In the 1890s, German and French authors Kahn and Bartin introduced the notion of lex fori for the first time. It is a well-accepted idea that has also been embraced and used by English courts.
The law of the forum, or lex fori theory, is a method of addressing the problem of characterization. The notion of characterization governs the issue of legal disagreement. The notion of characterization enables a court to determine which law will apply in a given situation. It will be difficult to apply the proper conflict of law rule until and until the same is resolved.
According to the idea, a particular issue should be classified in accordance with both the applicable domestic laws and the foreign norms of law in accordance with their nearest and closest domestic law.
If the components involved in a case are domestic, the Court will apply domestic laws; nevertheless, when foreign components such as domicile are involved, the Court must examine three primary factors:
- Whether the Court in question has the authority to hear the matter.
- The problems’ classification
- In the issues so classified, the law to be applied is a matter of choice.
Unless the parties object or there is a foreign element involved, the Court that accepts jurisdiction usually tries the matter in line with its own domestic laws. According to the Court, it is in their best interests to have their own law used because the forum’s law is regarded to be better under the better-law method.
Bartin’s argument in favor of the lex fori hypothesis is that judges and courts are oath-bound: “to the obligations of their own legal system and no one else, and can therefore only administer the same.”
So that there is no misunderstanding as to which forum’s laws should be followed, the choice of law should simply be the one that leads the matters of the Court of jurisdiction.
If the lex fori does not include an equivalent law, the Court must apply the rules of a similar law that exists in its jurisdiction.
Exception to the Lex Fori Principle
The rule of characterization that must be formed on the basis of lex fori has two major exceptions:
- Lex Situs (applicable to either movable or immovable properties)
- Lex Loci Contractus (applicable in cases of contract by correspondence)
Both of these arguments are based on the belief that this regulation would best promote the security of property/contract transactions.
Despite the fact that the idea of lex fori aims to resolve the issue of conflict of laws, it is not without flaws and criticisms.
The following is a list of their classifications:
- The theory’s implementation might cause the foreign legislation in question to be distorted and rendered useless. Non the same way, the application of foreign law may render domestic law inapplicable in a certain situation.
- When the foreign law bears no similarity to domestic law, the idea fails. For example, the grounds for divorce available to Hindus in India under the Hindu Marriage Act of 1955 may differ from those applicable in a foreign country, such as France.
- The use of lex fori might lead to a misreading of a foreign law and its application in situations where it was not intended.
- Finally, proponents of the lex fori theory appear to imply that facts must be categorised on their own, but this is not the case; facts must be given in the context of a foreign law.
A general application of the doctrine of lex fori would result in the implementation of neither the forum nor the causae law, but rather the law that is neither.
As a consequence, Bartin’s approach simply leads to less socially unfavorable outcomes. As a result, this notion has been rejected by all countries.
This notion is also false when it comes to international regulations and law, and it falls flat when there is no distinction between forum and foreign law. As a result, the lex causae theory and other characterization theories have been developed in contrast to Bartin’s idea.
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