Dépeçage Explained
In law, dépeçage (from the French, meaning "dismemberment") is a concept within the field of conflict of laws whereby different issues within a single case are governed by the laws of different jurisdictions. In common law countries, dépeçage can be used when a single contract provides that different parts of the contract shall be governed by different laws,[1] or in the absence of a contract when a court's own rules on choice of law cause it to apply different bodies of law to different questions.[2]
The concept originated in civil law countries, but has also been adopted in common law countries such as the United Kingdom and Ireland 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 (ISDA) standard documentation, it is common for the ISDA Master Agreement to be governed by the laws of New York state, and for the Credit Support Annexe to be governed by English law. 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), 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.
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 Law 77
- Christian L Wilde, "Depecage in the Choice of Tort Law" (1967 to 1968) 41 Southern California Law Review 329
- Willis L M Reese, "Dépeçage: A Common Phenomenon in Choice of Law" (1973) 73 Columbia Law Review 58 (No 1, January)
- Christopher G Stevenson, "Depecage: Embracing Complexity to Solve Choice-of-Law Issues" (2003) 37 Indiana Law Review 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 Review 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 at p 136 et seq.
Notes and References
- Broome v. Antler's Hunting Club 595 F.2d 921, 923 (3d Cir. 1979); Don King Productions, Inc. v. Douglas, 742 F.Supp.2d 786, 791 (S.D.N.Y. 1990)
- In re Air Crash Disaster near Chicago, 664 F.2d 594, 610-11 (7th Cir. 1981)
