Part II Preliminary Topics, 4 The Incidental Question

Subject(s):

Choice of law clauses — Limitations on jurisdiction — Court proceedings

This chapter examines the issue of incidental question from a choice of law perspective. A case involving private international law may place a subsidiary issue, as well as a main question, before the court. The main issue should, under the English rules of private international law, be governed by a foreign law. This chapter first explains what an incidental question is before discussing its essential elements. It then considers two cases that illustrate the way in which an incidental question arises: Lawrence v Lawrence in England and Schwebel v Ungar in Canada. It also proposes a coherent and predictable approach for dealing with the incidental question and concludes with an overview of a problem related to that of the incidental question — dépeçage or ‘picking and choosing’.