and thus has a type of retrospective
operation or it does not thus has a type of prospective operation. Laws are either parliamentary
made laws (statutes) or judge made laws through judicial decisions hence in answering this
problem the situation of changes resulting from statutes and changes resulting from judicial
decision will be separately considered.

The question of relationship between the old and the new rules, the question which arises here is
whether the new rule excludes the old rule or whether the two co-exist together.

The question concerns the time at which the connecting factor, contained in the forum's
conflictual rule, must be localized. The problem here is most obvious with regard to variable
connecting factors that by their nature are not constant. Of these the most noteworthy are the
personal connecting factors of domicile. residence and nationality. These variable connecting
factors must be changed at a particular point of time. This question is concerned with
ascertaining the governing state to know which point in time these variable connecting factors
must be localized.

Once the time is known at which the connecting factor must be localized a further question
arises. Is the court in localizing a connecting factor at particular time confined to looking at facts
and circumstances which exist at that time or can subsequent facts and circumstances be taken
into account. If subsequent facts and circumstances appear to relate to a persons intention at the
prior time then they will be relevant. This question can only arise once the time is known and
raises a question of which facts and circumstances are relevant in ascertaining the connection at
the stated time.

The following are judicial approaches developed to address the conflict of laws in time such as
follows;

Lex Fori Approach: Under this approach, also known as the "law of the forum," the court applies
the law of the jurisdiction where the case is being heard. This approach prioritizes the application
of the current laws of the forum state and disregards the effect of time on the applicable laws.
Thus the law is applied as it exists from time to time.

Cases: In Jabbur v. Custodian of Israeli Absentee Property1; a policy of insurance was issued in
Haifa, Palestine in November 1947. The event which made the policy monies payable occurred
in January 1948. In May 1948 the British mandate over Palestine terminated and the State of
Israel came into existence. Thereafter Israeli laws were passed which affected the rights of the
insured under the policy. In an action in England in 1954 it was held, in so far as it was material,
that the proper law of the contract was the law of Israel and not the law of the mandated territory
of Palestine as existing at the date of the termination of the mandate, nor a fortiori, at the date the
contract was made or the policy monies became payable.

Phillips v. Eyre2, There the plaintiff brought an action against the defendant in England for
assault and false imprisonment. The acts complained of were done in Jamaica at the instance of
the defendant, who was then the Governor, to suppress a state of insurrection and riot in the
colony. The acts were illegal by the law of Jamaica as it existed at that time but subsequently the
Jamaican legislature passed an Act of Indemnity relieving the defendant of liability. In
determining whether or not the defendants acts were "not justifiable" by the lex loci delicti the
court took into account the Act of Indemnity.

Nelson, v. Bridport 3, affords an illustration in a case involving succession to immovables. Land

in Sicily was granted to Lord Nelson in tail with a power to appoint a successor. Lord Nelson
exercised this power in his will by devising the land to trustees in trust for his brother with
remainder over. After Lord Nelson's death and during the lifetime of his brother a law was passed

1
[I9541 1 W.L.R. 139.
2
2 (1870) L.R. 6 Q.B. 1.
3
1846) 8 Beav. 547; 50 E.R. 215.
in Sicily abolishing entails and making the person lawfully in possession of such estates the
absolute owner. Relying on this law the brother devised the land to his daughter, however in
proceedings in England the remainder man under Lord Nelson's will also claimed it. The Court
took it for granted that it had to apply the law of Sicily as it existed from time to time and not as
it was at the time of Lord Nelsons death, the making of the will or at the time of the original
grants.

Principle of Continuity: This approach emphasizes the importance of legal certainty and stability.
It seeks to maintain consistency by applying the law that was in force at the time when the
relevant event or transaction occurred. This principle ensures that legal rights and obligations are
not retrospective and provides predictability to parties involved. Courts discussed this approach
in the case of Lynch v. Provisional Government of Paraguay4, whereas in this case, the deceased
died domiciled in Paraguay leaving movable property in England. An application for probate of
the will by the universal legatee was resisted on the ground of a law of Paraguay made after the
deceased's death invalidating any testamentary disposition made by him. The court approved the
rule in Story's Conflict of Laws that "the succession to personal property is governed exclusively
by the law of the actual domicile of the intestate at the time of his death". The court interpreted
this to mean that the law of Paraguay had to be applied as it existed at the deceased's death. To
overcome this temporal reference to the law of domicile in the forum's choice of law rule it was
ingeniously argued that the post-death law of Paraguay had a retrospective operation and
invalidated the will as at the date of death. The court, however, was adamant that the choice of
law rule referred to the law of domicile at the date of death and this excluded subsequent changes
to that law including those purporting to have a retrospective operation.

Public policy consideration, Courts may also take into account public policy concerns when
determining the applicable law in situations involving conflicts in time. Public policy
considerations aim to safeguard fundamental values and principles of the forum state, even if
they conflict with the laws in force at the time of the event. Public policy to deny effect to the
foreign transitional or temporal rules applies in extreme cases. In particular it has been suggested
that a foreign transitional rule which retrospectively applies a law to a prior act might have to be
disregarded in some circumstances. For example, the case of Starkowski v. Attorney-General 5,
4
6 (1871) L.R. 2 P. & D. 268.
5
3 [I9541 A.C. 155
where the legislation with retrospective operation was denied by the court when they were
determining the validity of marriage that was celebrated before the laws were changed. The court
had this to say; “It has long been settled that the formal validity of a marriage must be
determined by the law of the place where the marriage was celebrated. But if there has been
retrospective legislation there, then a further question arises: are we to take the law of that place
as it was when the marriage was celebrated, or are we to inquire what the law of that place now
is with regard to the formal validity of that marriage?” Thus by considering the public policy in
this extreme case the legislation with retrospective application was disregarded and the court
validated the marriage by using the laws that existed during celebration of it.

Transitional provisions, These are legal provisions that are specifically enacted to address
conflict of laws in time. These provisions typically outline how new laws or legal changes should
be applied to events or transactions that occurred before the change. Transitional provisions can
provide specific rules or guidelines for determining the temporal scope of the law. For instance
S. 104 of the Family Act 1975, which deals with the recognition of the foreign divorces and
annulments, prescribes in S. 104(10) that, the preceding provisions of this section apply in
relation to dissolutions and annulments effected whether by decree, legislation or otherwise,
whether before or after the commencement of this Act... Hence the recognition rules set out in
the Act apply the decrees obtained prior to the commencement of the Act.

Principle of Relativity: This approach considers the temporal application of laws based on the
interests and connections of the parties involved. It takes into account the specific circumstances
of the case, including the nationality, domicile, or residence of the parties, and applies the law
that has the closest connection to those circumstances. For instance the court in determining
whether the party has acquired a new domicile or not in the case of Bell v. Kennedy6" held that
the person concerned had not acquired a domicile of choice in Scotland at the relevant time, his
wife's death, because it was uncertain whether he would purchase an estate in Scotland, England
or elsewhere. But their Lordships were in no doubt that after his wife's death, when an estate was
purchased in Scotland, he did acquire a Scottish domicile of choice.

Fairness and equity, Some courts may consider principles of fairness and equity when resolving
conflicts of laws in time. They may weigh the interests of the parties involved and the

6
(1868) L.R. 1 Sc. & Div. 307.
consequences of applying different sets of laws, and make a decision based on what is
considered fair in the circumstances.

Generally, It's important to note that the resolution of conflicts of laws in time can depend on the
specific legal system and the jurisdiction involved. Different courts may follow different
approaches based on their legal traditions, statutory provisions, and judicial precedents
Bibliography

Pryles, M., “The Time Factor in Private International” 6, Monash University Law Review, 1980,
pp.225-239

Spiro, E., “Incidence of Time in Conflicts of Law, 9(3), The International and Comparative Law
Quarterly, 1990, p. 357-382