In all lawsuits involving conflict of laws, questions of procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.
What issues are procedural?
This is a part of the process called characterisation. Issues identified as procedural include the following:
By initiating the action before the forum court, the plaintiff is asking for the grant of the local remedies. This will not be a problem so long as the form of the relief is broadly similar to the relief available under the lex causae, i.e. the law selected under the choice of law rules. But forum courts may refuse a remedy in two situations:
The local law determines who can sue and be sued as parties to the action. The case law on this question is not very consistent. For example, the English court held in Banque Internationale de Commerce de Petrograd v Goukassow 2 KB 682 that a dead person cannot be a party to an action even though this was possible under the lex causae. However, if a foreign entity has legal personality under the law where it was established, it can be a party to English proceedings. Thus, in Bumper Development Corp. v Commissioner of Police for the Metropolis 1 WLR 1362 an Indian temple that was "little more than a pile of stones" could be a party.
All questions of evidence to determine the admissibility and probative value of evidence and whether a witness is competent, are dealt with under the lex fori, except that presumptions, both rebuttable and irrebuttable, are usually rules of substance. In some cases, the application of the lex fori makes sense—after all, if the forum rules require legal documents to be printed in a twelve-point font, and the choice of law state requires the same documents to be printed in a fourteen-point font, it makes little sense to require the court to determine which font size should be used in a choice of law dispute. However, many contentious cases have centred on findings that issues such as the burdens of proof, the admissibility of evidence, and statutes of limitations are procedural rather than substantive, because these rules can change the outcome of a case.
The status of statutes of limitations is usually regarded as having public policy implications, particularly where foreign periods are either very long or very short. In extreme cases, the lex fori will be applied to protect the interests of vulnerable parties, e.g. the English court held in Jones v Trollope Colls Cementation, The Times, January 26, 1990, that a foreign limitation period of twelve months would be ignored because the plaintiff had spent a significant proportion of this time in hospital and had been led to believe her claim would be met. In the U.S., statutes of limitations would normally be considered procedural, but most states have enacted so-called borrowing statutes, which "borrow" the statute of limitationsfor the cause of action from the state in which the cause of action arose.
The lex fori determines whether a foreign judgment can be recognised and, if so, how it will be enforced, e.g. what property belonging to the defendant may be taken to satisfy the judgment. But in the Law of Contract, this is subject to Article 10 of the Rome Convention 1980 which provides that the applicable law governs the consequences of breach, including the quantification of damages.
