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Cable Address: "COLEGES".
The Foreign Lawyers' Bureau
[Law Office: Joseph C. Hyman]
299 Broadway, New York, N. Y. U. S. A.
An American institution founded in 1917 to provide complete centralized and standardized legal service on foreign trade matters in the United States and abroad.
In fulfilling this object the Bureau stands ready:
1. To advise on any point of International Private law through
2. To provide in the United States advice and expert witnesses
3. To undertake through its associate law firms abroad legal busi-
4. To effect registration of copyright, patents and trade marks in
As an illustration of the effectiveness of its organization the
And, besides, over two hundred associate law firms
"GLOBE'S LEGAL SERVICE."
DEC 23 1982
WHY A NEW NAME?
The selection of a proper nomenclature for the branch of law commonly known as "Conflict of Laws" or "International Private Law" is not a new subject for discussion amongst the jurists. The very fact of its continual recurrence shows conclusively that the present state of affairs is not a happy one, that a definite solution must be found and that such final settlement of the matter in question is a necessity not to be minimized or laid aside as unimportant. On the other hand, no period in the history of international intercourse of private individuals and the expansion of their activities throughout the world was as ominous for the growing magnitude and the importance of the body of legal rules concerned with these relations, as the years that will pass after the Great World War of 1914-1919.
The sphere of state relationship is on the threshold of very important changes. We may finally have a system of rules whose right to be called strictly "laws" no one could dispute, instead of what John Austin termed "international morality". From two entirely different quarters attempts are being made to regulate the relationship of states by setting up a supreme state authority. One is the plan establishing the League of Nations-another an attempt to set up a Labor International ruling the proletarian states throughout the earth. Either, if succeeds, if not at once, then in not a very distant future, will result in the introduction of a new body of administrative rules and practices that will supersede the present public international law. But the same state of affairs that will affect, probably injuriously, the public international law, by bringing closer commercial and cultural relations between the citizens of various states, will entail a new and a more glorious era in the growth and expansion of the body of rules known as international private law.
Facing this development, the latter branch of law stands saddled with a name or names both antiquated and wholly inappropriate. They either raise a conception entirely adverse to the real effect of the legal rules supposed to be explained by these names or made an entirely independent branch of law an appendage of a body of rules, whose very status in the legal systems is a matter of grave dispute and whose very existence is threatened by the course of political events to which we have alluded above.
It would be well, before proceeding to offer any new suggestions, to briefly review the main names suggested and used for the international private law. Let us commence with the term well known to Anglo-American jurists—“The Conflict of Laws". The objections to it are well summed up by A. V. Dicey ("A Digest of the Law of England with reference to the conflict of laws" 1908 p. 13):
"The defect, however, of the name is that the supposed "conflict" is fictitious and never really takes place . . . . . . . The term "conflict of laws" has been defended on the ground of its applicability not to any collision between the laws themselves, but to a conflict in the mind of judge on a question which of two systems of law should govern a given case. This suggestion gives, however, a forced and new sense to a received expression. It also amounts simply to a plea that the term "conflict of laws" may be used as an inaccurate equivalent for the far less objectionable phrase "choice of law".
The next most common name applied to the body of legal rules here under discussion is that of "Private International Law" or "International Private Law" (L. V. Bar's Theory & Practice of International Private Law 2nd. d. p. p. 7, 8).
"Such a phrase would mean (T. E. Holland "The Elements of Jurisprudence" (10th ed. p. 401) in accordance
with that use of word "international", which besides being well established in ordinary language is both scientifically convenient and etymologically correct "a private species of the body of rules which prevails between one nation and another". Nothing of this sort is, however, intended and the unfortunate employment of the phrase, as indicating the principles which govern the choice of the system of private law applicable to a given class of facts, has led to endless misconception of the true nature of this department of
Mr. A. V. Dicey aptly adds ("The Conflict of Laws" 1908, p. 14) that "It confounds two classes of rules which are generally different from each other. The principles of tional" because they prevail between or among nations; but international law, properly so called, are truly “internathey are not in the proper sense of the term "laws" for they are not commands proceeding from any sovereign. On the other hand, the principles of private international law are "laws" in the strictest sense of that term, for they are commands proceeding from the sovereign of a given state. such ambiguity of language, unless fully acknowledged, must lead as it has lead, to confusion of thought."
Moreover, this definition is supposed to cover also criminal law which is not "private" law, but a part of public national law.
Less common are the following expressions: "comity", "intermunicipal law", "polarized law". "Thus the term "comity" (A. V. Dicey, ibidem, p. 15) is open to charge of implying that a judge when he applies foreign law to a particular case does so as a matter of caprice or favor. . . The application of foreign law (ibidem p. 10) is not a matter of caprice or option; it does not arise from the desire of the sovereign of England, or any other sovereign to show courtesy to other states. It flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners."
"The Intermunicipal Law" suggested by Mr. F. Harrison (On Jurisprudence and the Conflict of Laws (1919) p. 131) as T. E. Holland remarked (Elements of Jurisprudence (10 ed.) p. 410) "is surely no improvement, since “municipal" in accordance with established use, is either equivalent to "national" or relates to civic organization."
"Polarized law" is a modern attempt to give a name to this branch of law (See T. Baty's "Polarized Law" (1914 Preface at p. VI). No matter what may be said of this name it is wholly fanciful and has no legal conception whatever for its basis.
E. T. Holland's definitions of "the extra-territorial effect of law" and "the extra-territorial recognition of rights" as Professor Dicey (Conflict of Laws (1908) p. 15) pointed out "are descriptions, not names". Besides, these descriptions are hardly correct without addition of the words "civil and criminal" before "law" or "rights". The courts in adjudicating on many matters of public international law are according in fact a recognition to extra-territorial rights.
In the face of these repeated failures to devise a new name for this body of rules it would be well, prior to making an attempt for a new definition, to pause and to examine the requisites of a legal definition we are in search for.
The legal definition in question must not confuse the body of rules it strives to name with the definition of any existing other body of laws. It must not, further, trespass upon any of the established terms of the legal science by straining them or attributing to them a new and entirely unknown meaning. So much for its negative qualities. Its positive qualities should include shortness and an indication of some distinctive legal characteristic inherent in those
rules and wholly absent or at least not specifically distinguishable in any other branch of Jurisprudence. It would be easily observed that up to the present time every jurist in attempting to devise a nomenclature for our body of rules has dwelled on a contrast between different systems of laws (conflict of laws) or upon the collision between various jurisdictions (international private law, intermunicipal law). True, this is an important feature of this body of rules. However, no definition of any branch of law is all-embracing. Both real and personal property laws include a number of legal conceptions which are both real and personal or quasireal and quasi-personal. Public international law includes prize law, which brings before a national tribunal a private individual on a dispute involving his private property. Penal laws, despite their public nature, comprise proceedings by private injured parties or informants and so on. So that if this contrarious effect of the body of rules in question is only one of its characteristics, it may well be left alone, for evidently all attempts to define these rules on the basis of such characteristic proved themselves completely barren.
However, we doubt if the rules in question have such contrarious or opposite effects at all. The matter in our opinion has been sufficiently disposed off above when the corresponding definitions were discussed.
There remains something to be said of the "extra-territorial recognition of rights" This characteristic, if a characteristic at all, the body of the rules under examination must needs share with public international law. For when the courts discuss a status of a foreign ambassador, or a foreign consul, or a foreign vessel, they also consider the effects of extra-territorial rights of a foreign sovereign. True, that in the case of international public law the jurisdiction of the local court is terminated through the effect of extraterritorial rights, while in the case of international private law this jurisdiction is extended and the effect of foreign law is considered by the local court. However, even in the latter instance, the local court need not always administer foreign law since by the operation of the doctrine of rereference renvoi) it may find itself applying its own local law. So that the extra territorial nature of these rules is not so exclusive as to claim part in the requisite definition.
It is clear that the branch of law in question is a part of national law of each and every sovereign state as contradistinguished from the international law of such state. We have grown to understand the term "national" law in this sense and not in the sense of "public" law alone as Professor Harrison (On Jurisprudence and the Conflict of Laws p. 131) insists it implies. The Roman law might have viewed these two terms as similar, but there is no confusion on the point in a mind of a modern jurist. Professor Harrison's use of the term "municipal" in a Roman law sense lead him to adopt his definition, which might have been, indeed, a correct one in Rome. Our modern system of law knows of a special branch of administrative or police law concerned with municipal or city rights and duties, and makes the introduction of otherwise admirably well chosen definition entirely confusing and impractical.
Yet, this branch of law does own a distinctive characteristic not possessed by any other body of rules. As early as 1837 Rocco (Dell uso e autorita delle leggi del Regno delle Due Sicilie considerate nelle relazioni con le persone e col territorio degli Stranieri pp. 120, 253) spoke of this branch of law as "Mutua compiacenza".
"States," says Sir Robert Phillimore (Commentaries upon International Law (1889) Vol. IV. p. 4) . . . . have tacitly agreed to recognize and adopt certain common rules and maxims of jurisprudence both civil and criminal, with respect to individual foreigners sojourning within their ter
ritory, and with respect to the operation therein of the laws of foreign state."
Professor Harrison (On Jurisprudence and the Conflict of Laws (1919) p. 147) said in 1878 "If it be, as I think, idle to dream of an Intermunicipal Code common to all civilized nations, even such an one as we might fairly anticipate for International Law, still the tendency of municipal systems to converge on this ground common to them all is very largely seen as a fact, and may be indefinitely increased."
Professor Holland (Elements of Jurisprudence 10 ed. p. 409) declares that "the state in making that law is guided not by law, but by an expectation of reciprocity, or by general considerations of equity."
Professor Dicey (Conflict of Laws (1900) p. 12) "This likeness is increased by the fact that the object aimed at by the courts of different countries in the adoption of as to the extra-territorial effect of law is everywhere in substance one and the same . . . . . . This community of the aim, pursued by the Courts and Legislatures of different countries, lies at the very foundation of our subject. It is of itself almost enough to explain the great similarity between the rules as to the choice of law adopted by different countries."
F. C. Von Savigny (A Treatise on the Conflict of Laws, W. Guthrie's ed. (1869) p. 27) speaking of the increased intercourse between the different nations says: "This has resulted from that reciprocity in dealing with cases which is so desirable, and the consequent equality in judging between natives and foreigners, which, on the whole, is dictated by the common interest of nations and individuals. For it is the necessary consequence of this equality, in its full development, not only that in each particular state the foreigner is not postponed to the native (in which equality in the treatment of persons consists) but also that in cases of conflict of laws, the same legal relations have to expect the same decision, whether the judgment be pronounced in this state or in that."
F. Wharton (A Treatise on the Conflict of Laws (1872) p. 32) says: "Persons . . . can only claim to be invested with the law of such domicil, to the extent to which it is consistent with the common law of Christendom, which is the basis of private international law."
Rodenburg puts it thiswise: "Quid igitur rei in causa est, quod personalia statuta territorium egrediantur. Unicum hoc ipsa rei natura ac necessitas invexit, ut cum de statu et conditione hominum quaeritur uni solum modo judici, et quidem domicilii, universum in illa jus sit attributum." (Rodenb. de Stat. Diversit. tit 1, c. 3 par. 4: Bullenois App. p. 8).
Bouhier seems to be of the same opinion: "On peut donc dire, que cette extension est sur une espece de droit des gens, et de bienseance, en virtu duquel les differens peuples sons tacitement demeures d'accord, de souffrir cette extension de coutume a coutume, toutes les fois que l'equite et l'utilite commune le demanderoient" (Cout. de Bourg. ch. 23, Par. 63 p. 467).
Judge Story commenting on the above two citations. says (Commentaries on the Conflict of Laws (3d ed.) p. 46) "The very terms, in which its doctrine is commonly enumerated, carry along with them this necessary qualification and limitation of it. Mutual utility presupposes, that the interest of all nations is consulted, and not that of one only."
Von Bar affirms that "It can be demonstrated that there is to certain extent a real communis consensus of Civilized States, a true law of custom . . ... We cannot admit the objection, therefore that there can be no such thing as a general law of custom, with reference to the rules of private