Essay: Statute of limitations in conflict of laws

A statute, under which one state may “borrow” a statute of limitations which is shorter for a cause which arises in the another state. The basic objective of borrowing a statute is to prevent the plaintiff from any kind of engagement in the forum shopping in pursuance to find the long term available option of statute of limitations. The statute is put to use when a plaintiff sues the defendant in a different state from the state where the act has been committed, where the lawsuit has taken place. Conflicts among the statutes are nearly common and still the issue doesn’t get the required attention in the particular discourse. Courts generally try to deal with such type of conflicts in a deceptive manner and scholars try to pass the reference or authority. Typically, the limitations has been characterized as the rules which are procedural and forum applies the statute irrespective of the degree of relation between the parties and forum of the dispute. Basically, a borrowing statute is a departure from the legislature, from the proposition that forum always have its application of statute of limitation.
The other exception to this treatment of the procedure of statutes is created judicially that one applies foreign statutes of limitations if they have been considered as substantive than being procedural, because they prescribe and not just affects the remedy, but also the right. Tests have been conducted for the determination of the prescriptive nature of the statute of limitation of which three are essential, “built-in”, “attributes” and the “specificity”.
Both judicial exception and the borrowed statutes offered the courts reasonable discretion to apply a foreign limitation statute without causing any disturbance to the general rule which classify statutes as of procedural nature. More than two-third part of the statues have become the borrowing statutes. For example, In Missouri, where the statute was borrowed,
“whenever a cause of action has been barred by it’s state laws, in the country which it is originated, the particular bar shall be a defense to any action, which was brought into the courts of the particular state.”.
On the contrary, other borrowing statutes would apply the foreign statute to the claims in which both plaintiff and defendant were not residents of the forum at the time of claim accrual or for any kind of personal injury to the people who were not residents of the forum.
ISSUES UNDERLYING BORROWING STATUTES
Statutes of limitation are the reposes statutes and when they’re not applied it is not justified that a person receiving full consideration for the contract to be made should be compelled to execute their part. An attitude of the court towards “justness” of refusal to allow an oblige to recover merely, because he has been tedious in pressing the claim may have a direct bearing upon its attitude towards a borrowing statute. In certain cases, statute of limitations were applied with very few or nil discussion as to why the passage of time should be operated to enforcement of bar of an otherwise enforceable causal action. In a leading case , a comment was made by Supreme Court Illinois Judge;
“Statute of limitations are the repose statutes which intends to describe a particular limit of time in which included remedies should be prosecuted within their provisions. They have been made to take security from the stale demands, time lapse, memory failure, witnesses death, the true nature of the transaction may be not possible to explain and parties rights can’t be really investigated.”
“Repose” and the “stale demand” appear to be the magical words.
UNITED NATIONS CONVENTION ON CONTRACTS FOR INTERNATIONAL SALE OF GOODS
United Nations Convention on Contract for International Sale of Goods applies to the contract of sale of goods between parties whose places of business are in different states;
a) When the states are contracting states;
b) The fact that parties have their business places in different states to be disregarded whenever this fact doesn’t appear either from the contract for between any dealings, or from the information disclosed by, the parties at any time before at the time of contract ends.
c) When rules of the private International law lead to the application of the contracting state law.
d) Neither the parties nationality nor commercial or civil character of the contract or of the parties is to be considered while determination of the convention application.
Convention also states the contract of sales where it doesn’t have the application.
Convention on Contracts for the International Sale of Goods. New York court applies German statute of limitations and German tolling provisions in refusing to dismiss case on the grounds for statute of limitations.
Thyssenkrupp Metallurgical Prods. GmbH v. Energy Coal, S.p.A.
A German company, Thyssenkrupp Metallurgical Products, GmbH, plaintiff in this case is involved in the business of trading raw materials. The defendant in this case, Energy Coal, S.p.A. (“Energy”), is an Italian company which sells carbon and mines products. In continuance of the contract between two parties signed on 14.04.2008, Energy sold Thyssenkrupp 25,000 metric tons of petroleum coke known as ‘petcoke’, which Thyssenkrupp intend and sold to a third Singaporean party, Sinochem International (Overseas) Pte., which was done under a separate contract. Contract between the first two parties contained an express warranty that petcoke has to meet certain chemical and physical tests to ensure safety and it was required that Energy should nominate an independent compay for the test of petcoke and the result would be binding on both the parties. The elements of the contract contained the provision of venue and choice of law which selected New York law and its forum.
Complaints were made by Sinochem in 2008 t didn’t have the conformity to specification which provided for an HGI (“Hardgrove Grindability Index”) of “36-46 typ.”—that is, a range that would enable the petcoke to be ground and processed. The dispute arise between the parties and the matter went to the court. Court initiated the proceedings by analyzing the finding that United Nations Convention on Contracts for the International Sale of Goods (“CISG”) has been automatically applied due to the reason being “when a transaction involves a contract of sale of goods between the parties whose business place are in different countries and if those countries are the parties to CISG. Since, it is a self-executing treaty, so it is binding unless, parties themselves opts out of it.
After deriving CISG governed the contract, they noticed it doesn’t contain statute of limitations. The court held that, “question of when an action must be brought to the court should be determined according to the law of the forum. Thyssenkrupp submitted a report citing that statute of limitation was tolled such that claims against Energy were time-based. Court majorly denied the motion of Energy to dismiss on the basis that most of their claims were timely under the German statute of limitations. Court dismissed their common law’s indemnification and contribution.
HAGUE CONVENTIONS OF 1899 AND 1907
Hague Conventions, basically a series of the international declarations and treaties which were negotiated at international peace conferences held at The Hague, Netherlands. Basically, it was conducted for laws of war, disarmament and war crimes. The objective of both conferences was to create the binding on international court for settling the international disputes which was very essential for the replacement of the war institution. The effort was basically failed at both conferences instead a voluntary forum for arbitration, the Permanent Court of Arbitration, was established.
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on Civil Aspects of the International Child Abduction is basically a multilateral treaty which has been developed by the Hague Conference on Private International law which provides a method to return a child who has been internationally abducted by a parent from one country to another. The nature of the convention is procedural. It states that retention or removal of a child is “wrongful”, whenever
• At the time of retention, rights have been exercised, jointly or alone or would have been done for the retention or removal. The custody rights may arise by the operation of law or by a administrative or judicial decision or due to the reason of an agreement which possess a legal effect under the country’s law of habitual residence.
• It is in the breach of the custody rights which has been attributed to an institution, person or to any other body, alone or jointly, under the state law in which the child was habitually resident just before the retention or removal.
Article 12 of the convention mandates for the young children who have been abducted or wrongfully taken from their habitual residence without the consent from the person with custody rights, if less than one year has elapsed from the wrongful taking or retention to the commencement date of the return proceedings. The analysis by the state department emphasized on the issue of one-year period that; reason for the passage of time , which may have made it possible for the child to form relations with new country is relevant to the disposition for the return petition. If the alleged person happened to conceal the location of child from custodian initiated by a long search for the child and hence the return proceedings are delayed, then the question is whether respondent should be given permission to benefit from the conduct absent strong countervailing considerations.
The rule of “Equitable tolling” has been applied in the United States Statute of limitations in the leading case of Young v. U.S in which Supreme Court had ruled,
“It is law of hornbook that period of limitations are subjected to the equitable tolling, unless the tolling would not be consistent with the text of the important statute”.
One-year period is very important for a parent who has abducted a child to show that who has spent more than a year in new location has been settled well in that particular location, because in most of the cases abducting parent usually returns to their native country.
CONCLUSION
The project mainly focuses on the statute of limitations in conflict of laws and the borrowed statutes which have been applied for resolving the dispute between the two parties from different countries. About the conceptions of choice of law, beginning in 1950s , shifts in the legal thinking led to drastic changes in those conceptions. For the issues of conflict of laws to be substantive, courts have applied the law of the place where the rights and duties have been vested. The location of vesting depended upon the characterization of an issue. The traditional view regarding the statute of limitations are procedural and that the procedural rules of forum have always applied has been hardly controverted although the logic has been rarely articulated and not readily apparent. One of the more reasons being is the least convincing, justifying for applying rules of procedure is the contention that it is more efficient and convenient because of the familiarity of the court with local rules.