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مشاهدة النسخة كاملة : Lex fori



د/سالي جمعة
12-06-2010, 02:20 AM
Lex fori


From Wikipedia, the free encyclopedia
In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law the forum actually applies to resolve the particular case.


Explanation
Sovereignty comes into being through a process of recognition by the international community in which a de facto state is formally accepted as a de jure state and so becomes the legitimate government with territorial control over a defined area of land and all the people who reside within its borders. One of the most important sovereign powers of any government is to enact laws and to define the extent of their application.

Some laws will apply to all the land and its peoples. Others will be of more limited application. These laws will be applied through different bodies and institutions. Some will be formally constituted as courts. Other bodies will exercise specific functions within quasi-judicial, administrative, religious or other frameworks. For example, in Pakistan, section 7 Muslim Family Law Ordinance enacted in 1961 reformed the traditional form of Islamic divorce known as the talaq by requiring that notification of the pronouncement of the talaq must be delivered to the Chairman of a local administrative unit known as the Union Council which must consider whether the parties can be reconciled. All such bodies are termed forums and each state will carefully define which laws may be considered or applied, by whom, and in which circumstances. These are the issue of jurisdiction and procedure.

When a lawsuit is instituted and the court has accepted that it has jurisdiction, the parties will normally expect the local laws to apply, reflecting a presumption of territoriality — that each state is sovereign within its own borders and the laws of no other state or international body will apply extraterritorially or supranationally. If foreign laws did apply, the state would be less than sovereign within its own borders. However, as social mobility has increased and the Internet encourages people to trade across national boundaries, a need to recognise the relevance and importance of foreign laws to dispute resolution has arisen. Hence, within the precise limits set by the lex fori, local courts may sometimes apply one or more foreign laws as the lex causae if the local politics, public policy and the dictates of justice require it. For a more complete explanation, refer to the pages on characterisation, and choice of law.

A further issue for the lex fori to consider is the situation where a dispute has already been litigated in another state. Can the foreign judgment be recognised and enforced by action in the courts of a second state? To require cases to be relitigated is expensive and time-consuming, so most states with developed legal systems have entered into mutual or multilateral treaties allowing for judgments to be enforced unless one or more specified defects can be shown (see enforcement of foreign judgments