By:- Name- Sanjana Tripathy
5th Year Learner Symbiosis Law School, Noida
Dépeçage is a French word which means “cutting up, dismembering, carving up.” Legally, it implies the court’s use of different state laws to different issues in a legal dispute, choice of law on an issue-by-issue basis. It is a procedure of cutting up a case into individual issues, each subject to separate choice-of-law analysis. Specifically, the doctrine of dépeçage states that different substantive issues in a tort case may be settled under laws of different states where the choices which impact decisions contrast.
Issue-by-issue analysis implies that, if a case (or, to be more precise, a cause of action) includes more than one issue on which the substantive laws of the involved states conflict, each issue ought to be subjected to a different choice-of-law analysis. In the event that such an analysis prompts the utilization of the substantive laws of various states to the distinctive issues, at that point the subsequent phenomenon is called dépeçage. Thus it is the use of the substantive laws of various states to various issues of a similar cause of action.
Dépeçage alludes to an idea in the conflict of laws whereby distinctive issues in a specific case might be governed by the laws of various states. In common law nations, dépeçage is normally used to allude to a single contract which gives that distinctive parts of the agreement will be governed by various laws.
The Restatement (Second) of Conflict of Laws made an endeavor to abridge the idea of choice of law in American courts under "significant relationship test." Section 6 of the Restatement presented the different contemplations of interest analysis as:
From the Restatement, Section 145 turned into the communicated language of the principle of depecage. This section presented this idea as:
These contacts are to be assessed by their relative significance regarding the specific issue. Consequently, by calling for the choice-of-law analysis for specific issue and by providing contacts to be taken into consideration, the Restatement lays a system for the application of dépeçage.
Article 4.2 of the Paraguayan Law, imitating Article 2.2 of the Hague Principles, expresses that the parties may pick the law relevant to the entire contract or to just piece of it; they may likewise pick diverse laws related to various parts of the agreement, given that they be plainly recognized. Hence, dépeçage, a deduction of the gathering self-rule guideline, is unmistakably acknowledged, in accordance with Rome I (Article 3(1)3) and the Mexico Convention (Article 7). In practice, dépeçage is visit in universal transactions in regards to circumstances relating to the currency of the contract, or particular clauses related with the execution of specific obligations, for example, acquiring legislative approvals, and in addition repayment or obligation statements.
DRIVING FORCE OF DEPECAGE
The legal concepts which are the driving force of dépeçage are as follows:-
Babcock v. Jackson was a single-issue conflict therefore the court did not have to turn to dépeçage i.e applying the laws of two different states. Be that as it may, the court plainly flagged its preparation to take part in dépeçage by expressing in announcement that it would have applied Ontario law had the issue identified with the way in which the defendant had been driving his car at the time of the mishap or to the defendant’s activity of due consideration. Through this proclamation, the court articulated a critical difference between:
Receiving the similar difference, the Restatement (Second) adopted the application of laws of various laws to these two classifications of issues: For instance, a state has an undeniable enthusiasm for directing the conduct of people inside its region and in giving redress to wounds that happened there. Along these lines, subject only to special cases, the local law of the state where conduct and damage happened will be applied to decide if the actor fulfilled minimum guidelines of acceptable conduct and whether the interest influenced by the actor’s conduct was qualified for lawful protection. Then again, the local law of the state where the parties are domiciled might be applied to decide if one party is unsusceptible from tort risk to the next whether a visitor traveler has a privilege of activity against the driver of a vehicle for wounds endured because of the latter's carelessness or whether tort claims emerging from the damage survive the death of the tortfeasor. Babcock involved just the latter issue, the visitor traveler's entitlement to sue the host-driver, and the court connected to it the law of New York, the party's residence. A dépeçage would have happened if Babcock likewise involved one of the issues portrayed in the principal section of the above-cited extract—i.e., regardless of whether the driver's conduct abused an Ontario traffic rule and the court had connected Ontario law to that issue.
In In re Air Crash at Belle Harbor, the court recognized the principle of depecage i.e. that in a single action, different states may have different degrees of interests with respect to different operative facts and elements of a claim or defense.
In In re Air Crash Disaster near Chicago, applying California choice of law, the Court specifically affirmed the principle of depeçage stating that critical to conflicts analysis is the notion that must be examined the choice-of-law rules not with regard to various states’ interest in general, but accurately, with regard to each state’s interest in the specific question of punitive damages.
In undertaking an issue-by-issue analysis, a court faces much better chances. In fact, the court risks for all intents and purposes nothing, aside from maybe a couple of long periods of additional work, by undertaking an analysis that is more probable than the conventional wholesale analysis to yield more nuanced and individualized answers for dispute cases. It bears repeating that:
While issue-by-issue investigation is for the most part gainful on the grounds that it brings the required adaptability into the choice-law-process, dépeçage in theory is neither great nor awful, neither a universal cure nor an abomination. At the point when dépeçage happens and it happens less regularly than normally expected—it is harmless in many cases and inappropriate in a couple of cases.
 Supra. See note 1.
 Supra. See note 1.
 304 U.S. 64 (1938)
 12 N.Y.2d 473, 484 (1963)
 2006 U.S. Dist. LEXIS 27387
 454 U.S. 878 (1981)
 Symeon C. Symeonides, Issue-by-Issue Analysis and Depecage in Choice of Law (28th September, 2018, 2:30pm)