Dépeçage
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In
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...
, ''dépeçage'' (from the French, meaning "dismemberment") is a concept within the field of
conflict of laws Conflict of laws (also called private international law) is the set of rules or laws a jurisdiction applies to a Legal case, case, Transactional law, transaction, or other occurrence that has connections to more than one jurisdiction."Conflict o ...
whereby different issues within a single case are governed by the laws of different
jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
s. In
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
countries, ''dépeçage'' can be used when a single
contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
provides that different parts of the contract shall be governed by different laws, or in the absence of a contract when a court's own rules on
choice of law Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states (as in ...
cause it to apply different bodies of law to different questions.''In re Air Crash Disaster near Chicago'', 664 F.2d 594, 610-11 (7th Cir. 1981) The concept originated in civil law countries, but has also been adopted in common law countries such as the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
and
Ireland Ireland (, ; ; Ulster Scots dialect, Ulster-Scots: ) is an island in the North Atlantic Ocean, in Northwestern Europe. Geopolitically, the island is divided between the Republic of Ireland (officially Names of the Irish state, named Irelan ...
pursuant to the Rome Convention on the law applicable to contractual obligations (Article 3(1)). In practice, it is relatively rare for a contract to have more than one expressly chosen governing law. Two examples of such situations are: * In derivatives transactions governed by
International Swaps and Derivatives Association The International Swaps and Derivatives Association (ISDA ) is a trade organization of participants in the market for derivative (finance)#Over-the-counter derivatives, over-the-counter derivatives. It is headquartered in New York City, and has c ...
(ISDA) standard documentation, it is common for the
ISDA Master Agreement The ISDA Master Agreement, published by the International Swaps and Derivatives Association (ISDA), is the most commonly used master service agreement for over-the-counter (OTC) derivatives transactions internationally. It is part of a framew ...
to be governed by the laws of
New York New York most commonly refers to: * New York (state), a state in the northeastern United States * New York City, the most populous city in the United States, located in the state of New York New York may also refer to: Places United Kingdom * ...
state, and for the Credit Support Annexe to be governed by
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
. This is because the provisions of English law relating to title transfer under the Credit Support Annexe are thought to be more favourable to the secured party than New York law under the equivalent Credit Support Annexe published by ISDA. In reality however, although the Annex is described as forming part of the same agreement as the Master Agreement, physically as well as conceptually, they are really two separate documents. * In ship financing transactions, it is quite common for a statutory ship mortgage to be taken over the vessel which will be governed by the laws of the state in which the ship is registered (which will often be an Offshore Financial Centre or jurisdiction which provides for
flags of convenience Flag of convenience (FOC) refers to a business practice whereby a ship's owners register a merchant ship in a ship register of a country other than that of the ship's owners, and the ship flies the civil ensign of that country, called the flag ...
), however, such mortgages are usually supplemented by a separate deed of covenants, and these will normally be governed by the law which governs the primary financial documentation.


References


Further reading

*J H C Morris. "False conflicts, dépeçage and foreign law as datum". The Conflict of Laws. Third Edition. Stevens and Sons. London. 1984. ISBN 0-420-46890-0, p 526 at pp 528 to 530. *David J Levy (ed). "Depecage - Applying the Law of Different States to Separate Issues". International Litigation. American Bar Association. 2003. Section 7.4.6
p 258
et seq. *Fabrizio Cafaggi (ed). "(b) Choice of one law applying only to interdependence issues". Contractual Networks, Inter-firm Cooperation and Economic Growth. Edward Elgar. 2011
p 211
et seq. *Sahar Karimi and Evaristus Oshionebo, "Depecage in the Context of International Upstream Oil and Gas Contracts" (2020) 20 Asper Review of International Business and Trade La
77
*Christian L Wilde, "Depecage in the Choice of Tort Law" (1967 to 1968) 41 Southern California Law Revie
329
*Willis L M Reese, "Dépeçage: A Common Phenomenon in Choice of Law" (1973) 73 Columbia Law Revie
58
(No 1, January) *Christopher G Stevenson, "Depecage: Embracing Complexity to Solve Choice-of-Law Issues" ( 2003 ) 37 Indiana Law Revie
303
*Symeon C Symeonides, "Issue-by-Issue Analysis and Depecage in Choice of Law: Cause and Effect" (2013 to 2014) 45 University of Toledo Law Revie
751
*Alex Mills. "C. Dépeçage" in "The Application of Multiple Laws Under the Rome II Regulation". Ahern and Binchy (eds). The Rome II Regulation on the Law Applicable to Non-Contractual Obligations. Martinus Nijhoff Publishers. 2009. p 133 a
p 136
et seq.


External links

* Conflict of laws Contract law {{international-law-stub