Does Choice of Law Matter?

Abstract

We ought to rethink how we understand the conflict of laws in Australia with respect to forum statutes. This is an important issue: the proper treatment of ambiguous statutes is the focus of many, if not the vast majority of cases, including cross-border cases. Statutory interpretation is the primary means by which Australian courts must resolve cross-border disputes of subject matter that may engage forum statutes. This proposition requires criticism of the orthodox approach to choice of law, including the acceptance of ‘mandatory law’ as a concept for application by common law courts. ‘Choice of law’, in the traditional sense of its traditional techniques, still matters, but statutory interpretation with reference to text, context and purpose matters more in the actual life of the law.

Keywords: Conflict of laws, private international law, choice of law, statutes, statutory interpretation