Connecting Factors
In every conflict rule,there is an essential element serving as the test for the determination of the applicable law,i.e.,the element connecting the legal question with a particular legal system.European Continental jurists call this element “Anknüpfungspunkte,”“points de rattachment,”“momenti di collegamento,” and American counterparts speak of “point of contact” or “connecting factor.”3
Again,taking the above-mentioned rule as an example:“[T]he ownership of immovable property shall be bound by the law of the place where it is situated.” In this example,“[T]he ownership of immovable property” is the category,while,situs,“the place where it is situated” is the connecting factor.
Formally,connecting factors are the medium to combine legal relationships contained in categories and the appropriate rules of law without which conflict rules cannot exert proper function.Functionally,connecting factors are the apparent factors to establish natural connection between the factual circumstances and certain jurisdictions.
The connecting factors employed by the conflict of laws are not very numerous.The most important of those factors are the following:
(1) The domicile of a person,his nationality,and his habitual residence.These test factors are of importance for determining status,capacity,succession,the validity of marriage,etc.
(2) The situs of a thing,that is place where it is situated.In particular,the lex situs is decisive when iura in rem are in question.(https://www.daowen.com)
(3) The flag of a ship.It is decisive for practically all legal relationships of the ship and of its master or owner as such.It also covers contractual relationships,particularly contracts of affreightment,unless the parties intended to exclude the law of flag.When a ship is not entitled to carry the flag which it carries or when it hoists the flag of a state consisting of several jurisdictions,it is the law of the jurisdiction of registry that is decisive.
(4) The place where an act has been done—for example,a contract has been made,a marriage celebrated,a will signed,a tort committed.The lex loci actus is particularly important in contracts and torts.
(5) The agreement of contracting parties on the law which is to govern their contract.
(6) The place which has the closest connection with the parties and the dispute.This is particularly important in various aspects.
(7) The place where judicial proceedings are instituted.The law of the forum is particularly important because all “procedure” is governed by it,and because it applies whenever the content of the otherwise applicable foreign law cannot be proved,or when that foreign law is excluded from application for reasons of ordre public.
A fundamental problem in the conflict of laws is whether the connecting factor should be determined by the lex fori or by the lex causae.4 Since the determination of the lex causae depends on the determination of the connecting factor,it is natural that the connecting factor should be determined by the lex fori.