Choice of Law

Choice of Law -Choice of law—rules to decide what law should be applied to the merits of an action - After jurisdiction, forum may decide to apply forum law or foreign law (lex causae) -Common law jurisdictions use the “traditional jurisdiction selecting method” - No party is required to argue choice of law as an issue • Declining to raise issue = “conflict of silence” • Judge won’t raise of their own accord, will apply forum law -If action engages conflicts + in interest of a party to raise choice of law à that party must plead + prove the law - (1) Raise why foreign law applies/which foreign law applies (connecting factors) - (2) Prove that foreign law is what you say it is—need to bring in expert (practitioner) in foreign law -Choice of law rules à connecting factors - Connecting factors are (1) “pointers” that point to a foreign jurisdictional legal system • Once determined, (2) apply the law of that place - No definition of what “the law” of X place means • Usually means apply domestic law, but sometimes court will look at their conflict laws (renvoi) Renvoi -First step of choice of law is “connecting factors”àpointer that points to “the law” of another jurisdiction - “The law” encompasses domestic law, can also encompass the conflict law of other jurisdiction -When do we use renvoi? - Yes à marriage, succession, immovable (deference to the situs) • Circumstances where common law policy wants to uphold something (marriage, will), positive outcome is desired Maybe àTorts, so far not in Canada No à contract Partial renvoi (single reference) -3 legal systems— A (forum) -Has a conflicts issue before it -Choice of law à pointed to B • E.g. pointer is to domicile of party (B) B (lex causae) -Forum/A has choice between domestic law of B + conflicts law of B -Ask what their choice of law is + if they have a conflicting choice of law rule (i.e. not domicile aka themselves): • That points back to A à remission • That points to C à transmission • (e.g. their pointer is nationality not domicile) C -Nationality of X party in issue -What to do? If forum (A) is using partial renvoi à A will accept… - Remission—accept reference back to forum, OR - Transmission—Accept pointer to law of C - (Remission vs transmission depends on pointer of X party) -Partial renvoi only looks at conflicts laws of B (lex causae) - In practice, triggered if application of lex causae domestic rules (B) leads to wrong result, then ask what their conflicts rules say à remission & transmission give another option - Get single reference backwards or onwards Total renvoi -Common law uses total renvoi (though most cases actually use partial in practice) -Scenario—A’s choice of law points to B - Total renvoi = forum (A) deferring entirely to expert B -What will B do? 4 options, “how would your court solve this case?” expert B might say… - 1. Apply our own domestic law - 2. Apply our conflict of laws—application of A or C (indistinguishable from partial renvoi) - • Nielson, applied total renvoi ended up with same result as partial 3. Apply our choice of law rule + renvoi (look to see what the law of that place would do) 4. Total renvoi, we would also defer to expert of another forum (A or C) • Total renvoi means looking at the whole law of the lex causae (Nielson) • Theoretical possibility of infinite regression (never happened) Neilson v Overseas Projects Corporation Australia, use of total renvoi—look at the whole law of the foreign jurisdiction -F: P working for D corp in China, wife injured in residence provided by D - P brings action in Australia—choice of law rule is lex loci delicti (where tort occurred) - Problem—China has 1 year limitation period (substantive so apply) -A: Finding way around application of Chinese law (wanted case to be heard) - Using renvoi, (want to apply Australian rules) consider… • (1) Want certainty + simplicity in choice of law rules § Should impose distinction between domestic and conflict rules of lex causae, need to actually consider what foreign court would do • (2) Court decides not to explicitly choose a theory of renvoi • (3) Applying lex loci delicti, going to look at the whole law of that jurisdiction - This case—Chinese civil code provide that if both parties have same nationality or domicile, their law may be applied • i.e. China would not apply Chinese law to this case (would apply Australian) • Expert evidence to the effect that china would (1) apply conflicts rules and (2) apply Aus domestic law -Total renvoi ruling, indistinguishable result from partial - No total regression (i.e. China wouldn’t then look at Aus’ conflict laws) Re Annesley -F: Will, A dies in France but never took steps to be French citizen or domicile, estate has immovable property in France, movable property in France + England - English law determined by domicile at date of death - French law à only leave 1/3 of her estate to her daughters, English law à testator has autonomy -I: whether the validity of a woman’s testamentary dispositions of movables fell under English or French law -A: Court, look at the law of A’s last domicile when she died (despite not satisfying France’s rules of domicile) - Applying law of France – domestic law or conflicts rules? • French conflicts—France would apply English law because she was a national of England - But, Court then decides no, go back to France (France would allow remittance of rules back to France to its domestic law) Applied French domestic law 1. Marriage -choice of law rules for determining validity of a marriage (must be formally & essentially valid) -Validity of marriage often arises as a subsidiary question in connection to a main question (succession) -Classification, formal vs essential - Formal à notice, witnesses, registration, civil vs religious ceremony, proxy/online marriage, parental consent • Choice of law rule = dependent on the law of place where marriage was celebrated (Brook v Brook) - Essential à Age, consanguinity (relationship by marriage), affinity (relationship by blood), single status, consent, fraud, duress, mistake (ID, ceremony), metal illness, mental reservations, impotence, sex • Choice of law rule = the law of the place of dual domicile or intended matrimonial home (Brook v Brook) -Public policy relevant, use to argue what you want Brook v Brook HL -F: English law prohibited marrying sibling-in-law, (married sister-in-law after wife died) - Couple went to Denmark to get married where it was legal, later dispute by children over estate -I: Problem of consanguinity, is marriage valid? -A: crafted 2 choice of law rules (essential, formal), before only rule was law of place where celebrated - English court refuses to apply law of Denmark (turns the stomach to have marriage be valid) - Formal validity of marriage still determined by law of place where marriage was celebrated - Essential validity depends on (1) domicile or (2) place of matrimonial home • 2 bases, not alternatives, court still has to decide whether to apply (1) or (2) Formal Validity -Governed by place where marriage was celebrated (lex loci celebrationis) (Brook v Brook) - Once law choses, then prove what is the law of that jurisdiction - Can use renvoi for formal validity (either use law of lex loci celebrationis or look at their conflicts law) • E.g. Taczanowska v Taczanowska, Polish couple married in Italy (ceremony didn’t read out article of Italian Civil Code), not valid in Italy § Looked at conflicts rules à Italy uses nationality, unfortunately not valid in Poland either Essential Validity -Governed by place of dual domicile or place of intended matrimonial home (Brook v Brook) - Tests aren’t interchangeable (Canada v Narwal) - Dual domicile à dominant rule for essential validity (Sangha v Mander) • Use for: impotence, capacity (single status) - Intended matrimonial home à look for spirit intended, don’t need a fully established home (Canada v Narwal), use for: affinity - If no/insufficient evidence is present about the lex cause, court will presume that it is the same as the forum (Sangha v Mander) - Beware of incidental vs main question (Schebel v Ungar) Canada v Narwal Affinity, use intended matrimonial home look at the spirit of what the couple intends -F: Woman in Canada, divorces husband and marries his brother in England (son lives and goes back to India) - New husband applies to immigrate to Canada, IRB no because under law of India you cannot marry your sister-in-law - IRB applies dual domicile rule (India + Canada) to find marriage not essentially valid -A: FC applied “intended matrimonial home” test - Matrimonial home does not need to be formally established, look at the spirit of the intended home, is Canada Schwebel v Ungar Capacity -F: Marriage in Hungary, domiciled in Hungary but left for Italy planned to never return - In Italy, get divorced by Jewish rules (“Get” divorce), then live in Israel separately (Israel domicile) - Wife comes to Canada and marries S, eventually S asks for annulment claiming she never had capacity to marry -I: Single status depends on whether Canada would recognize divorce (Canadian law at time would not recognize Get divorce) -A: issue is capacity à depends on domicile of the individual - Domicile in Israel, recognizes Get therefore validly divorced - Incidental question? Had question been asked differently S could’ve gotten result he wanted • I.e. ask if “Canada recognizes Get divorce” rather than “did she have capacity to marry?” - Main question, conflicts issue à rules direct you to apply law of foreign lex causae Sangha v Mander Impotence, use dual domicile (dominant rule for essential validity) + is no evidence presented presume that law of lex causae is same as the forum -F: Marriage in BC (wife domicile in BC, husband domiciled in India), after ceremony he leaves and wife wants it annulled on grounds of impotence -A: choice of law options à applies dual domicile, dominant rule for essential validity - Husband provides no evidence, court finds that if no evidence is presented about lex causae or it is unsatisfactory… • Court will assume that foreign law is same as that of the forum Vervaeke v Smith -Sham marriage, one party arguing “I didn’t mean this” or ceremony where parties don’t intend to live together (immigration) -A: Choice of law rule à jurisdiction where “marriage” has most real and substantial connection 2. Torts -No completely satisfactory choice of law rule -Pre-1994, Canada followed UK choice of law rules - Phillipson Air, tort has to be (1) actionable in the forum + (2) no justifiable in lex loci delicti • (Basically, applied law of the forum) -US uses “governmental interest” approach à which government has the greater interest in hearing their law applied -Current law in England à Rome 2, lex loci delicti with big escape routes -Current rule à apply the law of the lex loci delicti, law of where the tort occurred (Tolofsen) - Applies beyond negligence, but there may be difficulty locating tort - Can have different rules for locating tort for jurisdiction vs choice of law (Tolofsen) - Exception à international torts where foreign law would be unjust • E.g. where exception does not apply, Ont driver accident in NY (Somers v Fournier) Possibility of having more than one choice of law rules (Editions Ecosociete) • E.g. defamation, law of where most damage to reputation occurred -Ways to navigate around lex loci delicti— - (1) Ecosociete, possibility of special choice of law rule for that tort - (2) Argue international tort exception - (3) Adjust where tort occurred - (4) Characterization of rules, procedure vs substantive (could be used more broadly**) - (5) Introduce renvoi (Nielson) - (6) Argue lex loci delicti contrary to public policy - (7) Forum shop - Tolofsen v Jensen -F: Car accident in Sask, P kid at time of the action and sue father and driver once he reached age of majority - Action in BC, Sask had a 12 limitation + statutory law that required passenger to establish gross negligence -I: choice of law rule, BC or Sask? -A: SCC—need order and fairness, certainty regarding territorial issues - Establishes new choice of law rule à use lex loci delicti, law of where the tort occurred - Applies beyond negligence, but may still have difficulty locating the tort • Can have different rules for locating a tort for jurisdiction (Moran v Pyle) + choice of law - Exception to general rule in case of international torts • Where lld rule may lead to injustice Somers v Fournier International tort exception, doesn’t apply where it wouldn’t make sense NY -F: Ont driver in NY, accident with NY driver - D applied for declaration that NY law should be applied, succeeded at trial level -A: P argues international tort exception, ONCA disagrees doesn’t make sense to apply Ont law - Substantive vs procedural categorization • Procedural—costs, quantification of damages, cap on damages • Substantive—pre-judgment interest, heads of damage + liability Editions Ecosociete v Barno Defamation, possibility of other choice of law rules for torts -F: Defamation case, Que corp sued in Ont by Ont mining company -A: Van Breda, yes Ont has jurisdiction because of publication in Ont - Choice of law à lex loci delicti • Problem, publication online means that any country could be place where tort occurred • Lebel—suggests that in Canada we ought to follow Aus example for defamation, apply the law of place where most damage to reputation occurred - Possibility of more than one rule for torts 3. Contracts -No Renvoi in contracts -Choice of law rule àcontracts governed by proper law of the contract - But might not be the only law of the contract (formation, formalities, illegality) The Proper Law -Propositions— - (1) K cannot exist in a legal vacuum, has to have a “proper law” from the beginning - (2) Proper law cannot float • Can’t postpone deciding proper law of the K - (3) Proper law cannot shift part way through contract - (4) Possible to have contract where different parts are governed by different proper laws • Re Pope and Talbot -How courts determine the proper law of the contract— - Choice of law à law which the parties intended to apply (Vita Foods) • May be (1) Actual (express, implied) OR (2) imputed - Express choice of law clause included in the contract (Vita Foods) • Will apply if (1) bona fide (2) legal and (3) not against public policy • Illegality hard to find, statute of home jurisdiction doesn’t matter if different express choice - If no express choice of law, implied or imputed (hard to tell difference) • Implied— parties contemplated choice of law but did not express (Amin Shipping) § • If trying to find implied, can only look in 4 corners of K Imputed—place with closest and most substantial connection with contract (Imperial Life Insurance) § § § Look for factors + weight (Richardson) (Imperial Life Insurance) • Arbitration clause—impliedly chosen law of the legal unit of arbitration as the proper law • Jurisdiction selecting clause • Legal terminology in contract & form of documents • Currency, language o BP Exploration v Hunt—use of sterling • Nature and location of the subject matter of the contract • Residence of the parties Objective proper choice of law If factors evenly balance, count heads from trial up (Miller v Whitworth) -Multifactorial approach à look at multiple factors of K to determine Vita Foods v Unus Shipping Proper law of the contract is law which the parties intended to apply, should give effect to express choices of law + illegality in jurisdiction where contract was made not material if K governed by different law -F: Contract entered in NF, carrying goods from NF to NY, ship registered in NS which hit storm and got wrecked in NS - Action brought in NS, contract action suing owners of the ship - Terms of K said (1) it would be governed by English law (at time NF was not part of Canada) + (2) D not liable for negligence of Master • If governed by NF though would be found void, didn’t include Hague rules that were enforced in England -I: Choice of law for the contract -A: The proper law of the contract = the law which the parties intended to apply - Express choice of law must be given effect • As long as (1) intention of the parties is bona fide, and (2) not contrary to public policy • Doesn’t matter if there is no connection between matter and the jurisdiction chosen - If intention not expressed, look at terms of contract and surrounding circumstances - Parties can incorporate other law (e.g. statue of legal system that is not the proper law) and that will not displace the proper law of the contract - Illegality of bill of lading? Applying NF law, NS court might find K illegal • Don’t need to consider law of where contract was made (lex loci contractus) • If statute is directory, need not comply • If statute is obligatory, NS/English court still not bound - This case—express choice of law England valid, not affected by NF statute Richardson International v Mys Chikhacheva Proper law of the contract without express term, weigh relevant factors -F: R is business in Washington, supplied ship M, R not paid and starts in rem action against the ship - Existence of lien against the ship depends on proper law of contract between P and ship company -I: Proper law of contract without express choice of law -A: To determine proper law of the contract, weigh all relevant factors - Arbitration clause—impliedly chosen law of the legal unit of arbitration as the proper law - Presence of jurisdiction selecting clause – same as above - Other factors— • Legal terminology in contract • Form of documents • Currency in which payment is to be made • Particular language • Nature and location of the subject matter of the contract • Residence of the parties - None are determinative but highly persuasive - This case—arbitration clause for Seattle Imperial Life Assurance v Colmenares Objectively determining proper law of the contract, place with which the contract has the closest and most substantial connection -F: Cuban insurance policy, head office in Ont -A: Sets out Canada’s approach for determining law of the contract objectively - Consider K as a whole + apply law of place with which the contract has the closest and most substantial connection - Factors to consider: • Domicile and residence of parties, national character of corporation, place where K made, style of contract, nature of subject matter, location of head office - This case—head office in Ontario, contract standard form in Ont Amin Rasheed Shipping Corp v Kuwait Insurance Possible case of implied law, choice of law contemplated but parties forgot to express -F: Assurance case, P Liberian company doing business in Dubai, took out Kuwait insurance coverage - P sued D in England (policy was in English language and form, money of account was English), at time K entered into Kuwait had no indigenous law of marine insurance -I: Proper law of K -A: Found that K governed by the law of England BUT, England was not forum conveniens - Disagree about how to determine law of K (difference between implied and imputed) • Implied suggests they contemplated a choice but forgot to express it Re Pope & Talbot Can have different proper laws of the contract for different parts of the contract -F: Director’s liability insurance, in BC faced successful wage claims against directors, insurance didn’t want to pay -I: Proper law of director’s liability insurance -A: Governed by either Oregon or BC - Found that contract was governed by more than one proper law - Parties chose not to choose à Court reads policies + language, finds that it contemplates in different policy sections governed by different regimes 3.1 Specific Contract issues Formation -Is there any contract at all? -2 choice of law options— - (1) Law of the forum (Mackendar) • Probably what BC would use - (2) Putative law of the contract • Law of what would’ve been proper law of the contract (assuming it exists) • Problem—need to decide proper law of K before you even have K • Albeko Shuhmaschinen—letters between D in UK and Swiss P negotiating K, letter of acceptance not received § CL says K when letter posted, but proper law of the K (putative law) would’ve been Swiss which does not recognize mailbox rule Mackendar v Feldia When determining existence of K uses forum law -F: Insurance policy, choice of law clause Belgium, loss occurred in Italy - Insurance claiming K void for illegality (claimant was in business of smuggling diamonds) + non-disclosure by P - Therefore, because it is void, no choice of law clause to be applied -I: Determining status of the contract -A: applies forum law based on consensus ad idem - Finds that the contract is not void, therefore choice clause survives and matter should be sent to Belgium Formalities -Are there any statutes that say certain procedures have to be followed in order for K to be valid? -Choice of law rule à proper law of the contract (Greenshields) Greenshields Inc v Johnson -F: Contract entered in AB, choice of law clause selecting Ont - At time AB had Guarantees Acknowledgement Act, required guarantor to sign a guarantee in front of notary -I: How to determine formal validity of contract -A: To determine whether a contract is formally valid, 2 choice of law rules - (1) Law of place where contract entered into (lex loci contractus) - (2) Proper law of the contract - No reason to invalidate Ontario as the choice of law for the proper law of the contract (Vita Foods) • Under (1) the contract is invalid for failing to comply with the Act • But under (2) the proper law of the contract (ON), the contract is valid because ON does not have a similar statutory requirement for guarantees - ABCA characterized issue as substantive vs procedure • Found Act didn't apply because it is substantive (forum should only apply on procedure in conflict) Illegality-Rules of Mandatory Application -Arises where P wants to sue D, D can plea that contract is illegal and therefore cannot be enforced -When determining illegality, consider relationship of statute to the contract à consider proper law of K, place of performance and law of the forum (Gillespie) -4 different connections between contracts and legal jurisdictions (Vita Foods) may overlap - (1) Where the contract was made (lex loci contractus) • If only connection is that contract happened to be made in that jurisdiction, Vita Foods says ignore it • Not relevant unless it coincides with the forum - (2) Place where the contract is to be performed (lex loci solutionis) (Gillespie) - (3) Proper law of the contract • No cases dealing with illegality due to proper law of the contract, no doubt that statute of the proper law of the contract applies to the contract - (4) Forum (of litigation) (Avenue, also law of where the contract was made) -Rules of mandatory application = substantive law of the forum that should never the less be applied over the proper law of the contract (Avenue) - E.g. licensing requirements (Gillespie), probably Securities Act (Lloyd’s) Avenue Proeprties v First City Development Corp BCCA Applying forum law over proper law of the contract, where there is a law of mandatory application -F: P bought 3 units of real estate in Toronto from 2 Ds (AB corp registered in ON & ON corp), express choice of law ON - P repudiated K because Ds did not comply with BC Real Estate Act (submit prospectus) - P sued in BC, D claiming forum non conveniens -A: Forum can apply its own laws in substitution of proper law of K in 2 circumstances— - (1) Local law is procedural - (2) Local law is substantive but of a nature that it should be applied— • Law of mandatory application: local law specifically states that certain procedures will apply not withstanding the proper law of K (a choice of law rule) • Can also apply local law over proper law if it would be contrary to public policy to do otherwise -This case—the Act specifically states that it applies to persons soliciting the sale of land in BC whether land is in the province or not - Also against public policy to enforce a contract that is clearly in contravention of BC legislation - Juridical advantage to hearing case in BC, is forum conveniens Gillespie Mgmt Corp v Terrace Properties Illegality, consider legality of the contract according to law of the forum and law of place of performance -F: P is BC company, D is Washington partnership not licensed to manage properties - K governed by BC law, action in BC -I: Should it consider the law of Washington (statute that requires licensing)? -A: 2 approaches— - (1) Doctrine of illegality founded on domestic public policy of not enforcing unlawful bargains or requiring unlawful conduct • Then give effect to foreign legislation which is of the same order as domestic - (2) Illegality by the law of place of performance of the contract— - This case—both approaches make K unenforceable Society of Lloyds v Meinzer -F: Application for R&E of English judgments in Ont, D arguing they violate Securities Act (no prospectus) -A: Closer to illegality claim than public policy - IN Securities Act falls into illegality class 4. Unjust Enrichment -Distinct from claims on contract, but choice of law rules are similar Minera Aquiline Argentina v IMA Exploration Inc -F: P Argentinian mining company, alleged that D (British company) acquired mining property by misusing information - Immovable property in a foreign country -A: claim—unjust enrichment, choice of law rule à proper law of the obligation - Proper law of the obligation determined (Dicey) • (a) If the obligation arises in connection with a contract, its proper law is the law applicable to the contract • (b) If it arises in connection with a transaction concerning in immovable (land) proper law is the law of the situs • (c) Other circumstances, proper law is law of the country where the enrichment occurs - Clash between (a) and (b), take a principles approach rather than categorical approach, consider what legal system has the most real and substantial connection to the obligation • Dicey is setting out underlying principle of the strength of connection between the obligation and the competing legal systems • Court—where conflict examine all factors to determine which set of laws has closets and most substantial connection § Where transaction occurred § Where transaction was intended to be carried out § Where parties are resident § Carrying on business § Expectation of the parties § Where application on one law would be an injustice - This case—BC law 5. Property -Characterization is important -(1) Classification of property à movable vs immovable -(2) Categories + sub-categories - 1. Transfer of title to movable property, inter vivos transfer (Cammell) • Choice of law rule à lex situs of the property at time of transfer • Use that law to determine title - 2. Transfer of property after death (succession), movable + immovable WESA • (a) Administration of estates • (b) Succession/inheritance • (c) Wills—testate vs intestate - 3. Effect of marriage on property • • Dealt with under Family Law Act BC Conflicts provisions— § s. 107 choice of law rules, “proper law of the relationship” • Excludes renvoi § s. 108(3) & (4) recognize existence + validity of domestic contracts that might be governed by non-BC law • (5) Recognizes “community property regimes” subject to is if their first, common, habitual residence was in jurisdiction that allows CPR • Will endure for life (means limitation on what you can deal with in will) - 4. Trusts • International Trusts Act & Conflict of Laws Rules for Trusts Act -Renvoi is not apart of the law for transfer of property (Iran v Berend) Movables—Inter Vivos Transfers Cammell v Sewell Determining title to movable property = lex situs of property at the time of transfer -F: P insurer of property (lumber) shipped from Russia to England - Ship runs aground in Norway, D involved in purchase of lumber in Norway -A: choice of law rule à lex situs of property at the time of transfer - This case Norway, D got good title under Norwegian law Iran v Berend Renvoi not part of the law of transfer of property -F: Piece of temple -A: Renvoi is not part of the law for the transfer of property - No overarching doctrine of renvoi, just a tool where appropriate (where it will help the policy preferences of the forum) Succession—Wills and Trusts Administration of estate - CL, all property of deceased vested in executor (will) or administrator (no will), they collect estate, pay debts, distribute estate to Bs - May need to probate the will (validity)à court will use forum choice of law rules to determine validity Wills - - Intestate: If property spread out • Movable à law of domicile at time of death • Immovable à law of situs of property Testate: will must be (1) formally and (2) essentially valid • (1) Formal validity—witnesses, hand writing, signature, publication § Choice of lawà s. 80(1)(a)-(h) WESA • (2) Essential validity—personal capacity, proprietary capacity (community property regimes), perpetuity, poison pill, subsequent marriage § Essential validity, common law choice of law à • Movable = domicile at date of death • Immovable = situs of property Wills Estates and Succession Act ss. 79-83 -Choice of law provisions s. 79-82 - Doesn’t give will maker party autonomy - Testate succession—Provision dealing with formal validity, but no provision on essential validity of wills s. 79—eliminates renvoi - (1) In this division, reference to other law is a reference to internal law only, not their conflicts laws s. 80—requirement for formal, validity of wills made in accordance with other laws - Find one place that validates it - - (1) A will is valid as to the formal requirements for making the will and is admissible to probate if it is made in accordance • (a) With the law of the place where the will is made, • (b) The law of the will-maker's domicile, either at the date the will is made or at the date of the will-maker's death, • (c) The law of the will-maker's ordinary residence, either at the date the will made or date of will-maker's death, • (d) The law of a country of which the will-maker was a citizen, either at date made or date of will-maker's death, • (e) With the law of British Columbia, but the will is made outside British Columbia, • (f) With the law of the place where the will-maker's property is situated at the date the will is made or at the date of the will-maker's death, • (g) In the case of a will made on board a vessel or aircraft of any description, with the law of the place with which, having regard to the registration, if any, of a vessel or aircraft, the vessel or aircraft is most closely connected, or • (h) To extent that will exercises power of appointment, with the law governing the essential validity of that power (2) If a will is not valid under subsection (1), it is deemed to be valid if a subsequent amendment to the law of the relevant jurisdiction before the deceased person's death would have validated the will Trusts International Trusts Act & Conflict of Laws Rules for Trusts Act -Both provide for party autonomy, settler can chose law to govern - Can't choose one that doesn’t work -Absence express clause, Art 8 (Hague Convention on the Applicable Law of Trusts) - 4 factors for proper law of the trust • (1) Place of administration • (2) Situs of the assets • (3) Location of the trustee • (4) Objects of the trust -Proper law of the trust governs—validity, construction and effects, administration of trust -ITA excludes renvoi