Lex fori refers to the procedural law of a legal forum, while lex causae refers to the substantive law. In cases where the substantive law of one jurisdiction differs from that of another, the lex fori of the second jurisdiction applies, while the lex causae of the first jurisdiction applies. This prevents forum shopping and ensures that legal procedures are followed according to the laws of the trial’s location, while the outcome is determined by the laws of the original jurisdiction. The lex fori includes matters such as filing procedures and witness-calling protocol, which affect the case’s progress but not the application of relevant law.
Lex fori is literally translated from the Latin into “law of the forum”. What this means in practical terms is all law that relates to procedure or formalities in a given legal forum. Typically, the lex fori is a concept that becomes relevant in situations where the substantive law covering the issue at hand is different from the substantive law of another valid forum where the issue could be adjudicated.
Procedural law must be differentiated from substantive law, called lex causae. Take, for example, a situation where a cause of action has arisen out of events involving the law of one jurisdiction, but the case may be adjudicated in a second jurisdiction. If the party determining forum seeks to hear the case in the second jurisdiction, the lex fori of the second jurisdiction applies and the lex causae — the substantive law — of the first jurisdiction applies. Put simply, the legal procedures followed in the case are determined by the laws under which the trial takes place, but the outcome of the case is determined by the laws under which the action originally took place.
The reason for this is the problem of what is called “forum shopping”. In the event that the person bringing the case has a choice of multiple venues that have different substantive law, there are times when the substantive law in one venue benefits one party more than the other in that particular cause of action. The application of the substantive law by the jurisdiction in which the cause of the action arose and the application of the lex fori of the forum in which it is judged solves this problem.
The Lex fori could include important issues such as the right to a jury trial and the burden of proof. Generally, however, it refers to less important matters such as the filing process, pre-trial hearings, witness-calling protocol, and the like. These issues might affect the progress of the case, but do not directly affect the outcome in terms of applying the relevant law. Therefore, one party’s choice of lex fori will not unfairly prejudice the second party as the choice of lex causae might do.
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