CASES ON THE CONFLICT

OF LAWS

CHAPTER I

NATURE OF THE SUBJECT

EXTRACTS FROM DICEY'S CONFLICT OF LAWS (3d Ed. 1922) pp. 1-3, 6-10: "Most of the cases which occupy an English court are in every respect of a purely English character; the parties are Englishmen, and the cause of action arises wholly in England as where A, a London tradesman, sues X, a citizen of London, for the price of goods sold and delivered in London. When this is so, every act done, or alleged to be done by either of the parties clearly depends for its legal character on the ordinary rules of English law.

"Cases, however, frequently come before our courts which contain some foreign element; the parties, one or both of them, may be of foreign nationality, as where an Italian sues a Frenchman for the price of goods sold and delivered at Liverpool; the cause of action, or ground of defence, may depend upon transactions taking place wholly or in part in a foreign country, as where A sues X for an assault at Paris, or on a contract made in France and broken in England, or where X pleads in his defence a discharge under the French bankruptcy law; the transactions lastly in question, though taking place wholly in England, may in some way have reference to the law or customs of a foreign country; this is so, for instance, when A wishes to enforce the trusts of a marriage settlement executed in England, but which on the face of it, or by implication, refers to French or Italian law.

"Whenever a case containing any foreign element calls for decision, the judge before whom it is tried must, either expressly or tacitly, find an answer to at least two preliminary questions.

"First Question.-Is the case before him one which any English court has, according to the law of England, a right to determine?

"The primary business of English tribunals is to adjudicate on transactions taking place in England between Englishmen, or at any rate between persons resident in England, or briefly, to decide English disputes. There clearly may be matters taking place in a foreign country, or between foreigners, with which no English court has, according to LOB.C.L. (2D ED.)-1

the law of England, any concern whatever; thus no division of the High Court, and a fortiori no other English tribunal, will entertain an action for the recovery of land in any other country than England. When, therefore, a case coming before an English judge contains a foreign element, he must tacitly or expressly determine whether it is one on which he has a right to adjudicate. This first question is a question of jurisdiction (forum).

"Second Question.-What (assuming the question of jurisdiction to be answered affirmatively) is the body of law with reference to which the rights of the parties are according to the principles of the law of England to be determined?

"Is the judge, that is to say, to apply to the matter in dispute (e. g., the right of A to obtain damages from X for an assault at Paris) the ordinary rules of English law applicable to like transactions taking place between Englishmen in England, or must he, because of the 'foreign element' in the case, apply to its decision the rules of some foreign law, e. g., the provisions of French law as to assaults?

"This second question is an inquiry not as to jurisdiction, but as to the choice of law (lex)."

[The two foregoing questions always require an answer whenever a case contains any foreign element. It is possible that the judge may be called upon to answer a third question, which, however, arises only where one of the parties bases his claim, or defence, upon the decision of a foreign court, or, in technical language, upon a foreign judgment. [The question which then arises and forms the third possible preliminary inquiry may be thus stated: Is the case one with which, according to the principles upheld by English courts, the foreign court delivering the judgment had a right to deal?

[This again is a question of jurisdiction.]

"Each of these inquiries, be it noted, must be answered by any judge, English or foreign, in accordance with definite principles, and, by an English judge, sitting in an English court, in accordance with principles or rules to be found in the law of England. These rules make up that department of English law which deals with the conflict of laws, and may be provisionally described as principles of the law of England, governing the extra-territorial operation of law or recognition of rights. *

"The term 'law of a given country,' e. g., law of England, or law of France, is an expression which, under different forms, necessarily recurs again and again in every treatise on private international law. It is further an expression which appears to be perfectly intelligible, and therefore not to demand any explanation. Yet, like many other current phrases, it is ambiguous. For the term 'law of a given country' has, at least two meanings. It may mean, and this is its most proper sense, every rule enforced by the courts of that country. It may mean, on the other hand, and this is a very usual sense, that part of the rules enforced

by the courts of a given country, which makes up the 'local' or 'territorial' law of a country. To express the same thing in a different form, the term 'law of a country' may be used as either including the rules for the choice of law, or as excluding such rules and including only those rules or laws which, as they refer to transactions taking place among the inhabitants of a country within the limits thereof, are here called local or territorial law.

"This ambiguity may be best understood by following out its application to the expression 'law of England.'

"The term 'law of England' may, on the one hand, mean every rule or maxim enforced or recognized by the English courts including the rules or directions followed by English judges as to the limits of jurisdiction and as to the choice of law. This is the sense in which the expression is used in the absolutely true statement that 'every case which comes before an English court must be decided in accordance with the law of England? The term 'law of England' may, on the other hand, mean, not the whole of the law of England, but the local or territorial law of England, excluding the rules or directions followed by English judges as to the limits of jurisdiction and as to the choice of law. This is the sense in which the expression is used in the also absolutely true statements that 'the validity of a will executed in England by a Frenchman domiciled in France is determined by English judges not in accordance with the law of England but in accordance with the law of France,' or that 'a will of freehold lands in England, though executed by a foreigner abroad, will not be valid unless executed in conformity with the law of England,' i. e., with the provisions of the Wills Act, 1837.

"Hence the assertion that 'while all cases which come for decision before an English court must be decided in accordance with the law of England, yet many such cases are, and must be, decided in accordance, not with the law of England, but with the law of a foreign country, e. g., France,' though it sounds paradoxical, or self-contradictory, is strictly true. The apparent contradiction is removed when we observe that in the two parts of the foregoing statement the term law of England is used in two different senses: In the earlier portion it means the whole law of England; in the latter it means the territorial law of England. This ambiguity is made plain to any one who weighs the meaning of the well-known dictum of Lord Stowell with regard to the law regulating the validity of a marriage celebrated in a foreign country. The question, it is therein laid down, 'being entertained in an English court, it must be adjudicated according to the principles of English law, applicable to such a case. But the only principle applicable to such a case by the laws of England is, that the validity of Miss Gordon's marriage rights must be tried with reference to the law of the country, where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland.'