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Applied for second class mail priviledges at Post Office in New York, N. Y., under the Act of Congress, March 3, 1879.

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[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

its staff of international experts.
2. To provide in the United States advice and expert witnesses

on the law of any foreign country.
3. To undertake through its associate law firms abroad legal busi-

ness on behalf of American concerns in every important

city of the world.
4. To effect registration of copyright, patents and trade marks in

every country protecting these rights.

As an illustration of the effectiveness of its organization the
Bureau announces that it has associated with it in New York at-
torneys of Argentina, Austria, Brazil, Canada, Chile, China, Co-
lombia, Costa Rica, Cuba, Czechoslovakia, Denmark, Ecuador,
England, France, Germany, Greece, Guatemala, Haiti, Honduras,
Hungary, Ireland, Italy, Japan, Jugoslavia, Lithuania, Mexico,
Norway, Peru, Portugal, Russia, Salvador, Scotland, Siam, Spain,
Sweden, Switzerland, Turkey and Venezuela.

And, besides, over two hundred associate law firms
in Africa, Asia, Australia, Europe and

South America.


DECIS 1999

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No private pursuit in any field of commerce tempt to serve as a practical source of informacan be safely undertaken today without full tion for all business firms and organizations assurance of adequate legal service competent interested in foreign trade. to protect and support all the diverse trans

France and Germany have long sponsored actions associated with modern trade.

and supported similar publications. Their peMore than ever is this statement true of riodicals helped French and German merchants the foreign trade where Americans undertake to profit by the latest information as to the legal public works, or the sale and purchase of mer

status of their business abroad. The legal dischandise, under circumstances that bring their cussion carried on the pages of these publicafortunes within the jurisdiction of foreign tions clarified many disputed points in the courts or make them subject to the foreign law. practice and theory of foreign trade laws. As

The overseas commerce of the United a result, instead of groping in the dark, a way States has ceased to be a subsidiary of the do- was open for a certain and intelligent manner mestic trade. One result of the World War is of starting and extending the overseas enterabsolutely clear - the United States has be- prises of their native lands. come a great world nation with a voice in the

The editorial staff of the Journal of Conafuture destinies of the globe, and with a firm

tional Law is firmly convinced that it is high footing in the world market.

time for the English speaking world to have a To keep in touch with the flood of changes journal of its own dealing with foreign law in laws and regulations resulting from the matters. And in undertaking this task, our World War and to provide a medium for a dis- staff is proud to accept all the hardships of cussion of the legal problems connected with pioneering. These hardships it hopes to overthe foreign trade, is the aim of the present pub- come with the aid and good will of all those lication. Our journal would not only aim to who have at heart the interests and the destimulate the study of international private law velopment of the foreign trade of their home among American lawyers, but would also at- states.

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WHY A NEW NAME? with that use of word "international”, which besides being

well established in ordinary language is both scientifically The selection of a proper nomenclature for the branch

convenient and etymologically correct "a private species of of law commonly known as “Conflict of Laws" or "Interna

the body of rules which prevails between one nation and tional Private Law” is not a new subject for discussion

another”. Nothing of this sort is, however, intended and amongst the jurists. The very fact of its continual recur

the unfortunate employment of the phrase, as indicating the rence shows conclusively that the present state of affairs is not a happy one, that a definite solution must be found and principles which govern the choice of the system of private

law applicable to a given class of facts, has led to endless that such final settlement of the matter in question is a necessity not to be minimized or laid aside as unimportant. misconception of the true nature of this department of On the other hand, no period in the history of international

Mr. A. V. Dicey aptly adds ("The Conflict of Laws" intercourse of private individuals and the expansion of their 1908, p. 14) that “It confounds two classes of rules which activities throughout the world was as ominous for the grow

are generally different from each other. The principles of ing magnitude and the importance of the body of legal rules concerned with these relations, as the years that will pass tional” because they prevail between or among nations; but

international law, properly so called, are truly “internaafter the Great World War of 1914-1919.

they are not in the proper sense of the term “laws” for they The sphere of state relationship is on the threshold of

are not commands proceeding from any sovereign. On the very important changes. We may finally have a system of other hand, the principles of private international law are rules whose right to be called strictly “laws” no one could “laws” in the strictest sense of that term, for they are comdispute, instead of what John Austin termed "international mands proceeding from the sovereign of a given state .. morality”. From two entirely different quarters attempts such ambiguity of language, unless fully acknowledged, must are being made to regulate the relationship of states by lead as it has lead, to confusion of thought.” setting up a supreme state authority. One is the plan es

Moreover, this definition is supposed to cover also tablishing the League of Nations--another an attempt to criminal law which is not "private” law, but a part of public set up a Labor International ruling the proletarian states national law. throughout the earth. Either, if succeeds, if not at once,

Less common are the following expressions: "comity”, then in not a very distant future, will result in the introduc- “intermunicipal law”, “polarized law”. “Thus the term tion of a new body of administrative rules and practices "comity” (A. V. Dicey, ibidem, p. 15) is open to charge of that will supersede the present public international law. But implying that a judge when he applies foreign law to a parthe same state of affairs that will affect, probably injuri- ticular case does so as a matter of caprice or favor .... ously, the public international law, by bringing closer com- The application of foreign law (ibidem p. 10) is not a matmercial and cultural relations between the citizens of vari- ter of caprice or option; it does not arise from the desire of ous states, will entail a new and a more glorious era in the the sovereign of England, or any other sovereign to show growth and expansion of the body of rules known as interna- courtesy to other states. It flows from the impossibility of tional private law.

otherwise determining whole classes of cases without gross Facing this development, the latter branch of law stands inconvenience and injustice to litigants, whether natives or saddled with a name or names both antiquated and wholly foreigners." inappropriate. They either raise a conception entirely ad- "The Intermunicipal Law" suggested by Mr. F. Harriverse to the real effect of the legal rules supposed to be son (On Jurisprudence and the Conflict of Laws (1919) p. explained by these names or made an entirely independent 131) as T. E. Holland remarked (Elements of Jurisprudence branch of law an appendage of a body of rules, whose very (10 ed.) p. 410) "is surely no improvement, since "municistatus in the legal systems is a matter of grave dispute and pal” in accordance with established use, is either equivalent whose very existence is threatened by the course of political to "national" or relates to civic organization.” events to which we have alluded above.

“Polarized law” is a modern attempt to give a name to It would be well, before proceeding to offer any new this branch of law (See T. Baty's "Polarized Law" (1914 suggestions, to briefly review the main names suggested and Preface at p. VI). No matter what may be said of this name used for the international private law. Let us commence it is wholly fanciful and has no legal conception whatever with the term well known to Anglo-American jurists—“The for its basis. Conflict of Laws". The objections to it are well summed up E. T. Holland's definitions of "the extra-territorial by A. V. Dicey ("A Digest of the Law of England with refer- effect of law” and “the extra-territorial recognition ence to the conflict of laws” 1908 p. 13):

of rights" as Professor Dicey (Conflict of Laws (1908) “The defect, however, of the name is that the supposed p. 15) pointed out “are descriptions, not “conflict” is fictitious and never really takes place ... Besides, these descriptions are hardly correct without addiThe term "conflict of laws” has been defended on the ground tion of the words "civil and criminal” before “law" or of its applicability not to any collision between the laws "rights”. The courts in adjudicating on many matters of themselves, but to a conflict in the mind of a judge on a public international law are according in fact a recognition to question which of two systems of law should govern a given extra-territorial rights. case. This suggestion gives, however, a forced and new In the face of these repeated failures to devise a new sense to a received expression. It also amounts simply to a name for this body of rules it would be well, prior to makplea that the term "conflict of laws” may be used as an ing an attempt for a new definition, to pause and to examine inaccurate equivalent for the far less objectionable phrase the requisites of a legal definition we are in search for. “choice of law”.

The legal definition in question must not confuse the The next most common name applied to the body of rules it strives to name with the definition of any body of legal rules here under discussion is that of "Pri- existing other body of laws. It must not, further, trespass vate International Law” or “International Private Law” upon any of the established terms of the legal science by (L. V. Bar's Theory & Practice of International Private Law straining them or attributing to them a new and entirely un2nd. d. p. p. 7, 8).

known meaning. So much for its negative qualities. Its “Such a phrase would mean (T. E. Holland "The Ele- positive qualities should include shortness and an indication ments of Jurisprudence” (10th ed. p. 401) in accordance of some distinctive legal characteristic inherent in those

rules and wholly absent or at least not specifically disting- ritory, alid with respect to the operation therein of the laws uishable in any other branch of Jurisprudence. It would be of foreign state.” easily observed that up to the present time every jurist in Professor Harrison (On Jurisprudence and the Conflict attempting to devise a nomenclature for our body of rules of Laws (1919) p. 147) said in 1878 "If it be, as I think, has dwelled on a contrast between different systems of laws idle to dream of an Intermunicipal Code common to all ci(conflict of laws) or upon the collision between various juris- vilized nations, even such an one as we might fairly anticidictions (international private law, intermunicipal law). pate for International Law, still the tendency of municipal True, this is an important feature of this body of rules. systems to converge on this ground common to them all is However, no definition of any branch of law is all-embracing: very largely seen as a fact, and may be indefinitely inBoth real and personal property laws include a number of creased." legal conceptions which are both real and personal or quasi- Professor Holland (Elements of Jurisprudence 10 ed. real and quasi-personal. Public international law includes

p. 409) declares that “the state in making that law is guided prize law, which brings before a national tribunal a private not by law, but by an expectation of reciprocity, or by genindividual on a dispute involving his private property. Penal eral considerations of equity.” laws, despite their public nature, comprise proceedings by Professor Dicey (Conflict of Laws (1900) p. 12) “This private injured parties or informants and so on. So that if

likeness is increased by the fact that the object aimed at this contrarious effect of the body of rules in question is only by the courts of different countries in the adoption of rules one of its characteristics, it may well be left alone, for

as to the extra-territorial effect of law is everywhere in subevidently all attempts to define these rules on the basis of

stance one and the same . . . . . . This community of the such characteristic proved themselves completely barren.

aim, pursued by the Courts and Legislatures of different However, we doubt if the rules in question have such countries, lies at the very foundation of our subject. It is contrarious or opposite effects at all. The matter in our of itself almost enough to explain the great similarity, beopinion has been sufficiently disposed off above when the tween the rules as to the choice of law adopted by different corresponding definitions were discussed.

countries." There remains something to be said of the "extra-terri- F. C. Von Savigny (A Treatise on the Conflict of Laws, torial recognition of rights" This characteristic, if a char- W. Guthrie's ed. (1869) p. 27) speaking of the increased inacteristic at all, the body of the rules under examination tercourse between the different nations says: “This has remust needs share with public international law. For when sulted from that reciprocity in dealing with cases which is the courts discuss a status of a foreign ambassador, or a for- so desirable, and the consequent equality in judging beeign consul, or a foreign vessel, they also consider the ef- tween natives and foreigners, which, on the whole, is dictated fects of extra-territorial rights of a foreign sovereign. True, by the common interest of nations and individuals. For it that in the case of international public law the jurisdiction is the necessary consequence of this equality, in its full deof the local court is terminated through the effect of extra- velopment, not only that in each particular state the forterritorial rights, while in the case of international private eigner is not postponed to the native (in which equality in law this jurisdiction is extended and the effect of foreign the treatment of persons consists) but also that in cases law is considered by the local court. However, even in the of conflict of laws, the same legal relations have to expect latter instance, the local court need not always administer the same decision, whether the judgment be pronounced in foreign law since by the operation of the doctrine of re- this state or in that." reference( renvoi) it may find itself applying its own local F. Wharton (A Treatise on the Conflict of Laws (1872) law. So that the extra territorial nature of these rules is

p. 32) says: “Persons .... can only claim to be innot so exclusive as to claim part in the requisite definition. vested with the law of such domicil, to the extent to which It is clear that the branch of law in question is a part

it is consistent with the common law of Christendom, which of national law of each and every sovereign state as con

is the basis of private international law.” tradistinguished from the international law of such state.

Rodenburg puts it thiswise: "Quid igitur rei in causa We have grown to understand the term “national” law in est, quod personalia statuta territorium egrediantur. Unicum this sense and not in the sense of “public” law alone as hoc ipsa rei natura ac necessitas invexit, ut cum de statu et Professor Harrison (On Jurisprudence and the Conflict of conditione hominum quaeritur uni solum modo judici, et Laws p. 131) insists it implies. The Roman law might have quidem domicilii, universum in illa jus sit attributum.” viewed these two terms as similar, but there is no confusion (Rodenb. de Stat. Diversit. tit 1, c. 3 par. 4: Bullenois App. on the point in a mind of a modern jurist. Professor Harrison's use of the term “municipal” in a Roman law sense Bouhier seems to be of the same opinion: “On peut lead him to adopt his definition, which might have been, in- donc dire, que cette extension est sur une espece de droit des deed, a correct one in Rome. Our modern system of law gens, et de bienseance, en virtu duquel les differens peuples knows of a special branch of administrative or police law

sons tacitement demeures d'accord, de souffrir cette extenconcerned with municipal or city rights and duties, and sion de coutume a coutume, toutes les fois que l'equite et makes the introduction of otherwise admirably well chosen l'utilite commune le demanderoient” (Cout. de Bourg. ch. definition entirely confusing and impractical.

23, Par. 63 p. 467). Yet, this branch of law does own a distinctive charac

Judge Story commenting on the above two citations teristic not possessed by any other body of rules. As early says (Commentaries on the Conflict of Laws (3d ed.) p. 46) as 1837 Rocco (Dell uso e autorita delle leggi del Regno “The very terms, in which its doctrine is commoniy enumerdelle Due Sicilie considerate nelle relazioni con le persone ated, carry along with them this necessary qualification and e col territorio degli Stranieri pp. 120, 253) spoke of this limitation of it. Mutual utility presupposes, that the interbranch of law as "Mutua compiacenza”.

est of all nations is consulted, and not that of one only.” "States,” says Sir Robert Phillimore (Commentaries Von Bar affirms that "It can be demonstrated that there upon International Law (1889) Vol. IV. p. 4).... have is to certain extent a real communis consensus of Civilized tacitly agreed to recognize and adopt certain common rules States, a true law of custom .. ... We cannot admit the and maxims of jurisprudence both civil and criminal, with objection, therefore that there can be no such thing as a respect to individual foreigners sojourning within their ter- general law of custom, with reference to the rules of private

p. 8).

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