Huber v. Steiner

Once the lex causae has been identified, a second boundary decides many commercial cases: which questions does the chosen law actually govern? Everything characterised as procedure stays with the forum. This is the authority for that rule, and for the further rule that the forum decides what counts as procedure.

This course states the case for the principle it lays down and does not set out its facts. Say what the principle is and stop; the proposition, not the story, is what carries the mark.

All matters of procedural law are governed by the lex fori — and the course records the rule without qualification, stating that there is no exception to the general principle. It is also the lex fori that decides what counts as procedure.

Step one — the practical justification. The process that will work most smoothly is the one provided by the law of the forum. A court cannot run a trial on somebody else's rules of pleading, evidence and execution.

Step two — the fairness answer to the obvious objection. A litigant may complain that the forum's procedure defeats a right good by the governing law. The answer, from De la Vega v. Vianna, is that a person who chooses a forum for enforcing his rights must accept the procedure that forum lays down.

Step three — the forum characterises. Since the substance/procedure line decides how much of the foreign law survives, the question who draws the line matters as much as where it is drawn, and the answer is the same: the lex fori.

It opens: Distinguish substance from procedure in private international law, and it is the first case to cite.

Give the two lists. Procedure covers jurisdictional competence under the domestic law, actionability, the procedure for filing proceedings, methods and modes of trial, all matters relating to evidence, and the execution of judgments. Substance is what creates rights, duties and obligations, as against a procedural law that prescribes the method of enforcing or obtaining them.

Then state the danger, which is where the marks are. Because the forum characterises, a forum that characterises generously can swallow the foreign law entirely. Leroux v. Brown is the standing illustration, and the corrective offered in this course is that not everything appearing in a law of evidence is procedural — only provisions of a technical and procedural nature, such as rules about the admissibility of hearsay.

It does not decide any particular classification; it supplies the rule and leaves each classification to be fought case by case.