Understanding Legal Evasion and International Law Concepts
Item 2. Notion of Evasion of Law
Fraud law addresses situations where a person maliciously, but through lawful means, seeks to be governed by a particular law to obtain a favorable outcome. This is facilitated when the linking factor depends on the individual’s will.
Legal Nature of Fraud to Law:
No Notion of Fraud to Law: Some argue that fraud cannot apply to law because when a person is placed under a more favorable law, they have performed lawful acts. Determining intent is difficult.
Fraud in Law Exists: When a law is circumvented through acts performed to be governed by other legislation.
Conditions for the Existence of Fraud to the Law:
- Intentional activity to avoid legal rules.
- Objective acts to register under more favorable legislation.
- Intent must materialize.
Elements of Fraud to the Law:
- Individual’s will
- Change of connection factor
- Seeking a profit
Effects of Fraudulent Acts:
- Impact on the Defrauded Country: The act is invalid.
- Impact on the Country Whose Law is Invoked: May consider the act valid or invalid based on public policy.
- Impact on Third Countries: Depends on their notion of fraud to law.
Item 3. Forwarding
Positives: Laws of multiple states regulate a legal relationship.
Negatives: No applicable law for competition claims.
Forwarding Classes:
- First Degree: Foreign law forwards to the judge’s law (lex fori).
- Second Degree: Foreign law forwards to a third law.
Forwarding Doctrines:
- Doctrine of Withdrawal: Respects state sovereignty, considers the reference a withdrawal.
- Theory of Integral Reference: Considers all laws of a state, including private international law.
- Theory of Exclusive Competence of National Law: National law has exclusive jurisdiction over personal status, family law, and succession.
Item 4. Preliminary Questions
The validity of a legal relationship depends on the validity of a preliminary legal relationship. The conflict is determining which law governs the preliminary issue.
Conditions for Preliminary Questions:
- a) Main issue governed by foreign law.
- b) Incidental question has its own attachment rule.
- c) Conflict rule for the incidental issue leads to a different result than the main issue.
Item 4. Qualifications
Qualification determines the legal nature of an institution (e.g., marriage, nationality).
The Problem: Determining whether qualifications should be made under the lex fori or the competent foreign law.
Solution:
- Lex Fori Doctrine: The rule of private international law must be interpreted restrictively.
- Lex Cause Doctrine: Foreign law determines the qualifications.
Qualifications under Lex Fori:
- Classification of movable or immovable property (lex rei sitae).
- Party agreements on qualification rules are subject to public policy limitations.