The Incidental Question

A case involving private international law may place a subsidiary issue, as well as a main question, before the court. Once the relevant choice of law rule has been applied and the law to govern the main issue thereby determined, a further choice of law rule may be required to answer the subsidiary question affecting the main issue. This problem may be illustrated as follows. Suppose that W claims rights of intestate succession to H’s immovables in Italy. According to English rules of private international law, this falls to be determined by Italian law as the law of the situs.1 Assume further that, under English conflict rules, W is recognised as H’s widow, but not under Italian rules, because, for instance, Italian law does not recognise H’s divorce from his first wife. The main problem, whether W can succeed to H’s estate, is clearly determinable by Italian law, but must the subsidiary problem of the validity of the marriage also be referred to that law?

Historical and Cultural Archaeology Studies · Legal case studies and regulations · Psychology · Qualitative Research Methods and Ethics