Conflict of laws

A conflict of laws may refer to two distinct situations, being:

  1. Private international law which governs commercial law transactions and disputes that crosses borders. A conflict may arise between the laws of two sovereign jurisdictions.
  2. Conflict of laws internally, for example, in Australia a conflict may arise between a Federal and a State law.

Private international law

The purpose of private international law is to determine which law prevails in a situation where laws may conflict due to jurisdictional issues. The three main issues that relate to private international law are:

  1. Jurisdiction – being whether a Court has the jurisdiction over a defendant and therefore able to adjudicate a matter.
  2. Choice of laws – being the question as to which laws and procedures will apply in the adjudication of a matter (lex loci deliciti); and
  3. Enforcement or recognition of foreign judgments – being the ability to enforce a foreign judgment in a different jurisdiction due to the location of assets.

Internal conflict of laws

It may be that a conflict may arise between laws within a sovereign nation. For example in Australia, which relies on a federal system of government, there may be an inconsistency between the law of the Commonwealth and the law of a State. The Australian Constitution seeks to remedy this conflict whereby section 109 states that “when a law of a State is inconsistent with a law of Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.