The Incidental Question
The incidental question,or,preliminary question,is a technical problem of considerable difficulty which was first noticed by academic writers on the European continent.14
In private international law practice,the forum court will have already decided that it has jurisdiction to hear the case (resolving any issue relating to forum shopping) and will be working through the next two stages of the conflict process,namely: characterization and choice of law.For example,the court may classify the cause as “succession”,but it notes that the plaintiff brings the claim for relief as the deceased’s widow.Before the court can adjudicate on the main issue,it must first decide whether the plaintiff actually has the status claimed,i.e.the incidental question would be the validity of the claimed marriage.The inconvenient reality is that many lawsuits involve a number of interdependent legal issues.
In purely domestic cases,this poses no difficulty because a judge will freely move from one domestic law to another to resolve the dispute.But in a private international law case,the question is whether the incidental question is resolved by reference either to its own choice of law rules,or to the same law that governs the main issue (the lex causae).States have not formulated a consistent answer to this question.
2.1 The Elements of an Incidental Question
In judicial practice,an incidental question,in broad sense,occurs quite frequently.For example,a divorce action before the court often involves the validity of the marriage in question.In this case,divorce is the main question,while the validity of the marriage is the incidental question.Nevertheless,this is not the incidental question we are discussing now.
An incidental question in the sense of private international law occurs only when certain conditions are met.To be more specific,an incidental question in private international law presumes the existence of three facts as follows:
● The main issue under the choice-of-law rules of the forum is governed by a foreign law;
● As a precondition to the main cause of action,there is a subsidiary question involving a foreign element which could have arisen separately and which has its own independent choice-of-law rule;
● This choice-of-law rule should lead to a conclusion different from that which would have been reached had the law governing the main question be applied.
Without these prerequisites,there is no incidental question in the sense of private international law.15 Suppose that a French court hears the case of an American national who dies domiciled in California leaving movables in England.The French choice-of-law rule would refer the distribution of personal property to California law which has community property provisions entitling his widow to share in his estate.The marriage was in England and,as both the lex loci celebrationis and the lex situs,English law declares it valid even though it is void ab initio under California law because it is considered bigamous: a divorce decree granted by the Arcadian courts was recognized as valid in England,but not in California.Should the widow’s claim be determined by the English or California law?
There are different views: some writes argue that the widow’s claim should be dismissed because otherwise the French conflict rule that succession to movables is governed by California law would be undermined; others insist that the widow should be entitled to share in her husband’s estate because otherwise the French conflict rule that the validity of the marriage is governed by English law would be undermined.(https://www.daowen.com)
2.2 Law applicable to an Incidental Question
Ever since Melchior and Wengler discovered it,conflicts scholars have pondered this problem under the heading of “incidental question”,or “preliminary question”.In the past,academic writers have tried to find a general solution,based on logic and theory,that would apply in every case.But they failed.Scholars are sharply divided.
Some argue that the incidental question should be governed by the choice-of-law rules of the lex fori,as it is an independent issue which is of similar,if not the same,importance to the forum.Moreover,if the incidental question is governed by the lex causae of the main question,internal inconsistency would occur,i.e.,the forum may consider the issues which are in essence arising out of the same fact by different laws.This approach has been endorsed by many civil law countries.
However,others believe that the incidental question should be determined by the lex causae of the main question and not by the conflicts rule of the lex fori.They maintain that the incidental question is not entirely independent from the main question; therefore,they should be determined by the same choice-of-law rules.Moreover,this approach is the only one that can ensure international harmony,which has been supported by many common law countries.
The root of difficulty is that the classical conflicts doctrine compels a choice between two evils: internal inconsistency (the forum considers the same fact,e.g.marriage,to be both valid and void) and international disharmony (purporting to defer to foreign law,the forum renders a decision contrary to that which the foreign legal system would reach).Either choice is equally unpalatable; there is no satisfactory solution for this self-inflicted embarrassment.16
Recently,some scholars argue that each situation should be looked as separately in order to find a solution that produces the best results in that situation.As one writer puts it,“there is really no problem of the incidental question,but as many problems as there are cases in which incidental questions can arise.”17
2.3 Chinese Approach
The preliminary question,or the incidental question,in the context of private international law presumes the existence of three facts; consequently,it seldom occurs in judicial practice.For this reason,neither the Conflicts Act nor any existing Chinese statute contains a provision on it.In judicial practice,Chinese judges and counsels usually do not even notice the incidental questions that present themselves.
For the purpose of improving the Chinese private international law regime and the quality of international civil justice,the Supreme People’s Court considers it necessary to fill the lacunae.Thus,the Interpretation (I) makes the following provision for the incidental question in Article 12:
In case the resolution of a foreign-related dispute depends on the resolution of a preliminary issue,the Peoples’ Court shall determine the applicable law to the preliminary issue by its nature.
The incidental question,ever since the scholars discovered it,has been acknowledged as a technical problem of considerable difficulty.As analyzed above,common law countries tend to support the law governing the main issue,while most civil law countries apply the choice-of-law rules of the forum.Recently,more and more scholars suggest that a priori reasoning should be avoided and a flexible approach adopted,taking the nature of the individual case and the policy of the forum thereto into account.Article 12 of the Interpretation (I) suggests that the SPC chooses to adopt the traditional civil law approach.To be more specific,this article requires a Chinese court to determine the law applicable to an incidental question by its nature,which suggests that the SPC tends to deem the incidental question as an independent issue,separated from the main question.Hence,law applicable to an incidental question should be,in principle,the conflict rules of the lex fori.18