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WAS PRESENTED: Master of Laws 


Permission is hereby granted to THE UNIVERSITY OF ALBERTA 
LIBRARY to reproduce single copies of this thesis and to lend 
or sell such copies for private, scholarly or scientific 
research purposes only. 

The author reserves other publication rights, and neither 
the thesis nor extensive extracts from it may be printed or 

otherwise reproduced without the author's written permission. 

14 . ak SAONTUA 30. 4AM 

iT MOLMe AG Daa 
ITHAesay 2A 

AAG 299390 Ciy. BS 







SPRING 1973 


The undersigned certify that they have read, and 
recommend to the Faculty of Graduate Studies and Research, 
for acceptance, a theses entitled The Influence of the Party 
Autonomy Principle on the Choice of Law Process, submitted 
by HANS PETER FRICK in partial fulfillment of the requirements 

for the degree of Master of Laws. 

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voc! TUSVUN TT oeh y 3 GU ati wi yi ‘ “ J 

r ee ee ee — Pe ‘ : . n of contracts, taking inte nt the setere of the Sigh) ee 

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Panty autonomy is a leading principle in the private 
international law of contractual obligations. This principle has long 
been recognized by Canadian courts. Practical and economical reasons 
have proven that advantages offered by the ‘party autonomy’ principle 
contribute clearly to the achievement of security, certainty and true 

justice in the conflict of laws. 

The main problems dealt with in this thesis are the 
logical bases of this principle, its influence not only on the law 

of obligation, but also on other domains of the conflict of laws. 

The 'party autonomy’ principle which substitutes the 
objective criteria of connection by a subjective express choice of the 
applicable law, can only influence a choice of law process regarding 
legal relations with a concern of the parties as individuals. A strong 
personal interest therefore, can be found in the law of contracts, the 

law of torts and the law of matrimonial relations. 

This thesis calls for an open-minded application of the 
‘party autonomy’ principle and attempts to expand its application beyond 
the law of contracts, taking into account the nature of the legal re- 

lations and the inherent dangers in applying it. 

'Man cannot discover new oceans unless he has the courage to lose 

sight of the shore.' 
Andie Gide 



To Professor Peter J. M. Lown, of the Faculty of Law, 
University of Alberta, I am greatly indebted for his inexhaustible sug- 

gestions both in research and liguistic matters. 

I would like to express my gratitude to Professor David 
R. Percy, Director of Graduate Studies at the Faculty of Law, University 
of Alberta for his encouragement and his provident advices, to the 
library staff, to the graduate students and to the students of the 
Faculty of Law, especially to those members of Student Legal Services 
1972/73 and James C. Robb, their chairman, for their pertinent and suit- 
able allusions. My warmest thanks are to Linda Frances Duncan who showed 
so much forbearing understanding for the late night's work. Thanks also 
to Anthony J. Spence, Roger H. Davies and Christopher J. Wilson, who, 
despite the fact that they delayed my work for months by dragging me to 

the Strathcona Hotel, proved to be a steady source of inspiration. 

I would also like to thank my brother, Dr. iur. Rudolf 
Frick, who so kindly supplied me with information and material I could 

not find the the Law Library. 

Finally, I am deeply obliged to Mr. A. Steinbrecher, 
partner in the firm of Eugene Olekshy & Partners, Architects, Edmonton, 
who I disturbed during his busy office hours and to his efficient 
secretary, Mrs. C. Willigar, to whom I express my grateful thanks for 

arranging and rendering my script legible. 


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etiae Eat Lo OF eC aN tic Net iS 

I. The Liberal Conception of a System of Law 
1. Origin of the Liberal Conception 
2. Development of the Liberal Conception 
3. Consequences 
Il. Private Autonomy 
III. Footnotes 

I. The Meaning of Autonomy in Private International 
1. The Origin of Autonomy in Private Inter- 
national Law 
2. The Incorporation of Foreign Law 
3. Party Autonomy in Private International Law 
II. Logical Requirements of Party Autonomy 
1. Practical Reasoning for the Necessity of 
Party Autonomy 
2. The lex fori as a Basis, Permitting the 
Parties to Choose the Applicable Law 
III. Limited or Unlimited Autonomy 
1. Autonomy and Internally Imperative Rules 
2. Limited or Unlimited Choice of Law by the 
IV. Footnotes 


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First Subtitle: CONTRACTS 





The Proper Law and the Autonomy Theory 
1. The Proper Law Theory 
A. Origin and Development in England 
B. Nonacceptance of the Principle in the 
United States 
C. The Present Day Tendency 
The Autonomy Theory 
Connections Between the Proper Law Theory and 
the Autonomy Theory 
General Acceptance of the Principle of Express 
Choice of Law by the Parties 
Limitations on the Principle of Express Choice of 
1. Immanent Restrictions 
2. General Clauses 
3. The American Doctrine 

Second Subtitle: TORTS 


Unsatisfactory Solution of the Governing Principles 
1. The Crisis of the 'lex loci delecti commissi' 
A. The Place of Wrong as the Place of Injury 
B. The Place of Wrong as the Place of Acting 
C. Concurrence and Alternative Application 
of the Laws of the Place of Acting and of 
the Place of Injury 
D. Inferences 
a. une Crisis of)the “lex fora: 
A. Basics and Origin of the 'lex fori' 
B. Reasons in Favour of the Application of the 
"lex fori' 










C. Reasons Against the Application of the 'lex 
3. The Double Rule 
II. The Proper Law of the Tort 
1. The New Approach 
2. Justification for the Search for a More 
Flexible Rule 
A. Advantage of the Proper Law of the Tort 
B. Disadvantages of the Proper Law of the Tort 
C. Conclusion 
3. Consequences 
A. Common Domicile and Common Residence of 
the Parties Involved as a Choice of Law 
B. Torts in Connection with Contractual Duties: 
The ‘Proper Law of the Contract' Applies. 
C. Express Choice of the Proper Law of the Tort 
by the Parties 
(a) Reasons for Approval of the Possibility 
of Applying the Law Chosen by the 
(b) Reasons for Rejecting the Possibility 
of Applying the Law Chosen by the 
(c) Conclusion 
III. Summary and Conclusion 
IV. Footnotes 

I. The Nature of the Matrimonial Relationship 
II. The Problem of the Governing Rules 
1. Marriage 
A. Capacity 
(a) The 'Antenuptial Domicile' Theory 
(b) The ‘Intended Matrimonial Home! Theory 









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(c) Inferences 
B. Formalities 
58 Inferences 
2. Matrimonial Causes 
A. Divorce and Judicial Separation 
(a) Divorce Proceedings 
(i) ‘lex fori or 'lex domicilii' ap- 
plied by the Courts? 
(ii) The Divorce Act 1968 and Foreign 
(b) Judicial Separation 
Annulment of Marriage 
Recognition of Foreign Decrees 
(a) Divorce Decrees 
(b) Annulment of Marriage 
D. Inferences 
III. Conclusions 
IV. Footnotes 











Cin matte a Gear ONE 


This first chapter attempts to deal with autonomy in private 
law as an outflow of the ideas of freedom, which characterize our system 
of law. From this conception of freedom, the foundation of our system 
of law, the idea of autonomy in general and especially the idea of 
private autonomy and party autonomy has to be derived and these ideas 

have to be justified. 

This object will be attained by way of looking at the origin 
of these liberal ideas. Then, the development of these ideas of freedom 
will lead to the concept of private autonomy and party autonomy as con- 
sequences originating from the liberal concept of the system of law. 
Private autonomy will be dealt with in this chapter, while the second 

chapter will be devoted to party autonomy. 

The idea of law is an all embracing concept covering the 
most different aspects of law and influencing all its issues, and the 
description of this concept would cover a thesis in itself. It cannot, 
therefore, be the goal of this introductory chapter to give an abundant 

conspectus of these ideas. 

I. The Liberal Conception of a System of Law 
Our system of law, private law as well as public law, is 

based on a liberal idea, ! 

This concept includes the natural liberty of 
man, which permits his ethical development, the possibility of estab- 
lishing a sphere within which the individual can act and, thereby 
through his own freewill, establish and form his relations according to 

his own desires. These ideas, the liberal concept in other words, are 

the basic value of a system of law.@ 

This liberty however, is not comprehensive. There is a 
need for order within a society of man, an order both for the sake of 
society and of the individual, and for present purposes this will be 
accepted as a matter of fact.3 The idea of the natural liberty of man- 
kind, on the one hand, and the necessity of order, on the other hand, 

has been realized in our system of law in an ideal manner .4 

Le Origin of the Liberal Conception 

The well known Roman law system's LIBERTAS seemed to be 
based on a Greek model developed by Aristotle.° In the Roman law, 
liberty® became one of the principles on which the whole system was 
based. ? LIBERTAS was one of the most praised and defended privileges’ 
This new philosophy affected the spectrum of mankind, creating an 
independence at least for the LIBERI. In this vein man was to be free, 
he was to be master of his own fate and, for his personality's sake, he 
was to have a sphere within which to act and to create legal relations; 

and this sphere was to be his own. 

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In the beginning of the first millenium, the feudal system 
narrowed down all these liberties. Man became dependent upon the 
nobility and the ecclesiastics who were a very small number compared 
with the common people. Only the nobility, the high dignitaries of 
the church and some particular free-born men enjoyed some basic rights. 
The renaissance, however, returned to the old Greek and Roman idea of 
LIBERTAS and together with the reformation, the social and the com- 
mercial revolutions re-established the human being as the focus of all 
thought and acting. The Arts, the septem artes Liberales, influenced 
both the scholar and the judge persuading them to reconsider the Roman 

law and receive those ancient ideas and institutions. 

These freedoms. could only be properly recognized in a 
liberal system of law. It took a reverse of the trend during the 

period of absolutism to open the door finally to liberalism. 

A: Development of the Liberal Conception 

Anglo-American and European liberalism adopted this 
philosophy and substituted it for the feudal law system. First of all, 
however, it would appear that the MAGNA CARTA of 12152 could be con- 
sidered as the cornerstone of the English liberties, despite the fact, 
that the English King engaged himself only so far as to respect his 
subjects vested rights. The subsequent confirmations of the MAGNA 
CARTA usually referred to the grant by King Henry III in 1225 as Char- 

10 It was only in the 17th Century, during the fight 

ter of Liberties. 
against the absolutism of the Stuarts, that Parliament enacted the 

Petition of Right (1628) !! and the Bill of Rights (1689) !2 recognizing 

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basic rights of the citizens. In England, the basic rights of freedom 
were only negatively defined through Acts of Parliament, and the 

English constitutional law guarantees no basic rights of freedom.!? 

In the United States the original Ten Amendments (1791) 
guarantee liberty and rights to the American people. They were in- 
spired by stoical sources as well as by natural law and were closely 
connected to the English Bill of Rights. The statement at the head of 
the American Declaration of Independence 1776 recognized the existence 

of certain basic rights as well. 14 

During the French Revolution the modern political idea of free- 
dom was developed, namely the freedom within the state, guaranteed by 
that particular state. At the beginning of the 17th century, man be- 
came more and more conscious of these freedoms - called les droits de 
L'homme or the human rights. They were guaranteed in almost all con- 

stitutions. A new order of values was established. '” 

A human being was to be autonomous, he had to have a complete- 
ness of powers, and because these powers existed before ever a state 
and a social order came into existence, these powers were given to man 
in his own behalf. It was to be recognized by the law a priori. On 
this basis man could not be regarded as a tool in the hands of the state 
and the order, but government and law should subsist to guarantee these 

pre-existing freedoms. 

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Freedom, as it is generally used, has different aspects. 
It can be defined as to be free to do what one wants to do without any 
interference and to achieve the highest of the possible degrees of self- 


Negative freedom then is the absence of any constraint and 
restraint. A man is free to the extent that no one inconveniences his 
activity; that is, no one makes him to do what he does not want to do 
(absence of constraint) and no one prevents him from doing what he 
wants to do (absence of restraint or negative constraint). In that 
sense he is free to do what he wants. It is a laissez-faire freedom 

as well as a potential freedom, in that it is a freedom of choice. 

Positive freedom is a creative freedom, since it invokes 
the possibility of making the best out of what man can; in other 
words it is the concept of self-realization. There is a further dis- 
tinction in a positive freedom between internal positive freedom and 
external positive freedom. Internal positive freedom treats of the 
inside of the human being, that is, the condition of a mind and the 
character of a human being as a rational moral agent. This agent has 
to be free to achieve his best potential. External positive freedom 
is not the absence of constraint - positive or negative - as such, but 
external positive freedom is assured by a system of rights maintained 

by law and free society. 

Generally; negative freedom is the jungle of impulse of 
everyone-for-himself!6; positive freedom is the civilizing impulse of 

let's do-it-together,!7>18 

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19 0 

In the nineteenth century, writers'” and judges® regarded 

al The parties were free to 

freedom of contract as an end in itself. 
enter voluntarily into any sort of contract based on any conditions, 

introducing qualifications and exemptions for the liability and it was 
immaterial if one of the parties was in a stronger position to bargain 

than the other. The function of the law was to enforce such contracts. 

Teday freedom of contracts seems to be a myth when one 
party has no alternative between doing or living without the services 
or the goods offered, and accepting the terms set by the stronger 

party. 44 

It is obvious that a system of law based on an absolute 
freedom cannot exist. Social and co-operative existence necessitating 
the showing of consideration for your neighbour, demand that freedom 
has to be restrained.*? Viscount Simonds cites the famous sentence: 
"Amongst many other points of happiness and freedom which your 
Majesty's subjects have enjoyed, there is none which they have account- 
ed more dear and precious than this, to be guided and governed by cer- 
tain rules of law... .".24 

It will always be in the discretion of the law to set 
limits restraining these liberties, provided it is done for the bene- 
fit of freedom and especially to guarantee freedom. 

These disadvantages have been offset by many statutes2? 

which introduce certain terms into contracts which the parties cannot 

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exclude, or they impede introducing certain terms by declaring them 


In the historic view, it seems that the existence of these 
freedoms is the starting point, and the systems of law have been built 
to enclose these freedoms taking to account and honouring all their 
values, whatever they may be. Logically, it is for the law to give 

freedom to man by virtue of delegation.26 

34 Consequences 

The idea of responsible self-realization shows effects in 
almost every domain of law. The liberty of the person in regard to a 
personal development and to activities according to his aptitude and 
preferences is the first aspect to be mentioned here. Furthermore, 
everybody is able to enter into obligations of any content, to found 
co-operative relations, to be master over things, to dispose of and to 
decide who will be bearer of the rights he enjoyed. This conforms to 
the freedom of contract, the freedom to associate, the freedom of hav- 

ing property and the freedom of wills. 

This idea of freedom is reflected as private autonomy”! 

in internal municipal law and as party autonomy? in international 

private law. 

Autonomy in a legal sense means to demand and to have the 
right to legislate on behalf of yourself. Whereas in the earlier 

centuries only certain corporations and guilds and aristocrats were 

endowed with these rights, today they belong to every individual. Pri- 
vate autonomy is one of the primary decisive principles in our private 
law system; it is private autonomy which leads man to be the rational 
moral agent of his relations. Therefore, private autonomy is the prin- 
ciple of self-determining the legal relations by man through his own 

free will. 

Party autonomy is just as decisive a principle in private 
international law as private autonomy is in internal law. By 
means of party autonomy man becomes the rational moral agent for his 
relations on an international plane. The meaning of party autonomy 
is to uphold the decision of replacing the objective criteria of con- 
nections by an express conSensus of the parties, concerning the law ap- 

plicable to their relations. 

II. Private Autonomy 
Private autonomy is regarded as an effect of this liberal 
idea which dominates our system of law. It determines as a primary 

principle the character of our system. °? 

As a principle, the system of law does not infringe private 
autonomy, but on the other hand, private autonomy findsits range of 
application only there, where no rules of public law or rules with a 
public effect exist. But within these limits, everyone is permitted, 
not only to create his legal obligations according to his will, but 
also everyone enjoys moreover in his being and acting as a man, the 

natural freedom to do what he wants else! 

e hfer 

: , , a fo oe 7 - iad, ol . ou =/, 
o vel atfdug % 2ofut on sree aredd yin ng 
we toh ss ” ’ : ag hy wie - * : 
7 A, at 

But this power of free will and self-determination however, 
finds its limits also through the recognition by the law itself. There- 
fore, this power must be recognized as a value; the existence and recog- 
nition of this power of free will and self-determinism is a primary 

goal of our liberal concept. 

It is obvious that this freedom does not grant autonomy 
and that the individual cannot put into force his own codes genuinely.2¢ 
Society, not the individual, creates law; the individual can never 
be his own legislator, because he can never be his own judge in 
his own cause. Only legal relations which are part of a legal system 
as such can be formed by the individual. It is only the law that det- 
ermines form and content of the autonomous liberty to act. It is the 
law which gives the individual the capacity to form the legal relations 

by himself; based on this reasoning, private autonomy is a derivative 


The recognition of private autonomy by the law on the one 
hand and the setting of limits by the selfsame law on the other hand is 
the realization of the idea that the weaker individual is to be pro- 
tected.33 This protection can be achieved by restraining the dominant 
party's liberty, dominant as a fact of predominance and of psycholo- 
gical or intellectual advantage. But in this case, the protection of 
the one liberty is attained by limiting the other liberty, both of 
them are -regarding their value- at the same level and both of them 
need the same area to expand. It is not quite easy to answer the ques- 

tion at whose cost this protection will be reached. 

rv - 

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Fe, cwtivacorg , 6 ais at due) ayaa Cede oe 
, 7 an 7 ote eg" - .@ - os? 7 
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There is then an ambiguity. On the one hand the legal 
act based on the private autonomy principle cannot be qualified as law 
because the individual cannot create law by himself. On the other hand, 
the individual act must claim the qualification law to pass and to be 
recognized on the whole as law. This can only be solved by the pre- 
sumption that every act done within these limits fixed by the system 

of law would be recognized as law. 

The step from the municipal plane up to the international 
plane should be an easy one. The second chapter will treat the effects 

of the liberal concept of law on the conflict of jaws. 

ea Ls Footnotes to Chapter One 


The liberties in private law found their exposure in 
many ideas and institutions of public law, which formed 
the ideas of the liberal state. Though democracy as wel] 
as private law are based on the same principles, the 
principle of parity in the eyes of the law and the 
principle of freedom. 

Savigny, Private International Law, Guthrie's transla- 
tion 198, 209/210. 

Blackstone, Commentaries on the Laws of England, 125: 

"The absolute rights of man, considered as a free agent, 
endowed with discernment to know good from evil, and with 
power of choosing those measures which appear to him to 
be most desirable, are unusually summed up in one general 
appelation, and denomiated the natural liberty of man- 
kind. This natural liberty consists properly in a power 
of acting as one thinks fit, without any restraint or 
control, unless by the law of nature; being a right inher- 
ent in us by birth, and one of the gifts of God to man 

at his creation, when He endued him with the faculty of 
free will. But every man, when he enters into society 
gives up a part of his natural.liberty, as the price of 
SO valuabel a purchase; and, in consideration of receiv- 
ing the advantages of mutual commerce, obliges himself 

to conform to those laws, which the community has thought 
proper to establish. And this species of legal obedience 
and conformity is infinitely more desirable than that 
wild and savage liberty which is sacrificed to obtain 

Ligue Olaticaly therefore, or civil liberty, which 1s 
that of a member of society, is no other than natural 
liberty so far restrained by human law (and no farther) 
as iS necessary and expedient for the general advantage 
of the public." 

Infra 9 et Seq. 
Aristotle, Politica VI. 

Florentin, Digesta, (1.5) 4 pr: “Libertas est (naturalis) 
facultas eiusquod cuique facere libet, nisi si quod vi 

‘aut iure prohibetur." 

Schulz, Principles of Roman Law 140; Chase Greene, 
The Achievement of Rome 186. 

Cicero,ad Atticuwn XV 13.3: " libertate retinenda, 
qua certe nihil est dulcius"; and in Verren II V 9.23: 
".,..haec quae vel vita redimi recte possunt, aestimare 



an) “(at ya ox sotentoo? ae 7 

ayo 6 "beds have? wnt go nytt i spe biegte ‘OAT. x | 

barat doiew .we! otfdid to andéteod hl eit be Aes eyem 
a6 79S TOG ‘pa | ecé6t2 lead? | Lyk, ir Peskt aid 5 7 
his ee a rus Tee ty iQ baAbne ioe ft} atevlya es - 
; fo gave end nt esl iag Te ar prey 
msoaaty 70 alo Srrag 

aT nie wih ar? 

ry Nateten® Gat Seo Cees As iat” NatTy ee 5 — 
Ate Ae ke 2a; ary = 
j mh £24 Vneddoen yeti yoda td Po 7 
> Po) | f nM vik VE ' atulo ie i hg 
‘ ‘ 4 Aserpyeners «Ty awewas 
‘ 3 my. iy 4 (¥ Of rt) Swot] 
i it a OF? Bab] oc . 
7 ‘ a " { / P ,fMrr an) Boece 
~ Tint PATH 
: i ( — ah tery: | ee orn 
; ‘ oie, DU) 1 (5) 
~My) Word vt 20°ah 0We 
‘ ait i esi 2ML 
y ' i th. ae T 
| 15 frst egy Sty 
I } f° peut Siow § Ty ¢ £ ov te 
rent Tine ¥ pus: | * omy F 3 
; \ a0 i r a As 9} ™ 
> Yt (|deyfideias a em 
‘tral i ¥ aivei et whteroinad Gap 
. erwedh seaved le APP 
19S (SA fanret Tes... atl ' 
; yw? owiaesS “gclvgn G@ Mo dene 
ii vl baPaireesvel ez heel 
>it vo? tusfhegrey tot yroe2eoed 27 sa 


* of faye sat + | ae 
na erga oe , 

yu satis a ,91Tode han a. or 

(2fistmter) Jus widka” 2te & (é. 8) eee -abanaior’. = * 

uta neve f2 Tata .jod?l aege? —S speesire Phd rel . 
7 _—? 7 on : 


f A nies h Po - 7 4 7, neil a hgiet ; 
a! ee ae) ae eal 1 ie ideal = S bs em wy 







pecunia non queo." 
Diegesta Iustiniani (50.17) 106: "Libertas inaestimabilis 
res est." 

Statutes of the Realm, 1,107 (in Latin) 18 Edward 1. 

It is, actually, in all material respects, the same as 
John's Charter of 1215; see Jennings 11. 

Statutes of the Realm,v,23f; Charles I,c.2. 

Statutes of the Reabn,vi,142 ff.; I William & Mary, sess. 


See Liversidge v. Anderson [1942] A.C. 206 et seq. and 

The Alberta Bikl of Rights, assented to November 15, 

1972 Art. 1 It is hereby recognized and declared that in 
Alberta there exist, without discrimination 
by reason of race, national origin, colour, 
religion or sex, the following human rights 
and fundamental freedoms, namely: 

a) the right of the individual to liberty, se- 
curity of the person and enjoyment of pro- 
perty, and the right not to be deprived 
thereof except by due process of law; 

b) the right of the individual to equality be- 
fore the law and the protection of the law; 

" ..that all men are created equal, that they are en- 
dowed...with certain malienable Rights, that among these 
are life, liberty and the persuit of happiness." 

See 'La deckanration des droits de L'homme et du citoyen 
de 1789’. 

Supra n.3. 

MacGuigan, Civil Liberties in the Canadian Federation, 
(1966) 16 University of New Brunswick Law Journal 1,atd. 

See Milne, Freedoms and Rights, Franklin, Free will and 

Dicey, Law and Opinion, 150 et seq. 

Jessel M.R. in Printing and Numerical Registration Co. 
v. Sampson (1875) L.R. 19 Eq. 462; Lord Bromwell in 
Manchester, Sheffield and Lincolnshire v. Brown [1883] 
App. Cas. 703, 716-720; Salt v. Marquis of Northampton 
[1892] A.C. 1, 18/19. 

See Chitty on Contracts (22nd ed.). 


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Telephone services, electricity and power, air transport, 
railways, etc. 

In the United States it is a duty of the States to ensure 
the rights to make free contracts on the one hand and to 
set limitations for the community's and the State's 

sake on the other hand. 

Mr. Justice Field said in Crowley v. Christensen, 137 
U.S. 86 (1890) at pp. 89/90: "...the possession and en- 
joyment of all rights are subject to such reasonable 
conditions as may be deemed by the governing 

authority of the country as essential to the safety, 
health, peace, good order and morals of the community. 
Even liberty itself, the greatest of all rights, is not 
unrestricted license to act according to one's own will. 
It is only freedom from restraint under conditions es- 
sential to the equal enjoyment of the same right by 
others. It is then liberty regulated by law." 

Mr. Justice Brown said in Holden v. Holden,169 U.S. 366 
(1897) at p. 391: "This right of contract however, is it- 
self subject to certain limitations which the State may 
lawfully impose in the exercise of its police powers. 
While the power is inherent in all governments, it has 
doubtless been greatly expanded in its application dur- 
ing the past century..." 

Mr.Justice Peckham said in Alégeyer v. Loutsiana, 165 
U.S. 578 (1896) at p. 591: "In the privilege of persuing 
an ordinary calling or trade and of acquiring, holding 
and selling property must be embraced the right to make 
all proper contracts in relation thereto, and although 
it may be conceded that this right to contract in re- 
lation to persons or property or to do business within 
the jurisdiction of the State may be regulated and some- 
times prohibited when the contracts or business conflict 
with the policy of the State as contained in its stat- 

In Lochner v. New York, 198 U.S. 45 (1904) at p. 53° 
"The general right to make a contract in relation to his 
business is part of the liberty of the individual pro- 
tected by the Fourteenth Amendment of the Federal Con- 
stitution (Allgeyer v. Louisiana), 165 U.S. 578 (1904). 
Under that provision no state can deprive any person of 
life, liberty or property without due process of law." 

Shaw v. Director of Public Prosecutions, [1961] 2 All 
E.R. 446 at 452. 

C&£.Credit and Loan Agreements Act R.S.A. 2 Chapt. 73; 
Unconscionable Transactions Act. R.S.A. 6 Chapt. 377. 
See Graveson, The Movement from Status to Contract, 4 
(1940-41) M.L.R. 261. 




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f ay 

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rad Be 




Schnitzer, Jurisprudence (Rechtskehre), 413. 

Infra Il. 

Inga chapter two. 

Supra 4 et seq. 

A definition of private autonomy restricted on princi- 
ples of contracts only is too narrow. On the contrary, 
it is a question which stretches out beyond the law of 
contracts, it is a question what self-determination 
really can regulate and realize. 

This freedom to act, always within the limits set out 
by the law needs no other reasoning besides that man 
wants it. Recognizing private autonomy means recog- 
nize the sentence: "stat pro ratione voluntas". 

Supra 8. 

Supra 7. 

CC ThA ea i Nah 


The second chapter deals with the influence of the liberal 
conception, inherent in a system of law, on private international law. 
The idea of autonomy in the choice of law process will be the main 


First of all, this autonomy has to be defined in order to 

deal with clear principles later. 

In a second part, the autonomy principle must be justified 

by practical and logical reasoning. 

In the third and last part, the problems of limited or il- 

limited autonomy will be dealt with. 

I. The Meaning of Autonomy in Private International Law 

Autonomy in private international law has no other meaning 
than in internal law. It is the liberty of man, permitting his ethical 
development, the possibility of establishing a sphere in which the in- 
dividual can act, by forming his relations according to his own desires 

and through his own free will. It is responsible self-realization. | 

Autonomy in private international law means foundation and 
conditioning of the international legal relations according to the free 

will of the parties involved. 

ss * ake ; 
a oar lat od, be ae cnbaiat Ch2den & eae, b  ) ae ie 
“ar ene fordw at stsfiq2 & pninaricstee WH. yori rcrasog ott «4 eno 

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| gt “: ips i eee ee | | Ibe atte 

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What the expressions "predominance of the parties will" and 
"party autonomy" really mean, has been deduced dogmatically in the last 
few years only. Unclear and unprecise expressions have been replaced 
by unequivocal terms, in order that the former do not lead to confusion 

Today party autonomy and incorporation of foreign law? 

face each other and a clear and careful distinction is most important. 

LiF The Origin of Autonomy in Private International Law 
Both of these principles, incorporation of foreign law and 
party autonomy find their origin in the idea that the most appropriate 
and adequate solution in conflict. of laws would be the one in which 
the parties regulate their legal relations themselves. The conception 
of LIBERTAS in Roman law? seems to be the origin of the possibility of 

forming legal relations on an individual basis.” 

Thevadestion whether the principle of incorporation of 
foreign law and party autonomy goes as far back as to the Roman or 
even Egyptian law at the time of Ptolemy would ask more and intensive 
historical research. However, it is interesting to note that two 
Englishmen, Grenfell and Hunt, found an explication to a curious custom 
of the ancient Egyptians, which allows us to draw conclusions as to 
which law was applicable to regulate differences between Egyptians and 
Greek merchants who had established colonies in Egypt. The Egyptians 
used to stuff the bodies of dead crocodiles, which were regarded as 
sacred in parts of ancient Egypt, with legal scrap before they entombed 

them. On these papers the two Englishmen found a royal decree regulat- 


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+ nd jane a) om ; a Se 
Bs oe | 2 « pa sworn ais a pat io 

ova he 24 4 a ae | fr Seat + a : pie FT } Pe f rm 4 ‘ 
tv is< 2 @ © . . re ; ae OTR « ei . Bepeg i7rrieag 2 
. - ues ts 

7% : ’ _ 8 

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= ip 
sotevtionga weve O22) ji sOT SB te Ww: -daubdoye te 

ing conflicts of law. This decree determined the applicable law for 
contracts with foreigners (Greeks) taking into consideration the lang- 
uage of the contract. The parties had the choice of going to a Greek 
or an Egyptian notary's office and to write the contract in the Greek 
or the Demotic jianguage. If it had been written in Greek form, it 
would be tried before the Chrematists, the Greek courts in the colonies; 
if in Egyptian form, before the Laocrites, the native courts. By means 

of a choice of the language the parties could make a choice of law? 

Catellani® Suggests that the possibility of choosing the 
law governing relations with alcent existed already before the Justin- 
jan era in Rome. To solve conflicts of laws between the particular law 
and the ius gentium parties had the possibility of choosing one of 
these systems of law, which mostly happened through the choice of the 

Locus stipulationts . 

Many of the learned writers however, find the proper origin 
only in the town laws of the upper Italian townstates and their doctrine 
of statuts in the 13th century. But such famous statutists as Bartolus 
and his scholars Aldricus, Accusius and Carolus de Tocco, did not know 
the direct influence of the parties will on the applicable law. It was 
Rochus Curtius who based the application of the lex ocr contractus on 

the free submission of the parties to this particular system of law. 

Other writers refer to the autonomy in private international 
law as a discovery of DuMoulin, and the liberalistic era of the 

Enlightennent and suggest that up to this epoch party autonomy was only 

to give reasons for the objective connecting factor in the conflict rules. 



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In this context however, attention will be drawn only to 
the relation between the Roman Jaw LIBERTAS and both the foreign law 
incorporation theory and the party autonomy theory. It is precisely 
because of the common origin of these principles in Roman law, that 

they have to be separated severely. 

Party autonomy 2 defined as the principle that legal rela- 
tions in private international law are governed by the law the parties 
intended to be applied, seems to be the younger of these principles. 
Therefore, reading literature and textbooks of the beginning of this 
century, the expressions party autonomy or Partetautonomie or autonome 
de La volonte mostly have the significance of incorporation of foreign 


In this sense, to avoid misunderstandings while studying 
older literature, the principles of incorporation of foreign laws and 

of party autonomy have to be characterized. 

rae The Incorporation of Foreign Law 
The principle of incorporation of foreign law has nothing 

to do with the choice of law problem. Its sphere of action is within 
the applicable law as such. The primary applicable law grants the 
freedom that the parties can, within its ius dispositivum form the 
contents of their legal relations.” Thus the parties to an Alberta 
contract for the sale of goods may expressly provide that their duties 
with regard to performance shall be regulated by the rules contained in 
the Swiss Code. Moreover, an Alberta party and a German party to a sale 

of cattle contract may choose the Argentinian law to govern their con- 


280 Dede 

a giant: 


tot 2 ae 


tract but the Swiss Code to regulate their duties with regard to per- 
formance. Whether this particular term incorporated in this manner is 
valid and effective must be determined by the proper law, the Argentin- 

jan law. 

Therefore the applicable material law has to be known. It 
is this system of law which limits through its ius cogens -its impera- 
tive material rules- this freedom. This freedom is part of the internal 
material law and it is nothing other than private autonomy, namely the 
parties faculty to create their legal relations at their discretion. !9 
Not only is the freedom an integral part of this prunary applicable Law 

but also the ius cogens limiting this freedom; and within this tus cogens 

the parties find the limits of their creational freedom. 

In this sense, the parties can submit to norm contracts, 
they can agree standard form contracts, they can, to regulate possible 
disputes, provide for a specific solution by nominating an arbitration 
panel, or they can incorporate foreign law into their legal relations 
and refer to it as to specific legal consequences. The parties can 
even, keeping in mind the limits set by the <us cogens of the applic- 

able law, choose a foreign system of law as a whole. !! 

The legal re- 
lationship, however, must be subordinated to the applicable Law as 

such in spite of the choice of individual foreign rules or the choice 
of a foreign system as an entirety. Such a reference is a term of the 
contract and never has an influence on the choice of law process in 
private international law; the statute of the contract remains the same, 

namely the applicable Law as such. !@ 

‘ ' ery eee, ' 
‘ " m4 hty ae ihe r » ™~ on ‘ ’ | 
‘7 t : ‘ , ; : tp iy : fd) oP TA < 9 “ w #v o € " Me ” oT qian af 


whe, alt Peo 4% 
ont o - salen 
. 1s 

f © ‘oat if 


: be; 

Sie Party Autonomy in Private International Law 

The sphere of action of party autonomy is totally different 
from the one of the incorporation principle. While the latter is res- 
tricted to arranging the contracts content, party autonomy answers the 
choice of law question, and affects the conflict of laws problem. Party 
autcnomy grants the parties the freedom to choose by themselves the ap- 

plicable law governing their legal relations. 

The logical basis of such a possibility of granting this 
freedom must therefore be considered in the following discussion. A 
second question will be the question of whether this freedom can pre- 
vail against the imperative rules of the applicable Law as such and a 
third question to answer is whether such a freedom should only be ex- 

ercised within certain limits. 

I]. Logical Requirements of Party Autonomy 

iL. Practical Reasoning for the Necessity of Party Autonomy 

Party autonomy alone excludes any uncertainty, any inade- 
quacy and any injustice which adhere and will always adhere to an ob- 
jective choice of law rule. Choice of law in the sense of an express 
choice of law by the parties determines the applicable law in a clear 


and conclusive way. Through an express choice of law by the parties 

internal, material law will be chosen, whereby an eventual xzenvot or 

ue is excluded a priori. Such a solution is just; by the 

means of party autonomy and express choice of law by the parties, the 
parties can take into consideration all possible circumstances which 

may influence their legal relations and by means of choice of the ap- 

plicable law parties know what they can and what they have to expect. 

The opportunity to foresee eventual legal consequences, and in particular 
the security in jurisdiction, which are both postulates of primary order 
to reach undoubtful results in private international law, !° can only be 

reached by giving the parties the freedom to choose the applicable law. 

2 The 2ex fort as a Basis, Permitting the Parties to Choose 
the Applicable Law 

The conflict rules of the jurisdiction, the Lex fort 
grant this freedom of choice. This solution removes all doubts and all 

objections and this explanation withstands the logical demands as well. 

Such objections are that the parties would find themselves in a 
vacuum until a system of law will be appropriate to guarantee the value 
and the effectiveness of their agreement, /® or that the parties would 

V7 or perhaps that first of all 

stand above the law like legislators 
the parties should ask what they are able to choose before they make a 
real choice, have no sound basis anymore. /8 None of these objections 
should be given a hearing. All of these objections lack any sound basis 
because the authorization to choose an applicable law is provided by 
the conflict of laws rules of the lex fort. The objection of a 

cinceukus vitiosus is omitted and the question whether it is the appli- 

cable law which gives the parties the possibility to choose itself or 

not, is answered negatively but clearly through the 2ex jort. 

The gain which will be reached through party autonomy is 
the help the parties give the judges to solve their not always simple 

duties. This does not mean however, that one has to agree with the 



on ve 


on ait zpvihy ASTIN wt oie 

tora a7 baste nw Bie a) 

g vine al beh aon 
iin 2s _ 
4 2 


the opinion of Batiffol!? and the greater part of the American writers. 29 

They see in the express choice of the parties only an aid to find the 
objective connecting factor through a localization of the legal rela- 
tion. The parties never really select the law, not even when they ex- 
pressly agree on choice of law. They merely localize the legal relation. 
The court then determines the law following their lead. In Batiffol's 
own words, <2 faut done rechertcher dans chaque cas comment se Locakise 
Le contrat d'apres ses caracteres propres. OA ces caracteres dependent 
de La volonte des parties qui peuvent gtouper selon Leurs convenances 
dans tel ou tel pays Les divers actes par Lesquels se manigestera L'op- 
eration contractuelle. Bien plus, iL appartient a la volonte des par- 
ties de marquer si tel act a dans Leur esprit plus d' importance que Les 
autres dans L'economie du contract, bres si elles entendent que Leur 

contract sott une 'affamre francaise! on une 'agsfatre espagnole’....!9 

The parties knowing their relations the best will always, 
apart from the rarest exceptions, choose the most appropriate law. The 
overburdened judges do not need to search intricately for the centre of 
gravity, the most reasonable relation and the hypothetical choice any 
more. Misjudgements are no longer possible, since the parties know, at 

the very beginning, what legal consequences occur, they know what 

judgment they can and they have to expect. 

Oniy choice of law by: the parties guarantees the forsee- 
ability and legal security. By means of choice of law the parties can 
consider all circumstances so that an eventual decision does true jus- 

tice to the case. Should the basis of that freedom be found in the 


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Lex causae, all these gains would be negated and lost. 

As we have seen before,¢! incorporation of foreign law is 
only possible within the limits of the permissive Lex causae. The 
principle of incorporation of foreign law is deduced from an internal 
legal norm and in this way is more limited than party autonomy. Party 
autonomy determines, like a conflicts rule, the applicable law as a 
whole, the objective connecting factor being replaced by a subjective 
one. Thus party autonomy is not an arrangement of the legal relations 
within the ius cogens of the applicable law, the primary Lex CAUSAL; 
party autonomy designates through an express choice of the applicable 

law by the parties of the statut of the relation. 

III. Limited or Unlimited Autonomy 

1. Autonomy and Internally Imperative Rules 

It is obvious that by means of choosing the law governing 
the international relations, the ius cogens of the as such applicable 
Law is evaded. But ius cogens is not evaded absolutely. The law 
chosen by the parties governs the relation including its <us cogens. 

In all cases the systems of law are exchanged for each other as a 
whole, including their ius cogens. It may be that the two cura cogentia 
of the exchanged systems do not coincide, in which case the validity 
will be determined by the ius cogens of the chosen system. The reason 
therefore, is that the ius cogens grew out of this system and is adapted 
to this chosen system. Practically, in all systems of law the «us 
cogens is about the same, follows the selfsame ideas and conforms to the 

ideas of its system; ce sont des principes qui ont partout un contenue 

“i HSE ee. 



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sensiblLement identique et forment Le fond commun du droit des peuples 

a Limited or Unlimited Choice of Law by the Parties 
If party autonomy and express choice of law by the parties 
are recognized principles in private international law, the question 
should be answered whether this party autonomy should be unlimited and 
whether at the discretion of the parties, any system of law can be 


Different views are represented in the literature. A 
great number of writers, mostly belonging to the modern generation, 
claim an unlimited choice of law by the parties and others consider 
some limitations to the choice appropriate. The most vehement advo- 
cates for an unlimited choice are Rabel and Wolff. Rabel has the op- 
inion that, after considering all sorts and kinds of limitations, 
choice of law by the parties should be unlimited, " seems after 
all, that the alleged general rule limiting the choice of law by the 
parties to a determined number of legislations does not and should not 

exist", 9 

The same opinion has been represented by Wolff24 as well as 

by Graveson,2° Mann 26 and Cohn@/. 

Other learned writers plead a choice of law by the parties 
with certain limitations. The Italian writer Anzilotti demands a rea- 

sonable and normal will and that a capricious choice should be prohib- 


ited. 28 A German and a Swiss writer, Doelle“~ and Vischer29 demand a 

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legitimate interest of the parties to apply the chosen law. 

Batiffol®| is representative of the localization theory. 
According to this theory, the applicable law is to be determined partly 
by the legislator, partly by the parties, which altogether means by 
the tribunal, in the end result. 


Mad1~° whose theory is based on the socialist theory 

will allow a choice of law if it does not "run counter to public policy 

and it is not prohibited in some respect by domestic eye 

The answer to the question of limitations, and when af- 
firmative, what kind of limitations should confine party autonomy, will 
be seen by dealing with the question of admitting the principle in 

different domains of private international law. 



Footnotes to Chapter Two 


Supra a 

Usually, inthe early European literature the distinction 
between these two principles is not quite clear. Then, 
later on, the distinction was made between 'materiell- 
nechtlicher Parteiautonomie' and 'kollisionsrzechtlicher 
Pantecautonomie' which conform with the idea of incorpor- 
ation of foreign law and party autonomy. 

Florentin, Digesta, 1.5, 4 pr.: “libertas est (naturalis) 
facultas eius quod cuique facere libet, nisi si quid vi 
aut iure prohibetur." Supra n.6 of the first chapter. 

Schulz, Principles of Roman Law, 145: "...the Roman 
principle of liberty led to extreme individualism in 
the domain of private law." 

Lewald, Conflit des Lois dans Le monde grec et romain, 
(1946) 13 Archaiou idiotikou dikaiou 30 et seq. See 
also Dainese v. U.S., 15 Ct.C1.64 and the theory of 

In 12 dinitto internazionale privato e 4 suot recent 
progressd, Torino (1895/1902) Vol.1, 178 et seq. 

See Meylan, Les status nels et personnels dans La doc- 
trine de DuMoulin, in: 'Melanges Paul Fournier (1929) at 

See DuMoulin, Conclusiones de statutis et consuetudint- 
bus Localébas,in: Comentartis in Codicen, liberum |, 
titulum 1, published in Omnia opera 3 III (Paris 1681) 

See Yntema, ‘Autonomy’ in Choice of Law, (1952) 1 Am. J. 
Comp. L. 342 refers to the days of Adam Smith, Jean 
Jacques Rousseau and Emmanuel Kant. 

The concept of party autonomy seems to be established by 
Zitelmann, Internationales Privatrecht, Bd. I at 160 and 
270 and Bd. II at 374, as a reaction against the absolutism 
of the will of the parties. 

This free right is well established, see e.g. Re Suse and 
Sibeth, ex parte Dever, (1887) 18 Q.B.D:. 660; G. E. Dobelt 
v. Steamship Rossmore Co. Ltd., [1895] 2 Q.B. 408; Rowett 
Leakey & Co. Vv. Scottish Provident Institution (1926), 134 
L.T. 660; Ocean Steamship Co. v._ Queensland State Wheat 
Board,, [1941] 1 K.B. 402; [1941] 1 All E.R. 158; F. wW. 
Jabbour v.Custodian of Isnaely Absentee Property, (1954) 
1.W.L.R. 139; [1954] 1 All E.R. 145; Re Helbert Wagg & Co. 
bid steele nj 1956) (Chig735 

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Supa chapter I. 

Bowen, L. J. in Jacobs v. Crédit Lyonnais, (1884) 12 Q.B.D. 
589 said at 499: "It is open in ali cases for the parties 
to make such agreement as they please as to incorporating 
the provisions of any foreign law with their contracts." 

See 2 von Bar 4; 1 Zitelmann 274; 2 id. 373; Lewald 199; 
Niboyet 54; Cheshire-North 210 and Graveson 434. 

See e.g. a case decided by the Swiss Federal Tribunal: 
Guaranty A.G. v. Astra, BGE 81 II 391: In sales contract 
which had relations to Italy, Yugoslavia and Switzerland 
the parties agreed that Italian law should govern the 
contract. Italian law refers back to Swiss law, the 
place of performance. This 'renvort' has not to be res- 
pected, because the parties want the Italian internal 
law to be applied and not the Italian conflict of laws. 

We look at 'xenvoi' as expression only in a strict and 
original sense of the word, meaning a reference from a 
second back to a first jurisdiction's law (the whole law 
including its conflicts law). ‘Transmission’ -a 'Aenvot!' 
in the wider sense of the word- is the reference from a 
second forward to a third jurisdiction. 

See e.g. 2 Rabel at 361: A merchant in Massachusetts 
(Lex Lock contractus) by intervention of a New York agent, 
enters into a transaction with a resident of California 
(Lex Lock sokutionts), performance due in Connecticut 
(party autonomy principle is there applied). The requi- 
sites of a valid contract are established: in the Massa- 
chusetts court by the law of New York, in the courts of 
California by the law of Connecticut, in Connecticut 
courts according to the circumstances of the case, and 
how in New York courts nobody knows. 

Anton at 189: "There are good practical reasons for res- 
pecting the parties' own choice: 

1) it makes for certainty in international affairs...". 

Neumeyer Autonomie de La volonté et dispositions impéra- 
tives en droit international privé, (1957) Rev. Crit. 
d.i.p. 107. 

Lewald 200. 

2 von Bar 122. 

Batiffol 622, pare. 5/Z. 

For the American writers see 2 Rabel at 36/7. 

Supra 18 et seq. 




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Neumeyer, oc cit. 62. 

Conflicts, 410. 

Private International Law, 418, S.400. 

International Contracts, 1, et Seq. 

Mann, The Proper Law of a Contract, (1950) 3 1.L.Q. 60. 

Cohn, Objectivist Practice on the Proper Law of Contract, 
CY957 6!" Coles fae 

Anzilotti, 12 principio deke' autonomia, (Diritto commer- 
ciale XXII, 1904) speaks of "una saggia e normale volon- 
ta e che una volonta capricciosa sia proibita." 

Doelle, Internationales Privatrecht, 48,113. 

Vischer, Internationales Privatrecht, in 1 Schweizerisches 
Privatrecht, Basel und Stuttgart, 1969, at 6/70. 

2 Conflicts, 214. 

Mad1, Foreign Trade Monopoly, (Budapest 1967) 104. 

CHCA Biba tenho 


In this third chapter the question will be dealt with 
whether party autonomy can influence the choice of law process in dif- 

ferent domains of the conflict of laws. 

This wide scope of an application of the party autonomy 

principle however, has to be restricted in two senses. 

First of all, the term party autonomy or express choice of 
kaw by the parties has to be distinguished from the term pr04es5t0 
Awits. TO start with the second principle, professio 4ut1s means a 
choice out of different legal systems to which an objective connection 
is already existing. In this sense, the expression professio curs iS 
more limited than the term express choice of Law by the parties. An 
inherent restriction exists already through the objective connection to 
the eligible systems of law. NAG Art. 22 e.g. gives the possibility of 


Inheritance is governed by the law of the decedent's 
However, by testament or inheritance contract, the in- 
heritance may be subjected to the law of one's home canton. 
The choice in this case is only possible between those systems of law 
with which an objective connection already exists; the Lex domicihii 

and the 2ex patriae. 

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The first principle only is of interest in this chapter, 
the express choice of law by the parties as it is understood according 
to the evaluation within the second chapter. The parties' will is the 
connection to the foreign law. This subjective connection has the 
same value as the connection with the domicile or the place of action. 
Together with these connections, the parties' will is at the same level. 

Party autonomy in this sense is the only subject in this thesis. 

Secondly, party autonomy or an express choice of law by the 
parties has its influence as a primary connection only in domains, 
where no intrinsic interests of third parties are threatened. Third 
parties are understood in a general and technical sense as parties who 
are not directly involved. They stand besides the legal actions but 
they could be affected in some way by an issue between the principal 


Furthermore, parties can only establish a substantial sub- 
jective connection to a foreign system of law, where issues of a high- 
ly personal character; or effects on persons, are the main questions of 
the choice of law process. Therefore, in a first subtitle, contracts 
have to be dealt with. Contracts are legal relations between parties 
at the same level and, in most cases, with the same bargaining power. 
The  parties' interest is predominant and the third parties’ interest, 
if they are not at the same bargaining level, is negligible. Ina 
second subtitle, torts will attract attention. International torts 
and their legal issues are highly in the parties’ interest, the parties 
who are involved and again, third party interests are negligible. Ina 

third and last subtitle, matrimonial relations, relations with a highly 

mast Pas 

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= el ee 

personal aspect have to be dealt with. The position of the third par- 

ties has to be determined according to the special nature of that re- 


The domains of property and wills, especially, are not dealt 
with in this thesis. Neither is Properly within the formal principle men- 
tioned above. Property rights are first of all not problems of a 
highly personal character nor can it be said that the third parties' 
interest is negligible. On the contrary, third parties' interest de- 
mand a clear and easy approach to the choice of law, which must be 
governed by the publicity principle. The same grounds have to be ap- 
plied on the exclusion of the law of wills regarding a possible express 
choice of law by the testator: "But clearly there can be no selection 
by anyone of the law which is to apply on intestacy and I know of no 
authority to the effect that a testator can select the law which is to 
regulate the provisions of his will", said Lord Reid in Philipson-Stow 

“ae ] 
v. Inland Revenue Commtssconjoners , 

First of all international contracts will be consid- 
ered. The law of contracts in internal as well as in international law 
is central and a principal key to the creation, change and extinction 
of rights by conscious individual action.¢ Although unilateral and 
voluntary obligations are not dealt with as contracts anywhere over the 
world, in private international law the principle of contracts applies 

also to such obligations? 

There are many other situations in which the law of con- 

tracts can be applied by analogy. Therefore, the first subtitle will 


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be devoted to it. 
First Subtitle: CONTRACTS 

In this first subtitle, attention will be directed to 
the connection between the autonomy theory and the proper law theory. 
The proper law theory will be described shortly and by the means of 
looking back to its development, the term proper law will be defined 
for the purpose of this thesis. This will be necessary to establish a 
connection between the autonomy theory and the proper law theory and to 

understand better the autonomy concept. 

A second part will show that the autonomy principle has 
been accepted almost all over the world and therefore needs no more 


However, in a third part, the need for a limitation of such 

autonomy in international contracts has to be examined. 

ii The Proper Law and the Autonomy Theory 
ie The Proper Law Theory 

A. Origin and Development in England 

The beginning of the proper law doctrine goes as far back 
as into the 17th century. The Lex Loci contractus principle lost its 
appeal for the first time in a case of marriage settlement. In 
Foubert v.Turst’, a case in 1703, counsel argued that "all lawful 
contracts as well as marriage, as relative to anything else, ought to 

be fully performed between the parties and their representatives, ac- 


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cording to the apparent intent of such contract...".> It seems that this 

is the very first formulation of doubting of the rigid lex contractus, 


influenced by the Dutch Huber's De Conglictu Leguwn’ which was published 

towards the end of the 17th century. 

In a case in 1742, in Connor v. The Eark of Bellamont?! , 
the Lord Chancellor accepted in some way the idea that the obligation 
of a contract can be governed by some other law as well as by the hae 
Lock contractus, and he applied Irish law on an interest debt payable 

On a contract made in England but secured on Irish immovables. 

In 1742 as well, the Scottish case of Lovat v. Fonbes® 
echoed the influence of Huber's idea for the first time in Great 
Britain: "Where the parties in contracting had another place in mind, 
the place where the contract was entered into should not necessarily 

be applied" .9 

Writers generally agree that in England the principle has 
been established for some considerable time and has been recognized 


Since 1760 in the Robinson v. Bland case. In this case, Lord Mans- 

field, also influenced by Huber's statement}! said that: Suess the 
general rule established ex comitate et iure gentium, is that the place 
where the contract was made and not where the action is brought is to 
be considered in expounding and enforcing the contract. But this rule 
admits of an exception when the parties (at the time of making the 
contract) had the view to a different kingdom,... The law of the place 

can never be the rule, where the transaction is entered into with an 

express view to the law of another country as a rule by which it is to 


i at aii Lyte! mH 


be governed", !¢ While Robinson v.Bland does not accept an express 

choice of law by the parties as a matter of. fact, since Lord Mans- 
field's dictum in which he mentioned the express choice of law by the 

parties as well, the party autonomy principle found its authority. 

In the case Hamlyn v. Talisker Distittery(13894) 19 for the 
first time a real express choice of law was decisive to answer the 
question of the law applicable to an international contract. In this 
case, a contract was made in England between an English and a Scottish 
firm to be performed in Scotland. The contract had, as an integral 
part, an arbitration clause providing that any dispute arising out of 
the contract was to be settled by arbitration by two members of the 
London Corn Exchange, or the umpire, in the usual way. Lord Ashbourne 
said: "Were it not for the arbitration clause, I should assent to the 

conclusion that the parties contracted solely with a view to the appli- 

cation of the law of Scotland (as the law of the place of performance)". 14 

Lord Herschell said: "It is perfectly competent... to indicate... 
which system of law they (the parties) intend to be applied to the 
construction of the contract and to the determination of the rights 

arising out of aes 

Therefore the construction of the arbitration clause was 
governed by English law and valid, despite the invalidity by Scots law 
because of lack of personal denomination of the arbitrators. Further- 

more the arbitrators were to apply English law. 

Insofar as the common law does not apply for Canada, the 

civil code of the Province of Quebec provides in its Art. 8 of the 


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preliminary title: 

Deeds are construed according to the laws of the country 

where they were passed, unless there is some law to the 

contrary, or the parties have agreed otherwise or by the 

nature of the deed or from other circumstances, it appears 

that the intention of the parties was to be governed by 

the law of another place; in any of which cases effect is 

given to such law or such intention expressed or presumed. 

By ai Nonacceptance of the Principle in the United States 

In the United States the influence of the English juris- 
diction did not have the effects of guiding the courts and the academic 
theory that one would expect. The greater number of American courts 
followed the rigid rule of the Lex Loct contractus -actus or solutionis- 
and followed with the opinion of Judge Learned Hand, formulated in Gerte 
SIC Ras Vi Canaid §S SS. Ltd. |; "People cannot, by agreement, substi- 
tute the law of another place; they may of course incorporate any pro- 
vision they wish into their agreements -a statute like anything else- 
and when they do, courts will try to make sense out of the whole, so 
far as they can. But an agreement is not a contract, except as the law 
says it shall be, and to try to make it one is to pull on one's boot- 
straps. Some law must impose the obligation, and the parties have 
nothing whatever to do with that; no more than with whether their acts 
are torts or crimes."!/ The American academic writers continued look- 
ing to the lex Loci contractus as to the law governing contracts and 
the invasion of European writers just before the outbreak of the Second 

World War did not have very much influence. /8 

Despite this non-acceptance of the well known principles 

from the other side of the Atlantic ocean, some authority can be 

_ found which is obviously based on Lord Mansfield's avctinene 

Le 4 ’ ' Pa i) Pal | 4 , tA \ it ‘3 ar vn Mes anh 
; ; SOC IDS Sd ied 


pone) Der dau j seer aN 4 doit’ Laas " uh 

Chief Justice Marshall established the express choice of 
law rule in Wyman v. Southand?? in a statement which has been cited in 
Pritchard v. Noxton?? and in O'Tooke v. Meysenburg??: It has been 
said that "the situs of a contract is one of the troublesome problems 
of private international law, but one rule stands forth clearly: That 
the intention of the parties as to the law they desired to apply will 
govern, if such selection be made in good faith and be not opposed to 

the public policy of the forum" 2° 

Despite this clear statement, the American courts are 
still hesitating in applying the party autonomy principle in its full 
extent, and the confusion has not been relieved. Even the Tentative 
Draft No. 6 of the Restatement 2nd@* had no chance to help against the 
conservatism in American courts, still basing its choice of law rules 

on the objective connections only. 

Ge The Present Day Tendency 

The present day tendency flowing from the offical draft of 
the Restatement, Second, Conflict of Laws29 approaches more closely to 
the English and European doctrines of the proper law and of party 


As it will be seen, the proper law theory solved all the 
problems inherent to the rigid contracts rule. All the objective con- 
nections, the place of making the contract, the place where it is to 
be fulfilled, -even the scission into two parts regarding the laws to 

be applied-, the contact with corporeal assets and so on, all these ob- 


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jective connections which lead to confusion and the problems which 
could not be solved in a century of world trade, disappear. With the 
acceptance of the appropriate law, one particular system of law, easy 

to determine, governs all aspects of international contracts. The 
proper law or the appropriate law, 2° is the law which the parties 
intended to apply,¢/ -- the law they may fairly be presumed to have 
intended to apply,28 or it is the law of the country in which the 
contract may be regarded as localized. Localization will be indicated 
by the grouping of its elements as reflected in its formation and in 

its terms .2? This localization theory examines other connecting factors 
than the places of making or fulfilling the contractual obligations, and 
it looks at expressions implied in the contract such as currency in 
which the debt has to be paid, the language of the text, arbitration 

clauses and so on and so forth. 

The most recent theory abandons the localization theory 
and the proper law depends on two factors, namely, the intention where 
there is no express choice of law, and on the parties express will 

where there is an express choice of law by the parties. 

If there is no express choice of the proper law by the 
parties, the judges may ask what the parties ought to have intended if 
they had considered the matter.29 The rule stands forth clearly in 
The hemingione. >. where Singleton L.J. Said: 

Then the court has to determine for the parties what is 
the proper law which, as just and reasonable persons they 
ought to have intended if they have thought about the 
question when they made their contract. That, I believe, 
is the duty upon us, and in seeking to determine the 
question we must have regard to the terms of the contract, 
the situation of the parties, and generally all the sur- 
rounding facts... One must look at all the circumstances 

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and seek to find what just and reasonable persons ought to 
have intended if they had thought about the matter at the 
time when they made the contract. If they had thought that 
they were likely to have a dispute, I hope it may be said 
that just and reasonable persons would like the dispute 
determined in the most convenient way and in accordance 
with business efficacy. 

This is an approach to the closest and most real connection theory 

which was stated by Westlake as follows: "The system of law by refer- 

ence to which the contract was made or that with which the transaction 

has the closest and most real connection...".933 

However, presumptions and references to the parties con- 
structive intentions are no longer considered and are treated as simple 
legal fictions. The absence of an express selection of the proper law 
shows that they did not think about, and to ask in such a case would be 

to ask a question "that admits only an artificial answer" .34 

The law of that legal system to which the contract has the 
closest and most real connection governs, if the parties did not express 

their will on the applicable law. 

If there is an express choice of the law, there will be no 
doubt that this law will be the proper law of the contract. This is 

real autonomy, exercised by the parties. 

a The Autonomy Theory 

For decades, autonomy, the express selection of the proper 
law, has. been exercised and is a leading principle in the conflict of 



, A 

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Since the leading case Vita Food Products Inc. v. Unus Ship- 

32 the principle has been well established by the House of Lords. 

ping Co. 
Denning L. J. first hesitated in Botssevain Vv. weit? "Notwithstanding 
what was said in Vita Food Products Inc. v. Unus Shipping Co., I do not 
believe that the parties are free to stipulate by what law the validity 
of their contract is to be determined. Their intention is only one of 
the factors to be taken into account".3/ He abandoned then as Lord 
Denning, Master of the Rolls, in Tzortzis v. Monatk Line A/B?° the 
localization theory and stated: "It is clear that, if there is an ex- 
press clause in a contract providing what the proper law is to be, 

that is conclusive in the absence of some public policy to the contrary".°9 
In the most recent case, Miller and Partners Lid. v. Whitworth Street 
Estates Ltd.a 1970 case, Lord Reid confirmed, obiter because there was 

no express choice of tie proper law in that case: "Parties are entitled 

to agree what is to be the proper law of their contract... There have 

been from time to time, suggestions that parties ought not to be so 
entitled, but in my view there is no doubt that they are entitled to 

make such an agreement, and I see no good reason why, subject it may 

be to some limitations, they should not be so entitled" .40 Dicey and 
Morris made the rule that says, "when the intention of the parties to 

a contract, as to the law governing a contract, is expressed in words, 

this expressed intention in general determines the proper law of the 

contract" .41 

This is also the law in Canada. Going back to 1919, in 
Re Naubent*%a life insurance contract had been made in the Province 
of Quebec between parties there domiciled. The money being payable 

by the company at its head office in Montreal, Quebec, the Quebec law 

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should govern. But all parties desired that the case should be decided 

on the law of Ontario and had signed an agreement to that effect. 

Ridell J. said that "such an agreement is valid: Quilibet 
renuntiare potest iuri pro se introducto; and here there were no third 
parties whose rights were derogated from, no statutory direction vi0- 

lated and no public interest injuriously affected 43.44 

In George C. Anspach Co. Ltd. v. C.N.R.* a 1950 case, 
Wilson J. states the principle of party autonomy, as it is well known 
in the English conflicts of law: "...the law, or the laws by which the 
parties intended... the contract to be governed... and... the proper 
law of the contract is the law which the parties intended to apply". 46 
He criticizes, then, the principles contended for by Prof. Beale and 
quotes positively, Rabel's conflicts of laws. 
In Colmenares v. Imperial Life Assurance Co. of Canada*? 
Porter C.J. expressed his opinion that "...the proper law of a contract 

means the law or laws by which the parties intended to be governed" .48 

These principles are also current law in the other Provincial 


Even all over the world, doctrines ,° legislation,°! and 
jurisdictions22 agree unanimously, that the autonomy of the parties 
regarding the choice of the proper law is a leading principle in inter- 
national contracts. Contracts in private international law, therefore, 

are governed by the law the parties intend to apply. 

fii rero His 



SF Connections Between the Proper Law Theory and the 
Autonomy Theory 

Concluding this short description of the proper law theory 
On the one hand and the autonomy theory on the other, it is easy to see 
that the autonomy theory is an integral part of the proper Jaw theory. 
By means of the autonomy theory, the parties through their acting ac- 
cording to their own will, choose the proper law governing their con- 


Express choice of the proper law by the parties and party 
autonomy theory originate from the same sources .9% Furthermore, they 
pursue the same goals,in the first place, to ascertain men's freedom 
in actingas a rational moral agent,°4 and in the second, in helping the 
judges as the jurisprudence shows, to solve their not always easy and 
simple duty, deciding problems in international contracts in a quick 

and decisive way 2° 

II. General Acceptance of the Principle of Express Choice of Law 
by the Parties 

The principle of autonomy in international contracts is 
generally accepted in private international law. Therefore, there is 
no need at this point for further justification, and it is only neces- 
sary to refer to the numerous authorities which support this state- 

ment .© 

Hence there is some need to deal with the problem of limit- 
ations of this autonomy principle in international contracts because 

these limitations were subjected to a most decisive development. 

Be seen™ 
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If Limitations on the Principle of Express Choice of Law 

Express choice of law by the parties is unlimited. 

All trends to limit express choice of law by the parties 
are guided by the idea that the parties could effect an unseemly choice 
and that they may abuse this freedom of choice of law, like children by 
evasion of law or a lack of seriousness. If on this pretext, express 
choice of law by the parties ought to be limited, this would mean the 
destruction of a house because one day, a tile could fall on one's 

head. °/ 

1. Immanent Restrictions 
Immanent restrictions2® which limit the express choice of 
law principle by itself, do not exist. "The intention expressed in the 

59 in R. v. Interna- 

contract... will be conclusive", said Lord Atkin 
— Ahonal Trustec®9; "...that the intention of the parties to a contract 
is the true criterion by which to determine by what law it is to be 
governed is too clear for controversy", said Lord Lindley®! in 
Spurrier v. La CRoche®*; "¥.the only question to be determined (is) 
the question what was the law which the parties contemplated as being 
the law governing the contract", said Lord Halsbury®3 in The Missourt 

Steamshipo* case.0> 

However, in the Vita Food case, 06 Lord Wright said that 
"where the English rule that intention is the test applies, and where 
there is an express statement by the parties of their intention to 
select the law of the contract, it is difficult to see what qualifica- 
tions are possible, provided the intention expressed is bona fide and 

legal and provided there is no reason for avoiding the choice on the 

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ground of public policy", 7 and it seems that he established by his 

dictum, some limitations .68 

All these limitations mentioned by Lord Wright are not im- 
manent restrictions of an express choice of law by the parties. They 
are however, restrictions belonging to the general idea of law and es- 
pecially of conflicts of law; they are principles which rule over the 

whole system of law. 

In this sense, the requirements of a Legal choice, meaning 
legality on an international level ,o” is fulfilled if a contract enters 
into the international scope of law. Every express choice of law, there- 
fore, is legal if the contract has some connections with more than one 
country. Notwithstanding how important this connection might be, the 
parties have the possibility of choosing any legal system, provided the 
general principles which govern the whole system of law are not disre- 
garded ./9 Though, by the fact that a contract is an international 

contract, a choice of law will be regarded as legal. 

The requirement of a bona fide choice might be accomplished 
if the parties show no mala {ides in evading a definite legal system. 
However, which legal system would be evaded by choosing the law govern- 
ing an international contract? There could be one, two, ten systems of 
law which could be evaded; none of these laws are evaded, because none 
of these laws can claim to govern an international contract exclusively. 
The international contract has links to different legal systems, it is 

not part of one particular system of law and therefore no particular 

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legal system is evaded, with the exception that the contract: must have 
a foreign element, which corresponds with the legality requirement./! 
If the express choice of law principle is accepted in private inter- 
national law and the parties effect an express choice, there is no more 
question about the law with the most substantial and the close connec- 
tion. If this principle is accepted, all legal systems stand on the 
same level and have therefore, the same right and the same pretension 
to be evaded. One cannot say that this legal system is more evaded 
than another one, and therefore the imperative rules of the first sys- 

tem, and the first one only have to be applied as a whole. 

uP General Clauses 

The principle of public policy of course is the most im- 
portant restriction on the express choice of law by the parties. Hence 
it is not a limitation immanent in this autonomy principle, but it is, 
furthermore, a general principle of law, and especially of conflict of 

It will just be mentioned that there is no reported case 
in Canada nor in England in which there was no effect given to an ex- 

press choice of law by the parties./¢ 

But however, there is a recent Austraiian case, Golden 
Acres Lid.v. Queensland Estates Pty. Ltd./3 Freehold Land Investments 
Ltd., a Hong Kong company » carrying on business in the sale of land in 
Queensland, could not recover its commission because it was not 
licensed as required by a Queensland Statute and because the agreed 

commission exceeded the maximum rate laid down in this Statute. The 


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contract had a provision that for all purposes arising under this 
agreement, the same shall be deemed to be entered into in the Colony 

of Hong Kong. 

Hoare J. opined that the selection of a law other than the 
law of Queensland was made for the specific purpose of avoiding the 
consequences of illegality which would or might have followed if the 
Queensland law applied. /4 His Honour concluded that the purported 

selection of Hong Kong law was not a bona fide selection./° 

Kelly’6 approved the result of the reasoning as hardly 
questionable but expressed the opinion that the case could have been 
decided on the ground of public policy, e.g. incompatibility with a 

statute of the forun.// 

ce The American Doctrine 
A somewhat different view has been taken by the American 
courts and the American doctrine. Finally, the Restatement, Second, 
Conflict of Laws’® as adopted by the American Law Institute in 1969, 
determines in its Chapter 8, S. 187, that, for contracts, the law of 
the State chosen by the parties should govern.’/9 Subsection one deals 
with, as it is called in this thesis, the incorporation of foreign law 


theory ,® while subsection two permits the parties to choose the ap- 

plicable law in interstate conflicts. 

The Restatement, Second, states two limitations to the 
express choice of law by the parties. The first one is the requirement 

of a reasonable basis for the parties’ choice,®! and the second limita- 


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tion is the denial of recognition to a choice of law if the appli- 
cation of the chosen law would be contrary to the fundamental policy 

of an otherwise applicable law. 82 

The requirement of a ‘reasonable choice' is accomplished 
when the choice of law was not made in the spirit of adventure or to 
provide mental exercise for the judge-situations which do not arise in 
practice,&3 where there is a substantial connection or relationship, or 
when there is a demand for certainty, predictability or convenience, 

these being goals of primary order in private international law. 

The requirement of a ‘reasonable choice’ seems to be un- 
necessary, because the content of such a limitation could be so widely 
circumscribed that it would be of no value anymore. The exigency of 

internationality is sufficiently restrictive and could cover it entirely?" 

The limitation, as it is stated in the Restatement, 
Second, that no choice of law can be effected if it would be contrary 
to the fundamental policy of the State of the applicable Jaw in the 
absence of an effective choice, namely the state with the most real 
and substantial connection, is a typical ‘interstate policy' problem, 
arising out of the usury and insurance cases. The transfer of this 
American State interest policy "in the scope of international commerce 

cannot be admitted and would be disastrous", °° 

However, the Restatement, Second, makes an express refer- 
ence to the local law of the chosen state, omitting any eventual ques- 

tion of a ‘xenvoxt' or ' transmission’ .8© 

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IV. Conclusion 

The autonomy theory is that part of the proper law doc- 
trine by which the parties are permitted to choose the applicable law 
for their international contracts by their own will. This express choice 
is decisive. The possibility of choosing the applicable law is not 
limited, provided the contract is an international contract. A contract 
becomes international by having connections with more than one particu- 

lar legal system. 

The requirement of internationality is only the logical 
answer to the conflict question. It seems an obvious and logical con- 
sequence, that first of all, the conflicts question has to be considered 
when a conflicts case is dealt with, and this conflicts question can 
only Wevcane ered within an international case. Whether the case ful- 
fills the requirement of internationality or, in other words, whether 
its connection with a foreign legal system would be sufficiently inten- 

sive, is not yet answered. 

In a classic, properly national case, as it is dealt with 
in 44 RGZ 300, the conflicts question is not considered. In this case, 
a Dresden domiciled Saxon claimed the services of a Leipzig(Saxony) 
domiciled matchmaker, referring to Prussian law, which, in contrast to 
the Saxon, considered valid the promise of award given to the matchmaker. 
The German Reichsgericht nulified the stipulation of choice of law, basing 
its judgment on the fact that personally and substantially, the trans- 
action belonged solely to one jurisdiction, lacking all and any foreign 
elements.’ The stipulation of a foreign law alone does not make an 

international case out of a national one. The complete transaction took 

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place within one system of law. However, the question of the applicable 
law has to be considered, and it is not the applicable law regarding the 
'ocus'’ which is in question, but merely the applicable law regarding 
the 'tempus'. It cannot be in the parties' discretion to make a purely 
national case, without any spatial or personal connections abroad into 
an international case merely by a substantial interest in the applica- 

tion of the stipulated law 22 

It would be too easy for the parties to create an inter- 
national out of a pure national legal relation, merely by a change of 
the connecting factors beyond the limits of the 'as-such-applicable' 
law. Therefore, a stipulation of a foreign law in an internal contract, 
would not be permissible, in the same manner as_ the change of the con- 
nections merely by posting a letter of acceptance on the other side of 

the border or by establishing a fictitious place of business abroad; 
would be forbidden. 

However, the French cour de cassation89 defended the 
choice of the English law by applying a formula of the London Corn 
Trade Association to a contract between a French merchant and a French 

company, which had to be performed in a French harbour. The fact that 

the goods were coming from abroad and had to be paid by cheque in London, 

and furthermore, that the headquarters of the French company was in the 
Netherlands, although the company had its 'sj@ge sociale’ in Strasbourg 
(France), and that the parties submitted themselves to a London arbi- 

trator, the contract became an international contract and "(met) en jeu 

des intéréts de commerce international" .20 


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Evidence for the internationality of a contract has been 
established by the Cour d‘Appel de Paris.2! The international character 
of a contract is to be considered if the place of contracting is abroad, 
if the parties have a different nationality and the purpose of the con- 
tract would consist in displacing goods over the borders. In such a 
case, the parties would have the possibility of choosing freely a 

particular system of law. 

In the literature, the question of internationality has 
not been answered positively. The 1956 Hague Conference which dealt 
with the problem of internationality, confined only negatively the 
requirement of internationality in its Art. 1 al. 4: "la seule déclar- 
ation d'un juge ou d'un arbitre ne suffit pas a donner a la vente le 
caractére international au sens de 1'alinéa ler du present article'92 
This negative definition bears no solution because in the common law 
countries, an arbitration clause is regarded as an objective connec- 

tion. 2° 

The decision of the French court?" may be a guideline in 
answering the question whether the contract has entered in the inter- 
national scope or whether it remains a pure internal contract. The 
criterion. of an objective connection to more than one legal system will 
be decisive as to the question of internationality, whereas a restric- 
tion however, of the free choice of law between the laws which have an 
objective connection, only would be too narrow-minded. This is incompatible 
with the ideas of "helping to produce that ‘swift and certain rule' so 
important for merchants". 2° An example would be the difficulties regarding 

the law governing 'contrats de suite'. Often Argentine farmers cannot 


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establish a substantial connection to the law of England provided by 

the formula set by the London Corn Trade Association. 

As long as an objective connection to at least one for- 
eign legal system exists, the contract has to be classified as an inter- 
national contract. The question whether a specific connection is object- 
jive or not has to be decided by our judges and this task is not too dif- 
ficult, because the judicial decisions have shown that the merchants are 
not as malicious as academic writers and judges would like to have them. 
And even if on an isolated occasion, an experienced party may abuse its 
freedom of choice and choose an unseemly legal system, which cannot be 
helped with the requirement of internationality, then it should be ac- 
cepted and the conflict of laws gourmet should find consolation in con- 

suming this new delicacy.?° 

However, an English court had no difficulty in enforcing 
a choice of law clause in a contract made in New York between a Citizen 
of Ecuador and a Canadian company, respecting certain mineral rights in 
Ecuador: "While for convenience this agreement is signed by the parties 
in New York, United States, it shall be considered and held to be one 

duly made and executed in London, England. "9/ 

Therefore, it can only negatively be said that the reqire- 
ment of internationality is not satisfied when a "contract by ‘alt! (not 
only by some) substantial connections belongs to one sole jurisdiction, 

and this, is devoid of 'alf' considerable foreign elements ."98 

1 %6 n/t si s.sraan TeRabbedue s , dutta eta 


Footnotes to Chapter Three, First Subtitle 




[1961] A.C. 727 andsee Re Levick's Wiel Trust [1936] 1 
WLR. BUL- | 

See Anton 184. 

Re Pilkington's Wile Trust [1937] Ch. 574. 
Dickson on Evidence, S.1014. 

Fourbet v. Turtst, (1703) 1 Brown Parl. Cas. 129. 130/131. 

See Dicey-Kahn-Freund, Conflict of Laws, (6th ed.) 597. 
Connon v. The Eark of Bellamont (1742) 2 Atk. 382 

(1742) Mor. 4512 

See Guthrie's Savigny Translation, 513, referring to 
Praelectiones Iuris Romani et Hodierni, Part II, Book 1 
Hitless PSubtiHtles al Wyu34; 

C760) SM eB Paee5/ 2 

Supra ny 8. 

Td faite 2587 259°. 

[1894] A.C. 202; however, Graupner, Contractual Stipula- 
tion Congferring Exclusive Jurisdiction upon Forergn Courts 
in the Law of England and Scotland (1943) 59 L.Q.R. 227, 
228 goes back as far as 1796 to the Gienart v. Meyer case 
(1796) 2-Bl. 603 and Graveson 430 goes as far as to Santos 
Vaeretidge (1860) 8 C2B: (W.S.) 861. 

At 215. 

At 208. 

(Ga Gehemcnay 1931) s24SF, (end) 1 )5: 

Pda teal ye 

For detailed analysis see Yntema, "Autonomy" in Choice 

of Law in the United States,(1955) 1 N.Y.L. Forum 46; Reese 
Contracts and the Restatement of Conglict of Laws, Second, 
(196 Q)e Sele CileQeet53 Lee wet 

Supra 33 n.9. 

US 1825, lo Wheat.1. 


a BS 











106 U.S. 124 (1882). 

(GC. CAA .t8th 191s) eoipreds: 191. 194. 

S. 332a of the Tentative Draft No. 6. 

Restatement, Second, Conglict of Laws; proposed official 
draft (1968), S.188. 
Anton 185. 

Vita Food Products Inc. v. Unus Shipping Co. [1939] A.C. 277 

Lloyd v.Guibert (1865) L.R. 1.Q.B. 115 at 120. 

Jones v. Metropolitan Life Insurance Co., 286 N.Y. Suppl. 
4 (1936). The Serbian and Brazilian Loans, P.C.I1.J. [1929] 
Series A, Nos. 20 and 21. 

Bonython v. Commonwealth of Australia [1951] A.C. 201 

Re United Railways of Havana and Regla Warehouses, Ltd., 
[1960] Ch. 52 at 91/92, 115 aff'd, sub nom. Tomkinson 

v. First Pennsylvania Banking & Trust Co.[ 1961] A.C. 1007, 
at 1068, 1081/1082. 

The Assunzione [1954] P. 150; 

PHOS) Wer 50S atu W775 P7958) 1954)0l ASE Retie7o.tal 289, 

Bonython v. Commonwealth of Australia, [1951] A.C. 201, 

Tomkinson v. First Pennsylvanta Banking & Trust Co., 
[1961] A.C. 1007. 

Vita Food Products Inc. v. Unus Shipping Co. [1939] A.C. 
al hs 

Boissevain vy. Weil, [1949] I K.B. 482. 

Id. at 490/491. 

Tzortzis v. Monark Line A/B, [1968] I W.L.R. 406. 
ld, at-4b1. 

Miller and Partners Ltd. v. Whitworth Street Estates Ltd. 
[1970] A.C. 583, at 603. 

Rule 127, sub-rule 1, at 697. 

a 2 ie ts eae » ra P bs 
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(1919) 17 O.W.N. 120. 
is ERT hl Fe 

In (1919) 46 0.L.R. 210 some authorities for this opin- 
ion are introduced: 

Brunsdon v. Akard (1859) 2 E.& E. 19. 

Skater v. Sunderland Corporation (1863) 33 L.J.Q.B. 37. 
R. V. Inhabitants of Birmingham (1843) 5 Q.B. 210. 
Habergham v. Vincent (1793) 2 Ves.Jr. 204, 227. 

Croker Vv. Marquis of Hertford (1844) 4 More P.C. 339. 

[1950] O.R. 317. 

Toy OU Gok. 

54 D.L.R. (2nd) 386. 
Id. at 397/398. 

for Manctoba: 

Traders Finance Corporation v. Casselman (1957) 22 W.L.R. 
625 at63l3;Trans Canada Credit Corp. Ltd. v. Prince 

(1965) 52 W.W.R. 440 at 447; 

for British Columbia: 

Sharn Importing Ltd. v. Babchuk [1971] 4 W.W.R. 517 at 
Safa fea 

for Alberta: 

See: Raise of a loan by the City of Edmonton in Switzer- 
land. For all duties flowing out of these contracts, the 
Swiss law has been chosen in the conditions Art. 13. The 
City has for this special purpose a domicile in the Can- 
adian Embassy in Berne. 

But despite of this chosen domicile, the bondholders can 
sue the City in Alberta courts; still Swiss law is appli- 

Translated from Neue Zuercher Zeitung (Zurich Journal), 
Wednesday, October 11th, 1972, Morgenausgabe Nr. 474. 

Rabel 351, et seq,; Seventh Hague Conference on Prrvate 
International Law, Draft Convention of the Law Applicable 
to International Sales of Goods, 1951, Art. 2-4, Text in 
(1952) 1 Am. J. Comp. L. 275; Gutzwiller, Bectraege zum 
Haager International privatrecht, 1951, 38; Wolff.Some 
observations on the Autonomy of contracting Parties in 
the Conglict of Laws, (1950) Trans. Grotius Society 143; 
Unger, Lige Insurance in the Conflict of Laws, (1964) 
Tooele. 4e0. 

Austita: ABGB von 1811, Artt. 36, 37. 

Belgium, Luxemburg, Netherlands: Loi uniforme relative au 
droit international prive, 1951, Art. 5. 

Brasik: Codigo Civil Brasilieiro, 1916, Art. 13. 

China: Reglement sur l'application des lois, 1918, Artt. 
23> 203 






Czechoslovakia: Law of March 11, 1948, relative to pri- 
vate international and interlocal law and the legal po- 
sitions of aliens within the sphere of private law, Art.9. 
Greece: Code Civil 1940, Art. 25. 

Italy: Codice Civile, Disposizioni preliminari, Art. 25. 
Japan: Law concerning the Application of Laws in General, 
Law No. 10, June 21, 1898, as amended by Law No. 7 of 

1942 and Law No. 223 of 1947, Art. 7. 

Mexico: Codigo Civil 1928, Art. 15. 

Convention on Private International Law (Codigo Bustamante) 
signed at Havana 1928, Artt. 3, 184, 190. 

Portugal: Codigo Comercial Portugues, 1888, Art. 4. 
Quebec:Code Civil, 1866, Art. 8. 

Second South-American Congress on Private International 
Law of Montevideo 1$40, Protocolo adicional, Art. 5. 

Belgium: see Van Hecke, (1955) Rev. dr.i.c.81 et seq. 
Franaes, /Batitteles 620. 

Germany: Gamillscheg, Rechtswahl, Schwerpunkt und mut- 
masslicher Parteimille im internationalen Vertragsrecht, 
(1958/59) 157 Archiv fuer civilistische Praxis 303 at 
304 n.6 and 7.* 

Great Britain: Cheshire-North 205. 

Seandinavia: Lando, Scandinavian Conglict of Law Rules 
Respecting Contracts, (1957) 6 Am.J.Comp.L. 1 et seq. 
Hambro, Autonomy in the International Contract Law of the 
NondiesSiatchnn( |957auA0 IeCrl..0. 589 et seq. 

United States: Editor's note in (1951) 51 Column. L. Rev. 

Supra 16 et seq. 

Supra 6. 

Supra 26. 

Supra 32 et seq. 

This example is by F. Gamillscheg, Rechtswahl, Schwer- 
punkt und mutmasslicher Partewille un internatconaten 
Vertnagsrecht, (1958/59) 157 Archiv fuer civilistische 
Praxis. 303;,at 308. 

As immanent restrictions are regarded the limitation that 
only a choice between the lex Loci actus and the Lex Loct 
solutionis or between the laws of the parties domicile 
could be possible. 

[14.937i14A.Cs 500 at.529> 

[1937] A.C. 500. 

[1902] A.C. 446 at 450. 

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ine) sak std bee ection dowd « 24d neat aahdtis es’ uino’. ~ ag 
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(1902) A.C. 446. 

In Re Missourt Steamship Co. (1889) 42 Ch. D. 321. at 336 
(1889) 42 Ch. D. 321. 

Examples by Wolff 418. 

939 AcCs 2/7 ese) WALLER. 2513. 

(1939) A.C. 290. 

These limitations had not met with universal approval: 
cf. Morris and Cheshire, The Proper Law of a Contract An 
the Conflict of Laws, (1940) 56 L.Q.R. 320; per Lord 
Denning iN Boissevain v. Weil [1949] I K.B. 482 at 

491; per Kitto J. in Kay's Leasing Corporation Vv. 
Fletcher. (1964). 116 C.L.R.. 124, at 143; but cf. per Lord 
Denning M.R. in Tomkinson v. First Pennsylvania Banking 
& Trust Co. [1961] A.C. 1007 at 1068; Tzortzis v. Monark 
Lines A/BL 1968] I W.L.R. 406 at 411. 

Legality on an international level will not touch the 
problems of creation of a contract, etc. as it does 
legality on an internal level. International legality 
is concerned with a more generous compliance of forms on 
a level of equal systems of law. 

Infra 44. 

Supra 43. 

See Morris 231. 

[1969] Qd. R. 378. 

Id. at 384. 

Tas 7ats3o5. 

In International Contracts and Party Autonomy, (1970) 19 
iG. 04010 k. 

Id. at 702-704. 

Restatement, Second, Conflict of Laws, S. 1-221, St. Paul, 
Minn. 1971. 

187. Law of the State Chosen by the Parties. 

(1) The law of the state chosen by the parties to govern 
their contractual rights and duties will be applied if 
the particular issues is one which the parties could have 
resolved by an explicit provision in their agreement 

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directed to that issue. 
(2) The law of the state chosen by the parties to govern 
their contractual rights and duties will be applied, even 
if the particular issue is one which the parties could 
not have resolved by an explicit provision in their agree- 
ment directed to that issue unless either: 
(a) the chosen state had no substantial relationship 
to the parties or the transaction and there is no 
other reasonable basis for the parties’ choice, or; 

(b) application of the law of the chosen state would be 
contrary to a fundamental policy of the state which 
has a materially greater interest than the chosen 
state in the determination of the particular issue 
and which, under the rule of para. 188, would be the 
state of the applicable law in the absence of an ef- 
fective choice of law by the parties. 
(3) In the absence of a contrary indication of intention, 
the reference is to the local law of the state of the 
chosen law. 

Supra 18. 

Te7esobsection 2, jitwa. 

187 subsection 2, lit. b. 

Restatement, Second, Conflict of Laws, comment 567. 
Duskin v. Pennsylvania-Central Airlines Corporation 

167 F.2nd 727 (1948) where the court applied local Pen- 
nsylvania law, which was chosen in a pilot's employments 
contract made elsewhere by non-residents. 

2 Rabel 429. 

187 subsection 3. 

See 2 Rabel 402. 

See Gamillscheg, Rechtswahl, Schwerpunkt und mutmasslicher 
Panteimitle im intertnationalen Vertragsrecht, (1958/59) 

157 Archiv fuer civilistische Praxis 313. 

Arret de la Cour de Cassation, 19 fevrier 1930; (1932) 59 
Clunet, Journal de droit international 90. 

Taratey ce 

Arret de la Cour d‘Appel de Paris, 19 Juin 1970; (1971) 
60 R.crit.d.i.p. 692. The parties of an agency contract 
which had connections with France and the Netherlands 
could exclude the application of French law. 

Actes et documents 225. 

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Supra 48, 
2 Rabel 431. 

Gamillscheg, op. cit. 308. 

British Controlled Oikfielkds v. Stagg (1921) 66 Sol.J. 18. 

2 Rabel 430. 


Second Subtitle: TORTS 

Foreign trade and business with foreign countries are 
increasing rapidly, people are working often abroad or for foreign 
companies, international transports are effectuated daily in great 
numbers, people are travelling abroad for holidays by plane, cars, 

ships and railways; life is internationalized. 

More and more torts are committed, which are related to 


several legal systems through the parties themselves’, the way of com- 

mittingé or the effects of the committed tort.3 

The cases become more complex and it seems that there 
are good reasons that the governing principle 'when in Rome do as the 

Romans do' is not valuable in its full extent any more. 

In the first section it will be shown that the possible 
solutions offered by the common principles are unsatisfactory. In the 
second paragraph then, it will be proved that there is need for a 
'proper law of the tort' including the parties express choice of the 
governing system of law. In the last paragraph a short conclusion will 

follow the foregoing reasoning in the first and the second part. 


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Ls Unsatisfactory Solution of the Governing Principles 

Whenever a court has to sit and to decide on tortious 
facts, which have been committed abroad, it falls to be determined which 
system of law is to be applicable to govern the duties and the rights 
arising out of such an international tort. Three possible solutions 
have been proposed and they seem to be well established. The first 
of them is the 'lex Loci deticti commissi', the law of the place where 
the wrong has been done, the second is the ‘Lex fori', the law of the 
forum where the action was brought forth, and the third is an alterna- 

tive or a cumulative application of both of these principles. 

14 The Crisis of the 'fex Lock delecti commissit! 

The '2ex Loci delicti' principle is one of the oldest 
principles in the conflict of laws and looks back to the old traditions 
at the beginning of the 13th century, founded by the 'statutists’ in 
the upper Italian cities.” It is a function of the ' locus negit actum' 
principle, referring all problems in conflict of laws concerning rights 

and duties to their origin, where they were made. 

However, like the principle of the 'fex Lock actus', 
the law of the place where a contract was made, the 'Lex Loci delictr 
commisséi' bears the same difficulties as the contracts conflict rule 
based on the place of action, namely where the exact place of the wrong 
will be. The difficulties of classifying the place of wrong, and above 
all, because it has not been classified everywhere in the same manner, 

the 'Lex Lock deLicti commissi' is a most questionable principle.° 

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A. The Place of Wrong as the Place of Injury 
In some legal systems, the 'Locus delicti', the place of 
the wrong is that place where "the last event necessary to make an actor 

n7 and more clearly, "the place 

liable for an alleged tort takes place 
where the injury occured"8. This principle, applied in an illustration 
by Rabel9, would make the law of the state Z applicable in a case where 
A might mail in X a letter containing defamatory statements about B, a 

Y resident, to C, a resident in state Z. 

This idea, that the place of injury should govern a tort 
is clearly based on the ideas that a tort, like a crime, is only commit- 
ted if an injury occurs and that therefore the tort is localized where 
this last event!9 necessary to finish the tortious act, like a finishing 
touch, occurs. Only through this last event does a cause of action arise 
and the injured person acquires, at this place and at this very moment of 

injury, an indefeasible right for damages. | 

This was the prevailing American Theory !¢ and the reasons 

why it has been abandoned are quite clear. !3 

B. The Place of Wrong as the Place of Acting 

In other legal systems, the 'Locus delicti’, the place 
of the wrong is the place where the tortious wrongdoer acted partially 
or wholly. In the example above!* it would be the state X, where the 

defamatory letter was mailed. 

The arguments pleaded in favor of this principle are 

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merely the facts that an actor, by applying the laws of the place of 
action, can count upon these laws and therefore can arrange his conduct 
according to these laws. And, furthermore, the laws, regulating human 
behavior and punishing wrongdoers, are more concerned with the acts than 
with the effects (so also the criminal law). The greater part of the 
civil law countries! define the 'lex Lock delicti' as the law of the 

place of acting. 

C. Concurrence and Alternative Application of the 
Laws of the Place of Acting and of the Place of 
Because both of the above mentioned characterizations 
of the'2ex Lock delicti'are problematic, the place of acting rule 
favouring the wrongdoer and the place of injury rule the injured, in 
an issue which should, however, be an equal and just arrangement of 
interests, the German Reichsgericht !© and the Swiss Federal Tribunal’ 

developed an alternative application of the two principles. 

Both acts and effects are equal parts of a tort, and 
'no tort without tortious act and no tort without injury' is a well 
known maxim, and it seems therefore, to be quite clear, that in the 
conflict of laws the injured person, the disadvantaged person, can 
choose one single or combined application of laws of the place of 

action and the laws of the place where the injury occured. 

In this sense, however, the law of the place of acting 
would favour the actor and it is possible that at this place the act 

he has done is not wrongful but at the place of the injury, it is cause 

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for an action to recover damages. On the other hand, the law of the 
place where the injury occured would preserve the injured person ac- 
cording to his own social environment, he will be protected by his own 
laws and can protect himself within the possibilities offered by his 

Own laws. 

However, the laws of the place of action could be more 
favorable for the injured, therefore it would be just and fair that he 

can choose the law which favors him as an injured person. '8 

Db. 7 Inferences 

The application of the 'Lex Loci delicti commissc' in 
so many different ways, and it would be easy to add other specified 
characterizations of the '@ex Lock! rulel9, creates an uncertainty 
within this rigid rule. The application of the laws of the place of 
injury on the one hand and the law of the place of the actions on the 
other hand to solve the conflicts problem of a specific case could lead 
to the possible application of two different laws.22 Which one of these 
two laws has a right to govern the case in question? None of them, be- 
cause both of them represent two equal parts of the wrong, namely the 
action on the one hand and the injury on the other hand. This is the 

crisis within which the ‘Lex Lock delicti commissi' finds itself. 

The crisis of the rule in its environment is shown by 
the facts that the 'fLocus delicti' more and more represents a factor 
of a minor importance as to the whole tort situation. The ‘territor- 
jal sovereignty' over a tort in today's system of the conflict of laws 

no longer claims power to govern obligations merely because they were 


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born within the territory in question. Furthermore, the rule does not 
pursue the postulate of justice in the conflict of laws in the cases 

where no social relationship to the place of the wrong ever existed. 

The ‘Locus delictt' in the complexity of today's inter- 
nationality, is often accidental and does not justify the application 
of the 'Lex Lock delicti'. In this sense transport accidents, which 
are by far the majority of tort cases which occur today, may happen in 
a country to which none of the parties involved have a connection, 
except that the accident happened there. An aircraft may be hijacked 
on a flight from New York to Mexico and crashed in the Canadian Rockies; 
a motor accident may occur in Portugal, involving an American and a 
Canadian, the one with Italian, the other with German international im- 
matriculation plates on their cars, because they “bought their cars 

duty free in Italy and Germay.2+ 

The application of the 'Lex Locr delicti' is even less 
justified, when parties are involved in a tort case, who have some kind 
of a relationship to each other. This relationship could be the same 
domicile or residence2¢ or the infamous driver and his guests and other 

special relations like common employment 24 and common excursions .2° 

All these examples show that a rigid rule, and that is 
what the 'lex Lock delicti commissi'represents, would cause more in- 
justice than would be desirable for the security of the law. Territor- 
jal sovereignty which is represented by the exclusive application of 
the 'Lex Loct dekicti' in iieernationel torts, is in today's tendency 

of internationalizing the social environment impossible and would, in 

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regard to conflicts, be a reversion to 18th and 19th century principles. 

oe The Crisis of the ‘Lex fort! 

Another solution to solve the choice of Jaw problems in 
tort cases is to apply the 'fex fort’ as the law of the place where the 
action was brought, regardless of the international connection the case 
in question might have. The 'fex gort' rule which has been abandoned 
centuries ago in the domain of contract, marriage and divorce, property 
and wills, is nevertheless still a prevailing rule moving like a ghost 

through the international law of torts. 

A. Basics and Origin of the 'Lex fori’ Principle 

The articles and books written by the German author 
Carl Friederich von Savigny<’, which were based on ideas of Carl Georg 
von Waechter2’ had a great influence not in fact in their own country 
but more so abroad and especially in the courts of England. The de- 
cision of the Privy Council in The Hakley 28 sitting as a court of 
appeal from the Court of Admiralty, was obviously the basis for the 
foundation of the lex fort rule in England and in the British Common- 
wealth. In this case it was held that a British ship owner was not 
liable for the consequences of a collision between his ship and a 
Norwegian vessel in Belgian territorial waters. The collision was the 
result of a negligent act of a Belgian pilot. According to the laws 
of Belgium, the ship owner is liable for any act the pilot was doing, 
even if he is a compulsory pilot, as in this case; but according to 

the English law he was not liable. English law was applied as the law 

of the forum where the action was brought. The underlying basis for the 

decision was that the court disliked the idea that a ship owner (a 


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British ship owner?) should be liable for a pilot whom he had not 

chosen and over whom he had no eontre) 62 

The application of the 'ex fori’ alone and as an exclu- 
sive test in torts cases has been overruled in Phillips v. Eyre where 
Cockburn C.J. said that the 'Lex gorct' rule would lead to"the most 
inconvenient and startling consequences" .34 Since this decision was 
made, the '2ex fori! rule is still the major rule to be applied in a 

tort case, but its hegemony is broken.°¢ 

It is however, still a primary 
basis for decisions in the United Kingdom and the Commonwealth, °° be- 
cause only a tort case, which is actionable according to the 'Lex 

fort' can be brought before English and Commonwealth courts. Thus, the 

"Lex fort' still plays the dominant role. 

B. Reasons in Favour of the Application of the 
"Lex fort! 

The reasons brought forth in favour of the ‘Lex fort! 
are not sound. The links of the law of the forum with the criminal 
law is one of the historical roots of the '£ex gorct' rule in conflicts, 
but the thinking of C.G.v. Waechter was directed to situations which 
have no relations to today's torts situations. He was fixed in events 
like duels and provocation from France over the river Rhine to Germany, 
and at this time, very few international relations were established. 34 
The close connection between the liability for crimes and the liability 
for civil torts has been asserted in the Court of Appeal decision of 
the Machado v.Fontes case.3% Not only the ideas of a connection be- 

tween the criminal law of a single jurisdiction and an international 

3 g20V0"q 

lenot jaan: va? erey 1 ets 

tort, problems which cannot be dealt with at this point, but also 

the whole attitude towards the general purpose of the law of torts 

has changed. This general attitude is that it is not a civil punish 
ment any more. One learned writer3® has said "the law of torts is 

to secure a man's indemnity against certain forms of harm, not because 
they are wrong, but because they are harms" is not a valid statement 

any more. It became more an adjustment of economic and social interests 
than a punishment and an “instrument of distributive rather than of 

retributive justice" .3/ 

It has often been said that the rules of torts are man- 
datory, that they ave jus cogens and that they have, therefore, the 
exclusive power to govern a case in torts which has been brought before 
the forum in question. A primary objection to this statement is that 
the law of torts neither in internal nor in international law is abso- 
lutely mandatory. persorewerening into a voluntary relationship 
quite frequently make agreements considering the assumption of risks 
or exemption clauses to what would usually be a breach of duty; and 
furthermore these agreements are not contrary to public policy.°° 
Even if it were against ‘internal public policy’ it is a commonplace 
that it would not be consequently against public policy on an inter- 
national plane. It may be necessary sometimes to deny a foreign tort 
claim because its enforcement would be contrary to the public policy 
of the forum, but to make a rigid rule out of an exemption, merely be- 
cause foreign law could differ from the ‘ex forci', would be narrow- 
minded. "We are not so provincial as to say that every solution of 
a problem is wrong, because we deal with it otherwise at home", said 

Cardozo J. in Loucks v. Standard 0i2 Co. of New York.°* 

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A third argument in favor of the application of the 
"Lex fort' is that the ‘Lex fort'is the only constant connecting fac- 
tor between all the others ‘accidental’ and 'fortuitious' and ‘arbi- 
trary' connecting factors, the ambiguity of the 'Lex lock delicti 


commisS4' Include The fact that a rigid rule cannot satisfy the 

requirements of a conflict rule for torts in the complexity of today's 

world will be proven later. 1! 

The difficulty of proving foreign law before the courts 
is nowadays no reason of value in favor of an exclusive application 
of the 'Lex fort', Since information and experts in foreign law are at 
hand. 44 Another problem, which will only be mentioned here, is that 
“an English court has jurisdiction to award damages for any tort, 

which is actionable according to English law, and for no other tort" 489 

It is, however, not a test of jurisdiction, as stated 
by Lord Wilberforce in Chaplin v. Boys 4: "T accept what I believe to 
be the orthodox judicial view that the first part of the rule is laying 
down, not a test of jurisdiction, but what we now call a rule of choice 
of law; is saying, in effect, that actions on foreign torts are brought 

in English courts in accordance with English law". 

This opinion is well established in the Canadian Courts 

also. 7° 

C. Reasons Against the Application of the '2ex fort! 

One of the weightiest attacks against the 'Lex fort! 

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as the applicable law, if it is not the unfitness of a rigid rule, is 
that the application of the 'Lex forxc'opens the door to an easy ‘forum 

_ shopping'. It seems to be quite easy to find some connection to es- 
tablish the jurisdiction of a suitable forum "where the law was more 
fayorable...than in the place of the wrong, provided that...the defend- 
ent happened to be present" ,46 A striking example of a case of forum 
shopping is Liegg v. Patmer’? a case decided by the Quebec Queens Bench 
Court. In this case, an action was brought in Quebec by a domiciled 
Ontarian for damages caused by a car accident in Ontario, while he was 
a grati tous passenger in the car of an Ontario domiciled driver. The 
action was brought while the defendent stayed in Hull, Que. "En prin- 
cipe, les tribunaux d'un pays sont incompétents pour juger un proces 
entre étrangers; mais cette incompétence n'est ni absolue ni d'ordre 
public; et c'est ainsi, par le procédé qu'elle (the plaintiff) a employe, 
que ja demanderesse a pu soumettre son litige a nos tribunaux", was the 

opinion of Rivard .4° 

ah. The Double Rule 

Since the famous double rule laid down by Mr. Justice 
Willes in 1870 in Phillips v. Eyre 49 the English and the Commonwealth 
courts follow the test of a combination of the 'Lex fori’ and the 'Lex 
Lock delicti commissi'’ : "First, the wrong must be of such a character 
that it would have beenactionable if committed in England....secondly, 
the act must not have been justifiable by the law of the place where it 

was done" 9° 

Throughout the hundred years of the application of that 

rule, it has been severly criticized.°! This after all, is not sur- 

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prising considering the crises in which the 'Lex fort’ and the 

‘Poxhboadrdéliatorconmssed* find ithemselvesso* 

It is not appropriate 
to criticize the rule at this place, and the Canadian application 
thereof°? in the more recent cases.°* The Canadian decisions, in some. 
sense sailing a wind coming from the south, the United States ,°> showed 
some effort towards an application of a .new approach to torts problems. 
The higher courts in the provinces and the Supreme Court of Canada how- 
ever, still feel bound by the rule in Phellips v. Eyr0?? and recently 
by Chaplin v. Boys .0/ 298 This tendency towards another, more flexible 
approach to the torts problems in conflict of laws and the knowledge 
that only one general rule governing all kind of foreign torts is 

unsatisfactory showed clearly that it is no longer possible to solve 

these problems with the double rule. 

II. The Proper Law of the Tort 

In the first part of this subtitle it has been explained 
that the governing principles in torts are not satisfactory. The rules 
which apply, the 'fex lock delicti' as well as the 'Lex fort’, cannot 
render justice to the complexity of the cases today, nor can an 

alternative or a cumulative application of both these principles. 

Because these principles are unsatisfactory, a new ap- 
proach has to be found in this second part of the subtitle. This new 
approach is well known as the ‘proper law of the tort’. It is not ap- 
propriate to deal with the proper law theory in extenso at this point, 
but merely to show some advantages and disadvantages of the rules and, 

furthermore, to follow the idea of a proper law of the tort to an end. 


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This end, logically deduced from the proper law theory, will be found 

in the application of the law expressly chosen by the parties. 

Some conclusions will follow in the third part of this 


ik The New Approach 

It is obvious, and the recent cases°9 have proven that 
the old concepts have to be re-examined. The modern way of living, 
doing business and the modern technology are only part of all the 
factors which increased the volume of cases on international tort li- 
ability. A new approach has to be found, an approach which leads to 
just results taking into consideration all circumstances, not only the 
places of actions (the place of the wrong as well as the place of the 
claim), but also the social environment, the social factors of the 

tort in general .©9 

The 'Lex Loci delicti commisséi' as a general rule has 

therefore been Pacer 

The new approach has been found in the famous expression 
‘the proper law of the tort'.62 A proper law approach in this sense 
would furnish a flexible rule, able to render adequate decisions to the 
most different tort problems. The factors of a tort, which should be 
taken into account to determine the 'ex causae'’ are in this idea, the 
place where the injury occured, the place where the conduct causing 
the injury occured, the domicile, nationality, or place of incorpora- 
tion and place of business of the parties, and the place where the 

relationship, if any, between the parties is centered.°° 

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Still the 'Lex Loci delicti commissi' seems to be the 
prevailing rule. The only reason for its first place would be the 
fear that the judges and the greater number of lawyers are not shocked, 
because they still base their ideas of conflict of laws on the old 

ex Loci dekicti' rule. 

In the meantime, the Conference of Commissioners on 
Uniformity of Legislation in Canada prepared a Tentative First Draft 
of a Foreign Torts Act 64. 

1. "When deciding the rights and liabilities of the 
parties to an action in tort, the court shall apply the 
local law of the state which has the most substantial 
connection with the occurence and with the parties re- 
gardiess of whether or not the wrong is of such a 
Character that it would have been actionable if commit- 
ted in this Province. 

?. "When determining whether a particular state has a 
substantial connection with the occurence and the par- 
ties, the court shall consider the following important 

(a) the place where the injury occured; 

(b) the place where the conduct occured; 

(c) the domicile and place of business of the par- 
ties; and 

(d) the place where the relationship, if any, be- 
tween the parties is centered. 

3. "When deciding which state, among the states having 
any contacts within Section 2, has the most substantial 
connection with the occurence and the parties, the court 
shall consider chiefly the purpose and policy of each of 
the rules of local law that is proposed to be applied." 
This First Draft is obviously based on the Restatement 
of the Conflict of Laws, Second, prepared by the American Law Institute, 

and does not accept the common residence of the parties involved. 

The recent development however, is jaid down in a more 

liberal and happier proposition, prepared by the Quebec Office of 

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Revision of the Civil Code: 

Extracontractual civil liability is governed by the law 

of the domicile (habitual residence) of the plaintiff 

at the time when the act which caused the damage occured 

However, the defendant may raise a defense based on the 

lawfulness of the act which caused the damage and the 

absence of an obligation to repair it according to the 
law of the place where this act occured. 

Unfortunately, a most questionable proposal was made by 
the Hague Convention on the Law applicable to Traffic Accidents of 
October 1968, 07 still applying the ‘Lex Loci delicti commissi' as the 
major rule. In its Art. 3 it says: "The applicable law is the internal 

law of the state where the accident occured". 

The following Art. 4 and Art. 5 state only certain excep- 

tions to this basic rule. 

On the other hand, the Swiss Federal Road Traffic Code 
of 195868 provides that the Swiss judge applies Swiss law to ciaims 
arising from accidents outside Switzerland caused by motor vehicles or 
bicycles which have Swiss registration plates or other marks of Swiss 
registration, provided the victim is a passenger for hire or reward 
whose journey begins or is intended to end in Switzerland, or, and this 
seems to be much more remarkable, ©9 if he is resident in Switzerland at 

the time of the accident.7° 

All these attempts towards a more appropriate and flex- 
ible solution of the torts problems are very helpful on the way towards 
a just solution of the problem. Some unsatisfying factors however, are 
still inherent, in all of them. The best way by which the expression 

the ‘proper law of tort' can be summarized is that it is the law with 


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which the parties and the acts done have the most significant connec- 


Pa Justification for the Search for a More Flexible Rule 

To judge the value and the necessity of a more flexible 

rule its advantages and the disadvantages, compared with the old rigid 
rule of torts, have to be examined and the result wil] show whether 

the application of the new approach is justified. 

A. Advantage of the Proper Law of the Tort 

Comparing the proper law of the tort with the rigid rule, 
it is quite obvious that the rigid rule offers a certain security; the 
teste; the lex focr apbiars and the '£ex gonri' are easy to make and 
to apply. In this sense the result will be certain; but is it also 


A rigid rule cannot take into account all factors, the: 
casualty of the places of wrong and injury; the rigid rule cannot do 
justice to the single case. More unsatisfactory and hard solutions 
Will be attained than the requirements of certainty and security would 


A flexible rule alone is socially convenient. The 
social factor, the motive of the acting, the whole circumstances mostly 
are located elsewhere than the well known places of the wrong of the 
injury will be found. A flexible rule, only, eliminates these acciden- 

tal and fortuitious factors through an analysis of the acts. An ade- 



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quate decision, from the social and economic points of view, can only 
be reached by applying a flexible rule. Furthermore, this approach is 
applied by the internal law as well. The internal law considers the 

social and the economic factors as main points of a just decision. 

The primary goal of private international law is not only 
security as to the rule which should be applied. Its primary goal is, 
above all, to reach just results, the uniformity within the decisions 
and not within the rules, the certainty in the question of what to 
expect and not what will be applied, andeche predictability of the re- 

These objects are achieved only by applying a flexibie 

rule, by applying the proper law of the tort. 

B. Disadvantages of the Proper Law of the Tort 

The main disadvantage of the proper law of the tort ap- 
pears to be, that the general uniform rule will likely to be split up 
in a thousand different conflicts sub-rules, especially designed to 
cover every possible tort situation and every tortious act which could 
happen./¢ Each of these rules would conform to a single case and will 
render a just result. The uniformity of the proper law rule will be 

totally lost. 

C. - Conclusion 
The overwhelming advantages of the proper law rule as a 

rule of the most possible conformity to the modern conditions and tort 

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situations, but the inherent danger, that a uniform rule could be 

split up in several sub-rules, which on the one hand would lead to just 
results but on the other hand would cause a disastrous confusion in the 
conflict. of laws in torts, is leading to the conclusion that the proper 
law rule is to be restricted to a choice of law between the systems of 
law which have the most significant relation’3 to the occurence and the 
parties, or where a ‘grouping of contacts'’4 indicates a determined SyS- 

tem of law. 

This idea has also been stated in Boys v. Chaplin by 
Lord Wilberforce”: "If one lesson emerges from the United States de- 
cisions it is that case to case decisions do not add up to a system of 


With such a solution, the necessity of predictability 
of the applicable law and therefore the predictability of the result, 
is satisfied; a problem which is, because of the antinomy between cer- 
tainty and justice in private international law,/® one of the most 

difficult goals to attain. 

= Consequences 
If the rigid rule of the 'lex Lock delicti' and of the 

"Lex fort' as well as a combination thereof, have to be abandoned in 
favor of a proper law of the tort, as it has been described in the 
first part of this chapter, the proper law of the tort has to be speci- 
fied. The common residence, the common domicile, and the accessory 

connection of the tortious situation to contracts have to be considered. 


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This reasoning and the arguments raised in this part will lead, finally, 
into the main problem of this chapter, the application of the express 

choice of law by the parties involved in tort situations. 

A. Common Domicile and Common Residence of the Parties 
Involved as a Choice of Law Connection 
It is common knowledge that, once the conflict rules of 
the place of wrong and the forum are given up// and the ‘proper law' 
applied, the common domicile or the common residence, the common place 

of carrying business are likely to determine the applicable law. 

Attention will not be called to these problems, 
since the purpose of this chapter is to show that there exist different 
possibilities to make the proper law work. It will merely be mentioned 
in this context, that the law of the common residence must be favored. 
The law of the domicile or the law of the nationality appears to be less 
convenient to solve torts problems in an adequate manner. In the law of 
torts, domicile and nationality may be as ‘accidental’ and 'fortuitious' 
as the place of the wrong and, after all, the domicile and nationality 
principles play a minor role in the conflicts of torts; it is not so 
decisive as in the conflicts of domestic relations and succession. 
Torts happen within the social environment of the parties involved, 
they happen by means of and because people are living. A foreigner 
usually adjusts his behavior according to the laws of the country where 
he lives, although he personally can live according to his 'Lex patriae', 
but socially he has to satisfy the rules of conduct of the society within 
which he lives. Torts rules regulate the wrongs done and their conse- 

quences according to the social environment and the "wrongdoer as well 

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as the injured party use (for the activity as well as for the suffering) 
to start from the view of their daily milieu, that means their ordinary 

reasidence™.’ © 

Furthermore, the parties involved usually bring their 
claims before the courts of their residence. In such an application of 
the law of the common residence, it will be of no importance whether 
the parties met before, whether there exists another link, like a common 

excursion, or if they met accidentally, by the first time because of an 


It is, after all, in the parties' interest, that the com- 

mon law of their residence will be applied. 

In this sense, the same result would have been achieved 
in McLean v. Pettignaw’ ? without masking the influential policy con- 
siderations by resorting to an artificial technicality "This solution 
seems to be happier than the proposed Tentative First Draft of the 

Foreign Torts Act.8! 

The same results would have been reached in a more ele- 
gant manner and without artificial constructions in Chaplin v. Boys®? 

and in Babcock v. aebsone ce 

The same solution as above stated is also provided in the 

eae eteederal Road’ icartic. code Art sesull 

B. Torts in Connection with Contractual Duties: The 

‘Proper Law of the Contract’ Applies .°° 

Some times it may not be quite clear whether respons- 


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ibilities and duties arise out of contractual violations or whether 

it is a real tort situation. 

Torts situation have been solved by applying the ‘proper 

law of the tort', a proper law, influenced by the social circumstances 


of the committed tort. Another possibility in judging upon the tort 

Situation could be by applying a proper law influenced by the legal 

circumstai:ces. In municipal law, claims for damages can be based on 


both, contractual and tortious liability. Furthermore, the legal 

relationship between the parties involved can be considered as a de- 

cisive relationship regarding the choice of law according the the proper 


law rule 2 and the legal link between the wrongdoer and the injured 

party may call attention to the law which governs the contractual rela- 

tion as in employment contracts? in transportation contracts 72 and in 

other eaneractas? 

In the case Walpole v. Canadian Northern Rackways ‘Saat 

a resident of the Province of British Columbia was killed in that Pro- 
vince in the course of an employment by the CNR company. His wife sub- 
sequently went to the Province of Saskatchewan and sued there under the 
Fatal Accidents Act of the Province, under which an action can be main- 
tained only if the deceased person could have maintained an action and 
recovered damage. Common employment is not a defense in Saskatchewan. 

The effect of the Workmen's Compensation Act of British 
Columbia and particularly of s.11 sub-s 1 was that the 
deceased, who was resident and employed in British Col- 
umbia, held his contract of employment subject to the 
double condition -first, that he should be entitled to 
compensation for accidents, however caused, and, secondly, 
that he should have no other remedy. These conditions 
were, by virtue of statute incorporated in his contract, 
and were binding upon him wherever his action might be 

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brought; and if he had lived and had himself commenced 

negligence, the condition would have been a sufficient 

answer to"hissclaime, GP... 

The '2ex causae' of the contract would govern the tort 
situation in such cases as well. Why should a tort claim, arising out 
of a contractual relationship, be governed by a different system of law, 

where in private international law enough difficulties already exist, 

and anyhow the consistency of caselaw is in danger? 

Claims for damages within the family are usually governed 
by the law which regulates the domestic relationship and that law applies 
wherever the accident may occur. This law also governs the question of 

. the immunity of family members .2 

The proper law of a tort based on a pre-existing legal 
relation promotesa desirable security within the private international 
Jaw and ancillary questions can be dealt with by applying the same 


Questions of characterization and especially problems 
arising out from the relation between contracts and torts in cases 
where a motor-accident insurance is involved could be solved in a most 

95 It is well known that the courts of this country 

suitable manner. 
have evaded the 'Lex fori' principle by artificial constructions of 
contract situations in cases of motorcar accidents involving a driver, 

a host and an insurance company. This actually happened in Key v. Key?® and 
in Assad v. Latendresse?! but has been rejected and replaced by an even 


more artificial approach in McLean v. Pettigrew. In this case a Quebec 

resident invited another Quebec resident for a trip in his motorcar to 

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Ontario. The guest suffered injuries caused by an accident in the 
Province of Ontario. The courts held, that there is no contract be- 
tween a driver and a gratuitous passenger. But then, it was held that 
the defendent's act was not justifiable in the ground that he was crim- 

inally liable under Ontarian law, even though he had been acquitted. 

Why must this complicated and artificial construction of 
some kind of a contractual relationship between the driver and the guest 
be established, if it would be much easier to connect the tort situation 
to an existing contract, e.g. the insurance contract between the driver 

and his insurance company? 

C. Express Choice of the Proper Law of the Tort by the 
Once the proper law theory finds its application within 

the conflict: of torts, its importance and range has to be examined. 

Referring back to the 'proper law of the contract’ it 

99 The first branch 

has been defined that this rule has two branches. 
covers the express choice of law by the parties; while the second branch 
was to be applied in the case where no express choice was effectuated. 
In this latter case, the law which has the most substantial and the 

closest connection to the facts and to the issues in question was to 

govern the contract. 

Within the tort situation, it has been admitted that the 
foreign tort has to be governed by the law which has the most signifi- 

cant relation between the cccurrence and the parties involved or the law 



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designated by a grouping of contacts. !0 

Within the proper law theory explained in the first sub- 


, the second branch of this theory would only be covered by the 
tort rule. Therefore, it should be determined whether an application 
of the first rule which would consist in an express choice of the 
proper law of the tort by the parties, could be justified and whether 
ijt would be judicious to solve the torts crisis in the conflict of laws 

by means of a subjective choice !94 

of the applicable law. 
The courts' decisions to date, do not touch the question 
and neither statutes nor civil law codes provide much assistance. Only 


a few of the academic writers have considered the question; the rea- 

son therefore might be found in the fact that torts are often dealt with 

104 and that within the law of 

within the law of obligations generally, 
obligation, an express choice of law by the parties has been dealt with 
almost exclusively in the law of contracts. Furthermore, the express 

choice of law by the parties is a subject which has been under discus- 

sion for a few decades only and it has been accepted as a governing rule 

principle, and in contracts exclusively, within the last few years only. 

Therefore, the reasons for and against such an approach 
in torts have to be considered and a conclusion on these facts has to 

be made. 

(a) Reasons for Approval of the Possibility of 

Applying the Law Chosen by the Parties: 

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In the case where no authority and no statute per- 
mit an express choice of law by the parties in international relations, 
it is advisable to refer to the appreciation of interests within the 
internal law. This method has been proven valuable and legitimate to 
show that in contracts the principle of private autonomy in internal law 

leads to the principle of party autonomy on the international plane, o> 

The law of torts in domestic law leaves the parties 
a wide sphere of action, although the tortious liability arises 'ex Lege". 
“Because the law of torts is basically ‘cus dispositivum',in opposition 
to ‘ius cogens', the injured party can renounce an action of damages, or 
he can bring it forth for a limited amount or liability can be excluded 
in advance, or even the law itself may set time limitations for ooneh 

Hence, the 'bonnes sete 0 and legislative Acts can limit private 

autonomy in torts, as they do in contracts. 

Once the concept of private autonomy is admitted in in- 
ternal law, it is a small step to make in giving approval to the ideas 
of an express choice of the governing law for multi-jurisdictional 


Furthermore the parties have a legitimate expectation 
that their legal relations will be judged by application of a system 
of law with which both judge and parties are familiar. The parties 
are best qualified to determine to which system of law the tort sit- 

uation has the most substantial connection. 

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Such a solution provides in a satisfactory manner 
for security in application of a rule of law and for the goal of real- 

izing personal freedom as an idealistic value in a system of law. ae 

(b) Reasons for Rejecting the Possibility of Apply- 
ing the Law Chosen by the Parties: | 

A strong argument against the application of the law 
chosen by the parties to govern their multi-jurisdictional torts is that 
the parties find themselves obligated not voluntarily and by agreement, 
as is the case in the law of contract, but in an arena tary manner. 
Therefore, a public interest exists, that everybody conducts himself 
according to the rules existing at the place of action, may he appear 
as tortfeasor, as acting in self defence or as an intervening spectator. 

Therefore, and because the rights of third parties! !9 

may be involved, 
it can be deduced that the parties should have no possibility of in- 

fluencing the law governing the ‘involuntary relationship’. 

Another argument against the extension of the party 
autonomy principle into international torts may be that some rules of 
torts are absolutely mandatory. These tort rules are then of an ‘in- 
ternal order public’. It is however, a common place, that rules which 

enjoy the position of internal public policy do not gain this status 


on the international plane automatically. And even if these rules 

were absolutely mandatory, it has been established that the principle 
of the choice of the proper law includes the evasion of the 'as-such 

applicable Law' including its 'tus cogens' in oppostion to the prin- 


ciple of incorporation of foreign law, and that the chosen law, the 


"Lex causae', will be applied including its 'Xus cogens'. 

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(c) Conclusion: 

It is obvious that even if there exist mandatory 
rules in torts, they will not affect an express choice of law by the 
parties, based on the party autonomy principle. The chosen law is ap- 
plicable, its 'ius cogens' included, because the mandatory rules of 

the 'as-such-applicable Law' are evaded. 

It has been said that the public interest requires 
an application of the "ex Loci delicté commissi'. The parties interest 
may make an exception where parties with the same residence are involved 
and actions for damages arise out of a tort committed abroad. In this 


case the parties' interest would prevail. 

Basically the parties' interest is respected by al- 
lowing the parties involved to choose the system of law to govern sit- 
uations with which they are closely bound up, a system of law to which 
both parties and the cause of action are closely connected. Why should 
the door leading to the application of the party autonomy principle in 
torts, the door which stands slightly open, not be opened totally? 
Claims for damages due to personal injury, personal harm and physical 
injury are mostly subjects of a highly personal character and surely 

within the parties' interest. 

It is legitimate to draw an analogy to the law of 
contracts, and probably advisable. Although the obligation of contracts 
supposes a party agreement, the obligation of a tort arises 'ex Lege’; 

the breach of contracts and the breach of duties however, are basically 


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treated equally and show no doctrinal differences. '!° 

In international law the ‘Lex Loci actus’ was a 
decisive principle in both, contracts and torts. In torts alone the 
‘ "Pox Loci actus’ rule still is decisive in the form of the 'Lex loc 
delicti commissi'; but the application thereof has much been critic- 
ized! '® If the fixed principle of the ‘Lex Loct delicte COMMLASL! 
should be abandoned, the logical reasoning should be followed to the 

end of the application of the flexible rule of the proper Jaw including 

the parties express choice of the applicable law. 

Such a choice of law could be made in advance, 
the parties entering in any kind of relation simply make an agreement 
like a suspensive condition that, if any claim for damages arises out 
of a tort, the action should be governed by the law of the state X. 
Often the parties could designate the law governing a contract already 

existing between them. 

In most cases such agreements could be made at the 
beginning of the trial, when all the parties involved are known and the 
proper law of the tort can be determined properly. The majority of 
cases would be settled out of court by applying the law chosen by the 


As in contracts, the choice will be qualified so 
as to protect the weaker party, third parties or the insurance company 
against abusel!® The concept of public policy will fulfill this duty 

in general. 

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Dre Summary and Conclusion 

It is obvious that neither the 'Lex forc' or the 'Lex 
Lock delicti commisséi'! nor a combination of both of them can solve the 
problems posed by the modern tort situation on an Pecesntioet | plane. 
A new approach has to be found, and a more flexible and 'just' solution 
which takes all the circumstances of a case and especially the social 

environment into account, has been found in the 'proper Jaw of the tort’. 

The proper law of the tort is the law to which the par- 
ties and the occurrence have the closest and most significant connection, 

or where a grouping of contacts indicates a particular system of law. 

Consequently, this most significant relation or indicat- 

ing contact will be- 

- in the first place, the express choice of a system 
of law by the parties; 

- secondly, the accessory connection to a legal relation 
already existing between the parties (employment con- 
tracts, domestic relations, sales contracts, etc.); 

- thirdly, the law of the common residence; 

- and finally, the place of the wrong. 

The only restriction on this application is the general 

rule of public policy. 


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Footnotes to Chapter Three, Second Subtitle 

le They may have different domiciles, be resident in differ- 
ent countries, running business in different places, etc. 

f. The wrong is done in one state but has its effects in 
another state, e.g. by means of broadcasting or tele- 

he As for instance for problems arising out of a car acci- 
dent, where the insurance is carrying business in a com- 
pletely unconnected location. 

4. Supra:17 Rabel 235. 

a. Supra 32. 

6. Jenner v. Sun O£42 [1952] 2 D.L.R. 526; Original Blouse 
Co. v. Bauck Mills (1963) 42 D.L.R. (2d) 174; Abbot- 
Smith v. Governors of University of Toronto (1964) 45 
D.L.R. (2d) 672; Thompson v. Distillers Company (Bio- 
Chemicals) [1968] 3 N.S.W.R. 3. 

ie Restatement (1934) 377. 

8. Restatement, Sécond, Conflict of Laws, para. 145, S.2(a). 

a. 2 The Conflict of Laws 301. 

10. Therefore this theory is usually called 'the last event 

Lig The question still remains which law would be applicable 
if A was poisened in X, but dies only in Z. 

ee. Leflar American Conflicts Law, (1959) 317 et seq. with 
indication of cases and literature; in the same sense 
Batiffol, Droit international prive, (1967) 601,608; 

'Il semble donc preferable d'appliquer la loi du lieu du 
dommage', with cases. 

13. Infra 62 et seq. 

14. Supra 60. 

15. See Raape, Internationales Privatrecht, (5th ed. Berlin/ 
Frankfurt, 1961) 536; Balladore Pallieri, Diritto inter- 
nazionake privato, (2nd ed. Milano, 1950) 253; French 
and Italian courts and the Code of Czechoslovakia and 
Greece, see 2 Rabel 303, 304. 

16. Reichsgericht 54, 198 at 205; Bundesgerichtshof in Neue 

Juristische Wochenschrift 64 at 2012. 










Schweizerisches Bundesgericht, BGE 22, 1164; BGE 82 II 
163; BGE 87 II 115; BGE 91 II 123, 446. 

Kegel, Internationales Privatrecht, (3rd ed. Munchen, 
1971) 266, cites a case decided by the Oberlandesger- 
icht, Saarbruecken, Neue Juristische Wochenschrift 58, 
752 in which a French powerplant produced smoke and sock 
on the French bank of the river Saar which interfered 
with a German gardenrestaurant on the other bank of the 
river. A French law was applied because it favoured 

the injured party. 

2 Rabel 306. 
See example supra 61. 

A most famous example for such a sitution is the case 
Reich v. Purcell 432 P. 2d, 727 (1967) where a motorcar 
accident occured in Missouri, the parties involved were 
residents of the States Ohio and California. Chief Jus- 
tice Traynor based his judgment on the governmental 
interest theory and applied the law of Ohio which did 
not limit the amount of damages. 

For comments see Cavers, Cheatham, Currie, Ehrenzweig, 
Leflar and Weintraub, (1967-68) 15 U.C.L.A. Law Rev. 551. 

M'ELtoy v.M'ALister, [1949] Sess. Cas. 110 in which case 
a Scotsman, employed by a Scottish firm, when riding in 

a truck on the firm's business was killed in an accident 
caused by the fault of the firm's driver. The only con- 
nection with England was that the accident occured in the 
English County of Westmoreland. 

See also Swiss Federal Road Traffic Code Art. 85 II tngra 
ero dR 

Babcock Vv. Jackson,12 N.Y. 2d 473 (1963), but see Dym v. 
Gondon 16 N.J. 120, (1965); Kell v. Henderson, 270 N.J.S. 
2d 552 (1966) ,which, however, is considered as one of the 
‘forum shopping'examples. 

M'Efnoy v. M'ALister [1949] Sess. Cas. 110. 

Mueller v. Marx BGE 66 II 165. The Swiss Federal Tribu- 
nal applied Swiss law as the 'Lex loci delicti’ rather 
than French law, in case where a French lady travelling 
in a French motorcoach owned by a French firm was killed 
in a crash between the bus and Swiss Federal Railway in 
Switzerland because of the French driver's negligence. 

Savigny Systems des heutigen roemischen Rechts, Bd. 8, 
(Berlin 1849) 275 et seq. 

ih erat 






Waechter, Ueber die Collision der Privatrechtsgesetze 
verschiedener Staaten, (1841) 24 Archiv fuer die civi- 
listische Praxis 230 et seq. (1842) 25 id. 1,161,361 

and 392: 'The judge must punish in accordance with the 
laws of his own state crimes committed abroad over which 
he has jurisdiction. In the same way, he must, as a rule, 
determine exclusively in accordance with the same laws 

the private law consequences of delictual acts committed 
abroad! (translated). 

(1868) | Roepe los. 

Kahn-Freund, Delictual Liabibity and the Conflict of Laws, 
(1968-I1) 124 Receuil des cours 20. 

(1869) L.R. 4 Q.B. 225 and aff'd in (1870) L.R. 6 Q.B.1. 
(1869 My Rata 70/28 9289. 
Infra 69 et seq. 

For Canadian cases see: 
O'Connor v. Wray [1930] 2 D.L.R. 899 at 912. 

Simonson V. Canadian Northern Ractways (1914) 17 D.L.R. 516. 

Young V. Industrial Chemicals Co. Ltd.[1939] 4 D.L.R. 392. 
For approval obcter: 

Canadian National S.S. Co. v. Watson[1939] 1 D.L.R. 273. 
McLean v. Pettignew [1945] 2 D.L.R. 65 at 77. 

See also Crépeau, Views from Canada (1971) 19 Am. J. Comp. 
aa Fe 

See Kahn-Freund, loc.cit. 21; Nadelmann, International 
Developments in Choice of Law Governing Torts, (1971) 19 
Am. J. Comp. L.let seq. 

De Nova, Historical and Comparative Introduction to the 
Conflict of Laws, (1966-I1) 118 Receuil des cours 435. 
(1897) 2 Q.B. 231. 

Holmes, The Common Law, (1881) 144, et seq. 

Morris 251. 

Fleming, The Law of Torts (3rd ed. 1965) 256 et seq. 
224 N.Y. 99, 120 N.E. 198 at 201 (1918). 

Supra 59 et seq. 

Ingra 69 et seq. 

Despite the American case Walton V-Anamco 223 F(2d) 941 
in which the plaintiff lost a case, unable to prove 

Saudi Arabian Law. See also Abu Dhabi Oi] Arbitration 
[1951] I.L.R. 144. 





a fe 






See in this context for more details Kahn-Freund, op. crt. 
29 et seq. 

Chaplin v. Boys [1969] 2A11 E.R. 1085, at 1098F. 

Canadian National Steamship Co. Ltd. v. Watson [1939] 
S.C.R. 13; O'Connor v. Wray [1930] 2 D.L.R. 912; Story v. 
Stradford Mike Building Co. (1913) 11 D.L.R. 49 at 51. 

Hancock, Torts in the Conflict of Laws, 54 et seq. 
(1937) 63 Que. K.B. 278. 

Id. 284. 

BLOM wlUIRS 6e02Be 1k 28/29; this rule has been affirmed in Boys v. 
Chaphin [1971 JA.C. 356. 

Lorenzen, Tort Liabsikhity and the Conslict of Laws. 
(1931) 47 L.Q.R. 483; Lorenzen, Selected Articles on The 
Conflict of Laws 376; Hancock, Torts in the Conflict 

of Laws 89; Dicey and Morris 922; Morris 262; Cheshire- 
North 263 et seq; Morris,The proper Law of a tort (1951) 
64 Harv.L.Rev. 881 et seq; Fridman, Damages for ‘foreign 
tonts' (1967) 117 N.L. Journal 1128. 

Supra 59 et seq. for the 'Lex forc' and 64 et seq. 
"Lex Lock delicti commissc'. 

Castel, Conflict of Laws - Torts - Time for a Change, 
(1971) 49 Can.Bar Rev. 632; Clarence Smith, The Foreign 
Torts Act: Look Before You Leap,(1970) 20 U of T.L. Journ. 
81; McGregor, The International Accident Problem, (1970) 
33 Mod.L. Rev. let seq. 

Grontund v. Hansen (1968) 65 W.W.R. 485, 69 D.L.R. (2d) 
598 and revision thereof SCBC in (1969) 68 W.W.R. 329, 
4 D.L.R. (3rd) 435; Le Van v. Danyluk and Danyluk 

75 W.W.R. 500. 

Esp. Babcock V. Jackson (191) N.E. (2d) 279 (1963). 
(1S7O}aWeRIG6: Oc Beet . 
[1971] A.C. 356. 

In this sense see Baer, Conflicts of Laws - Tonts - A 
Blind Search for a 'Proper' Law,(1970) 48 Can. Bar. Rev. 
161; Castel and Crépeau, Views fxom Canada, (1971) 18 
Am.J. Comp.L. 17,25, et seq. and Castel, Conflicts of 
Laws - Torts - Time for a Change, (1971) 4g Can. Bar 
Rev. 632. 













Supra, n.6. 

Morris, The Proper Law of a Tort, (1951) 64 Harv.L.Rev. 
881 et seq, | 

Castel, Conflict of Laws - Torts - Time for a Change 
(1971) 49 Can. Bar Rey. 635. 

In detail, Morris, The Proper Law 0f a Tort, (1951) 64 
Harv. L. Rev. 881, et Seq. 

This is the proposition of the Restatement, Second, Con- 
Clict.of awsesS- 145" 

Proposed 1966 by Dr. Read. Text in (1971) 19 Am.J. Comp. 
DY Sh. 

See also Hancock, Torts, Problems in Conglict of Laws 
Resokved by Statutory Construction: The Hatkey and Other 
Older cases Revisited, (1968) 18 U of T L.J. 331 and the 
application of these principles at 334-340. 

Text in (1971) 18 Am.J.Comp.L. 33; (1971) 49 Can.Bar Rev. 

English text in (1968) 16 Am. J. Comp. L. 589. 

Bundesgesetz ueber den Strassenverkehr (SVG) vom 19.12. 
1958, (Amtliche Sammlung 1959, 679). 

Kahn-Freund, Delictual Lteability and the Conflict of 
Laws, (1968-11) 124 Receuil des cours 17. 

Art. 85 II SVG: 
Verursacht ein mit gueltigen schweizerischen Kontrol]- 
schildern oder Kennzeichen versehenes Motorfahrzeug oder 
Fahrrad einen Unfall im Ausland, so wendet der Schweizer- 
ische Richter die Haftpflcht- und Versicherungsbestimmun- 
gen diese Gesetzes an auf Ansprueche 
a) aus dem Schaden von Personen, die mit einem sol- 
chen Motorfahrzeug gegen Entgelt befoerdert wur- 
den und die Fahrt in der Schweiz angetreten haben 
oder beendigen wollten, 
b) von Geschaedigten, die zur Zeit des Unfalles ihren 
Wohnsitz in der Schweiz hatten. 

Lord Denning M.R. in Sayers Vv. International Drilling Co. 

With this argument the proper law of the tort has been 
severely criticized by Wengler, Festschrift Rheinstein, 
1(1969) 316 N.30; Kegel,The Crisis of the Conflict of 
Laws, (1964-11) 112 Receuil des cours, 95, 180 et seq. 











Heini, Bemerkungen zut schweizerischen Rechtsprechung, 
ZSR n.F. 86(1967) I 265 et seq,; DeNova, Conflict of 
Laws and Functionally restricted Sustantive Rules, 
(1966) 54 Calif.L.Rev. 1569; Eek, Babcock in Sweden, 
(1966) 54 Calif.L.Rev. 1575; Karsten, Foreign torts and 
English Courts,(1970) 19 1.C.L.Q. 45. 

Restatement, Second, Conflict of Laws, para. 145. 

Babcock Vv. Jackson, 12 N.Y.2nd 473, 191N.E. 2d279 (1963). 
Boys Vv. Chaplin, [1968] 2 W.L.R. 343. 

Generally regarding the antinomy between certainty and 
justice in private international law and the necessity 

of an exchange; see in detail and convincing, Neuhaus, 
Law and Contemporary Problems (1963) 28 at 795 

Castel, Conflict of Laws - Tort - Time for a Change, 
(1971) 49 Can. Bar Rev. 632. 

Schoenenberger, Zuercher Kommentar zum Schweizerischen 
Zivilgesetzbuch, V/la (1961) N 328. 

PiSaS ies.0_ Ra oc. 

Castel and Crépeau, Views from Canada, (1971) 19 Am. J. 
Compa LSB het seq. 

Supra 71. 

ALogbAsG, 356. 

191 N.E. (2d) 279 (1963). 

Supra 72, 

See Kahn-Freund, Delictual Liability and the Conflict 
of Laws, (1968-II) 124 Receuil des cours 129: 'Escape 
into Contract?' for a more detailed and convincing ex- 

Supra 73. 

Pollock,Torts 4323; Fleming, Torts 432, 

Supra 74, 

See e.g. Walpole y. C.N.R. [1923] A.C. 113; 
McMillan y, C.N.R.[1923] A.C. 113. 

See e.g. Kilberg vy. North East Airlines 172 N.E. (2d) 
526 (1961); Nagtalin v. London Midland and Scottish Rail- 
ways (1933) Sess. Cas. 259. 








As sales contracts, deposit contracts, etc. 
[V923\ cavers. 

Emery v. Emery 45 Cal.2d 421, 289 P.2d 218 (1955); 
Thompson Vv. Thompson 105 N.H. 86, 193 A.2d 439 (1963); 
and see Jayme, Interspousal Immunity: Revolution and 
Counterrevolution in American Tort Conglicts, (1967) 40 
So.Cal.L.Rev. 307 et seq.; Felix, Interspousal Immuncty 
in the Conflict of Laws: Automobéhe Accident Clauns, 
(1968) 53 Cornell L.Rev. 406 

Collins, Interaction between Contract and Tort in Conglict 
Ohss! Gis 196 Lee 6 ahoCr 1.04103 

(1920s oor One LeRoecae. (Ont. App. Uiv.). 

(1941) 79 S.C.R. 286. 

(9945 abaal oleok fp09 al Sines) « 

Supra 32 et seq. 

Supra 72, 

Supra 69 et seq. 

Supra 15 et seq. 

Bourel, Les Conflits de Lois en matiénre d' obligation 
extracontractuelle, (Paris 1961), 18 denies such appli- 
cation of the express choice of law by the parties be- 
cause of the absolute rigid character of the tort rules. 
Lamaire, Het Nederlands .Internationaal Privaatrecht, 
(The Hague 1968) 285 gives approval without further 

Kropholler, Ein Anknuepgungssystem fuer das Deliktsrecht 
(1969) 33 RabelsZ 601 et seq. 

See e.g. Cheshire-North 197. 

Supral6. et seq. 

For many, see Clerk & Lindsel on Torts (13th ed. 1969): 
Volenti non fit injuria, para. 95 et seq. 

Morality or high principles which are general guidelines 
for the living together. 

Oftinger, Schweizerisches Haftpflichtrecht, Band I, 452: 
‘Where the parties can exempt or restrict the tortfeasors 
liability, an express choice of law must be permissible; 
where, however, an exemption or a restriction is inadmis- 




Sible, Swiss law cannot be excluded by stipulation 

Supra 15 et seq. 

e.g. insurance companies 
Supiza 30 

Supra 23 et seq. 

Supra 18 et seq. 

Supra 24 et seq. 

See also Prosser, Borderland ) Tort and Contract, in 
Select Topics on Torts, Ch. 7 (1953). 

Supra 29. 

Panchaud, in Actes et Documents de La XI eme Session de 
ka conference de La Haye en Dracit International Prive, 
III, 1970, 206, '995 out of 1000 automobile accident 
cases were settled out of court last year’. 

See e.g. an example by Neuhaus, Die Grundbergrif fe des 
Internationalen Privatrechts, (Berlin/Tuebingen 1962) 

N. 420: Provision on a steamboat ticket: 'In the case 

of a conflict of laws, the ship and the shipper enjoy 

the most favorable law’. 


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This third subtitle deals with special aspects in Family 
Law as they might be brought about by marriages and matrimonial causes 

with foreign elements. 

In the first part of this chapter, the nature of the matri- 
monial relationship will be examined and according to its special con- 
cept, it will be characterized regarding to its legal and social effects. 
In the second part then, the formation and the dissolution of the mar- 
riage will be examined in the light of whether the parties’ influence 
on the choice of law process might contribute to a more adequate solu- 
tion of these problems, if a choice of law question does arise at all. 

A conclusion will follow as a third part. 

i The Nature of the Matrimonial Relationship 
Legal relations in matrimonial law. are a mixture of many 
different legal components, having effects not only in the legal but 

-also in the social sphere of society. 

First of all, a marriage is formed as if it were a simple 
contract, whereby capacity and compliance with the local form seem to 
be the only decisive aspects thereof; it seems to be a simple agreement 

between the two parties to marry each other. 

In a normal and ordinary contract, such as a contract for 
the sale of goods or an employment contract, this agreement will not 

have any influence on persons other than the contractors. It also is in 





v3 iF 285 wed 


i their discretion to end this contractual relation, which happens 
automatically in a sales contract by exchanging the relevant goods 
against an adequate compensation, in the labor contract by a contrary 


This is not the case in a ‘marriage contract'. Although 
marriage originates in a contract, it is a contract 'sui generis', it 
does create rights and duties not only between the two parties, but 
furthermore, it creates a status that also affects the society to which 
the two parties belong. Marriage is to be recognized by all members of 
that society, and husband and wife enjoy a particular status within this 
society. They are, as founders of a family, the cornerstone of this 


The ‘marriage contract' furthermore is a contractual agree- 
ment on which "no condition can be attached and no qualification can 

é Therefore it follows that no limit of duration 

be made on its effect". 
can be set upon this agreement®and marriage and matrimonial relations 

are regarded as ‘legal relationships of long duration’. 

Marriage is not to be dissolved by a contrary agreement 
between the parties. Marriage can be dissolved on the basis of defects 
only.” Marriage normally finds a natural end, it is dissolved by death. 
It is the same relationship of long duration and constancy as father- 
hood and sonship.> All these matrimonial and family relations will be 

incapable of being dissolved by the parties’ own will. 


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However, this idea of marriage as a permanent matrimonial 
relation has been weakened by the generous application of divorce 
grounds by the courts, which attitude could lead to an acceptance of 

divorces by parties' consent. 

Nevertheless, marriage creates a status of matrimonial re- 
lation which has its influence on and is influenced by an interior 
factor, namely the living together in the family as a home and place 
of constancy of the younger generation as the children of the marriage; 
and it has influence on and is influenced by the society in which hus- 
band, wife and children live: they have their social functions as a 
cornerstone of a society to form the community and the nation they live 


Therefore, matrimonial legal relations bear a strong per- 
sonal intrinsic value, they are mostly concerned with intimate personal 
questions. This might also be the reason that generally the ‘personal 
law' of the parties governs the matrimonial legal relations. The per- 
sonal law can be the law of the parties’ domicile, the law of their na- 

tionality or of their common residence. 

The application of the 'personal law' bears difficulties 
and it does not generally render justice to the interests of the matri- 

monial relation as such nor to the parties' interest. 

First of all there is the difficulty in solving the question 
of which law will be the 'personal law' out of the different approaches 
proposed and applied; the law of the domicile, the law of the national- 

ity or the law of the common residence of the parties. 

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Furthermore, none of these three possible: approaches does 
justice to the social and personal interests which are inherent in the 
matrimonial relations. The 'personal Law’ is easily changeable; domi- 
cile, residence and even citizenship can be altered easily and without 
difficulties concerning the respective official bodies. The matrimon- 
ial relations characterized as legal relations of a long duration, 
Should be governed by the same law as long as they exist and they 
Should not be subjected to different legal systems whenever the parties 

change their domicile, residence or nationality. 

Sometimes however, it is obviously in the parties' interest 
to abandon a certain domicile, a certain citizenship to which they are 
bound 'de <ure', but 'de facto' no longer have any relation to that 
state. Refugees escaping out of their native country are followed by 
the laws of the country, with which they wart to interrupt any kind of 

relation. This is an unacceptabie hardship. 

On the other hand, a 'personal Law' based on the law govern- 
ing.the relationship since it came into existence can show hardships too. 
A system of law to which the parties and the matrimonial relation do not 
have and never had any other connection other than that that system of 
law just happened to govern the relation at the time when it was founded, 
surely cannot be regarded as a law which really has a real and substan- 

tial connection with the relation and the parties concerned. 

Furthermore, the ‘personal Law' governing matters with 
regard to the whole family, husband, wife and children is based on the 
person who is the absolute sovereign in family matters, namely the hus- 

band. There is, as in archaic times, no question of equal rights in 

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regard to decisions within the family; the husband and fathers word is 
decisive, Equality of rights in conflicts of laws seems never to have 

been in question. 

All these contradictory bases of the application of a 
'nersonal Law'show undoubtedly that such a law cannot be considered as 
an appropriate and just solution, which after all, should be a primary 

goal of asystem of law and especially of conflict of laws rules. 

Despite the fact that there are strong personal intrinsic 
values, it can never be derived therefrom, that the parties alone have 
an interest in the legal qualification of their relationship. Community, 

society and the state they live in have a specific interest in the 
matrimonial relationship and characterize the relation not oniy as 

legal but also as sociological. And therefore, it will. never be in the 
parties' discretion alone to exert influence on the legal system that 
should be applied. The interest of the society as a third party has to 
prevail and a rigid rule, even if the application thereof brings some 
inconveniences has to be retained. The personal law of the parties, 

the law of their domicile alone, fulfills the standards set by the 
social structure of the family and the community and the difficulties 

in applying the domicile maxim have to be taken into account as a neces- 

sary evil. 

II. The Problem of the Governing Rules 

Under this subtitle, special problems out of the family 
conflicts of law will be dealt with and it has to be determined if a 
"proper Law of fantly nekations' could be found, justified and intro- 

duced into the existing conflict rules. 




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1. Marriage 

The contract in which marriage originates differs fundamen- 
tally from a mercantile contract.° Although the formation thereof is 
similar, for the parties have to have capacity to enter such a contract 
and the local forms as to the formation have to be respected, the ef- 
fects of this contract are directed towards a change of status and in 
the special case of the 'marriage contract! directed to the acquisition 

of the status of marriage. 

Therefore, the nature of this contract is characterized 
by the interest the society and all the members of the community have 
in it. Therefore, the formation, extent and dissolution of this 
special contract is strongly controlled by the ‘personal Law' of the 


The interdependence of contract and status and the nature 
of the matrimonial relationship demand that this type of contract has 
to be treated differently. 

Awe eCapacity 

The law governing capacity of the parties to be married has 

been split up into two theories. 

The old idea that the'ante-nuptial domicile' should govern 
the questions related to capacity of the persons to be married has been 
embarrassed by the so called 'matrinonial domicile’ theory, meaning that 
the law of the intended matrimonial domicile, the law of the country 
where the parties want to live after the marriage ceremony, should govern 

questions of capacity. 

erag ais To \ioage 
Baar ; 


(a) The 'Antenuptial Domicile’ Theory 

The 'antenuptial domicite' theory or the'dual domiccle 
theory’ ‘says that the lex domicilii of each party must be satisfied and 
the marriage will be invalid by incapacity of the person contracting the 
marriage agreement. This principle is well settled,° but suffers from 
disadvantages which may cause deplorable situations and may "cause in- 
justice of a particularly pernicious kind" .? The most obvious situation 
may be that the ‘'antenuptial domicile' rule can be easily evaded by 
choosing a domicile whose laws do not bar the intended marriage. These 
problems were adjudicated on in the case R. v. Brentwood Superintendent 

10 In this case an Italian 

Registrar of Marriages, Ex. parte Arias. 
national domiciled in Switzerland had been divorced at Berne from his 
wife who was Swiss both by nationality and domicile. By Swiss law capa- 
city to marry is governed by the national law of the parties. There- 
fore,the wife, qua.a Swiss national, was free to marry again and had 

done so; but the husband was not, since in the eyes of Italian law his 

marriage still subsisted. 

In order to circumvent this disability the husband and 
his fiance, a Spanish national domiciled in Switzerland, came to England 
where they proposed to marry and then to return to Switzerland. The 
registrar refused to issue a certificate or license on the ground that 
there was a lawful impediment to the marriage in that the man lacked 

capacity to marry by his 'Lex domicrlic’. 

This case shows not only the problems of evasion of law but it 
introduces also the problem of the "public concern of the country of his domi- 

cile!! where such nationality would govern. Galli the Italian national, wanted 


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to stay in Switzerland for the rest of his life and therefore, the 
Italian state had no concern with the social morality of the marriage 
of this its citizen at all. Only the country where the married couple 
wants to live has an interest in the effectiveness of the valid mar- 


Furthermore, the "technical Domicile does not always 

represent one's home" !4 

and due to the uncertainty which is produced by 
this distinction, it can happen that a marriage will be treated as 
valid in one but as invalid in another country. This is the case when 
either of the parties abandoned his domicile of origin and shows no 
intention of ever returning, but is at the moment uncertain where the 
permanent home will be established. During his temporary stay in 

X a person gets married. Which will be his domicile for purposes of 

capacity to enter into a marriage? 

(b) The 'Intended Matrimonial Home'Theory 

The tendency today drifts towards a new approach which 
takes into account not only legal reasoning but also sociological argu- 
ments. This theory wants the law of the 'cntended matrimonial home' 
to be applied. "Marriage is an institution that closely concerns the 
public policy and the social ie 1m of the state", !9 jt has therefore 
to be adjudicated upon with regard to the laws of that state where the 
parties live and set up their home. This seems to be in accordance 


with the law governing commercial contracts. Even in Savigny's time 

it seemed to be that "the law of the husband's domicile should be de- 

cisive because the wife moves to the domicile of the husband’. 

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However, it might be said that it would be impossible 
to predetermine whether a marriage will be valid or whether it is void 
at the time of the act of celebration. | But a possible answer might 
be that, if the place of the future home is doubtful, it is presumed 

to be the domicile of the husband at the time of the marriage. 7 

Neither of these two theories is entirely satisfactory. 

ut8 the Royal Commission on 

Therefore, and to "mitigate any hardships 
; Marriage and Divorce proposed an alternative test for the parties' 

If the marriage is alleged to be void on another ground 

than that of the lack of formalities, that issue shall 

be determined in accordance with the personal law or 

laws of the parties at the time of the marriage (so 

that the marriage shall be declared null and void if 

jt is invalid by the personal law of one or other or both 

of the parties); provided that a marriage which was cele- 

brated elsewhere than in England or Scotland shall not 

be declared void if it is valid according to the law of 

the country in which the parties intended at the time 

of the marriage to make their matrimonial hong and 

such intention has in fact been carried out. 

This recommendation excludes the criticism brought 

forth and the validity of such a foreign marriage is not in doubt. 

(c) Inferences 

The ‘antenuptial domicile’ theory is conclusive. There 
is no question of a parties' intention nor an express choice of law 
governing the marriage. The law of the parties' domicile before the 

ceremony is decisive on its validity. 

The Antended matrimonial home' theory, however, pro- 
vides some scope for a choice of the governing law as to capacity for 

the parties. It is in their discretion to choose the country where 

they want to establish their home. However, one cannot look at it as 
party autonomy, as is the governing principle in international contracts 
and soon will be in torts. First of all the parties social environment 
is more concerned than the two domains dealt with in the previous chap- 
ters. It seems to be not so easy, to live in Timbuktu and to establish 
a matrimonial home there, just because the laws of that place are more 
convenient. Furthermore, public policy plays a fairly different role 

in family law than it does in contracts, for personal relations of a 

"mostly" long duration in a social environment are concerned. 

The common law courts did finally decide which of the 
rival theories is most suitable and should therefore prevail. But 

still both opinions are represented and respected. 

The ‘'antenuptial domicile’ theory was clearly 

20 In this case, a female British subject domi- 

supported in Re Patne. 
ciled in England married 1875 her deceased sister's husband, a German 
subject, who lived for some time shortly before the marriage and con- 
tinued to live in England. According to English law, a marriage be- 
tween a woman and her deceased sister's husband was prohibited, but by 
German law it was allowed. The courts, in this case Bennett J. adopted 
the ‘'antenuptial domicite' theory and held the marriage to be void be- 
cause of the woman's incapacity to marry according to her '‘antenuptial 
domicile’ law. This theory has been approved expressly in other cases 

in England” and in Canada .2¢ 

The ‘intended matrimonial home' theory has been sup- 

ported by an Australian case in the early 1870's. In the Wikl of Swan 



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a marriage was celebrated on a temporary visit in Scotland, the parties 
being domiciled in Victoria. The marriage, if valid, would revoke a 
will made by the husband before the marriage. The bride was the hus- 
band's deceased wife's niece and, although the marriage was voidable 
according to Victoria law, it was void according to Scots law. The 
marriage was held valid and the will revoked on the basis of the "in- 
tended matrimonial! domicile. Molesworth J. said "...the policy of the 
occurrence of such marriages and their results, should depend, I think, 
upon the laws of the country of the parties in which they are afterwards 

probably to liver 24 The ‘intended matrimonial home' was Victoria. 

Unfortunately, for years and years, the supports for this 

29 but in a most recent case, the 

theory have only been made 'obctetr' 
High Courtdecided the question whether of the two theories should pre- 

vail in favor of the intended matrimonial domicile theory. 

This theory has been approved for the first time 
'verbis expressis' by the Family Division in Rawdan v. Rawdan No. 2,26 
In this case Cumming-Bruce J.refers 'in pean to both the theories re- 
garding a wife's capacity to contract a polygamous marriage.<’ After 
"grasping the nettle" he decides in favor of the '<ntended matrumontat 
home’ theory on the following reasons: "And my conclusion is that the 
wife had the capacity to enter into a polygamous union by virtue of her 
pre-nuptial decision to separate herself from the land of her domicile 
and to make her life with her husband in his country where the Moham- 
medan law of polygamous marriage was the normal institution of mar- 


riage”. A wise, respectful and elegant decision. 

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Finally, it has to be said that an express choice of 
law by the parties entering into a marriage contract has no direct 
influence in the choice of the law of the matrimonial domicile, FOE Tt 
demands that the requirements of establishing a domicile are satisfied, 
it is therefore not merely a pure question of will. Furthermore, the 
parties should have no direct influence on the law governing relations 
which are more than a simple contract, but affect the whole social en- 
vironment and the special nature of the long duration relationship. 

B. Formalities 

If one rule in private international law is well 
settled and no question arises on its value and effects, the rule 
that the law of the place where the marriage takes place should be 
satisfied as regarding to the formalities of the celebration act: 
"Locus negit pene This maxim means that the 'Lex Loci celebra- 
tionis' shall determine whether the marriage is valid or void with 
reference to its form. If the marriage is valid according to the law 
of the place of celebration it will be valid all over the world, 22 
and if it is invalid according to the forms of the 'Locus', jt will not 
be recognized even if it would be valid according to the law of the 

parties domicile.> 

This maxim is imperative on the international level?” 
no question of choice of law arises, the 'ex Lock celebrationis' governs 

the formal validity of the marriage éovitracte > 

However, there are some exceptions to this rigid 
statement. The two statutory exceptions and the common law exceptions 

do not however , affect the statement that the rule of the ‘Lex Lockr 

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celebrationis' is of an imperative character, they are merely apparent. 

As a first exception it has been said that where no 
local form exists, >" or where the use of the local form is inappropriate?” 

a 'common Law marvttiage' would be recognized as valid in England. °° 

The two statutory exceptions, the Foreign Marriages 
Acts 1892 and 1947 avoid doubts and uncertainties which can arise when 

marriages are celebrated in foreign countries. 

A marriage celebrated in an embassy or a con- 
sulate before a marriage officer need not conform to the form require- 
ments of the local law?’. The second statutory exception deals with the 
marriages "within the lines of the British army serving abroad". This 
includes, since the Foreign Marriage Act 1947 s.2, "marriages solemn- 
ized in any foreign territory by a chaplain serving with a part of the 
naval, military or air forces of His Majesty's serving in that terri- 

tOKY = 

Nevertheless, the choice of law question does not 
arise and even the statutory exceptions do not weaken the 'Locus rule! 
which is imperative on an international level. Therefore, an express 
choice of law by the parties will never be a question. This is also 

the law in Canada. 3 

However, the 'Lex Lock celebrationts' again plays a 
dominant role in the question of the characterization of the marriage 
as to its monogamous or polygamous character, and the rule is not 



There is some support that the ‘matrimonial domicile’ 
law should determine whether a marriage is monogamous or polygamous 
through the reasoning that usually questions regarding the status of 
a person are dealt with by the law of his domicile. And because mar- 
riage contracts affect the status of husband and wife, the 'Lex domict- 
ii" should determine the character of such a union. Even some judi- 

cial support has been given to this view.°° 

However, and as interesting as to the solution of status 
problems the idea would be, the application of the 'Lex domicihic' is un- 
sound and creates difficulties as to persons married and asking for 
matrimonial relief in a country recognizing a monogamous marriage only, 
-but domiciled in a country regarding the marriage as potentially poly- 
gamous .°” Furthermore, a marriage concluded in a Canadian registrar 
office could be a polygamous marriage. Thus, where both marriage types 

are recognized, the 'fex Locr celebrationts' should characterize the 

legal nature of such a marriage. 

Therefore, the view has to be approved which permits the 
characterization of the marriage as polygamous, potentially polygamous 
Or monogamous in the discretion of the 'Lex Lock celebrationts'. The 
judicial support is obviously on the side of the 'Lex Loct celkebrationts' 
and only the clearest authority should change the 'ex causae' in such 
an important matter, important not only for the parties concerned, but 
also for the issues of such a marriage and furthermore for the whole 
sociological bases and notions of the marriage as a social institution. 
As long as Hyde v.Hyde 40 is in effect, the nature of a marriage is to 

be determined according to the ‘Lex Loct eelebrationis'.41 

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Finally, it can be said, with Cumming-Bruce J. that 
"nersonal intention is irrelevant to the legal consequences of a validly 

celebrated marriage". 

This statement can be applied to the question of for- 
malities in general and it can be said therefore, that the choice of 
law question in general and the question of the parties’ influence on 
the law governing the formalities of their marriage in particular does 

not arise. 

Only the rigid rule, the 'Lex Lock celebrationts' can 
satisfy the postulate of clarity and security in the applicable law, 

which are requirements of a primary order in private international law. 

G: Inferences 
The question whether an express choice of law by the 

parties can be applied in problems of the formation of a marriage must 
be answered negatively, although it seems that the ‘intended matrimonial 
home! rule favors the parties' influence into a choice of law question. 
However, this is not the case; the requirements of establishing a domi- 
cile have to be satisfied, and therefore, the compliance with the rules 
for the formation of the marriage is no longer purely a question of the 
parties! will, but it becomes a question and a criterion which seems 

to be as strong as the principle of the close and real connection.» 
With regard to the formalities and the determination of the nature of 

the marriage, the 'lex Lock celebrationts' is a rule with an inter- 

national imperative character. 

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Although the parties, the husband and the wife, and ques- 
tions of a highly personal character are concerned, the parties are de- 
prived of having any influence as to the determination of the Lex causae 
at all. Due to the special nature of the matrimonial relationship and 
in deference to the demands of society, the ‘personal Law' and the local 
forms have to govern. 

Ag Matrimonial Causes 
Matrimonial causes are defined as actions for nullity 

a The question of choice 

of marriage, divorce and judicial separation. 
of law in English ae international law has never been prominent in 
matrimonial causes proceedings. Once jurisdiction has been assumed, the 
English courts are likely to apply the "Rex fori' exclusively as the 
proper law for matrimonial causes. Jurisdiction thus, is based on 
domicile or residence in England, and by means of these factors, the 
parties have a close connection to the 'Lex causae'. 
A. Divorce and Judicial Separation 

It is a well known principle in common law, that in 
divorce proceedings and in actions for judicial separation no choice 
of law problems arise and that divorce or judicial separation have 

always been treated as purely jurisdictional questions. ' 

(a) Divorce Proceedings 
Once the court itself has assumed jurisdiction, 
a law other than that of the forum has never been applied. "There is 
little judicial discussion on this issue and no explicit choice of law 
rules has been established. The reason is, presumably, that at common 
law only the courts of the domicile had jurisdiction and accordingly 

applied their own law without comment "76 


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(i) ‘Lex fort’ or 'Lex domicitii' applied by the 

However, the question remains without answer as 
to whether the law applied by the courts is to be characterized as 
"ox fort ' or as ‘Lex domicihit'. The qualification of the "Lex causae' 
in divorce proceedings as ‘ex fort' can be supported by good reasons 
like "the question whether the court will dissolve a marriage is one 
that ‘touches fundamental English conceptions of morality, religion 
and public policy’, and one that is governed exclusively by the rules 
and conditions imposed by the English legislature". / On this view, 
no consideration of foreign factors can be made. Through the applica- 
tion of the ‘Lex fori' as the law exclusively governing the divorce 
proceedings, the fact that the ground for the divorce arose, while the 
parties were domiciled outside the jurisdiction, is irrelevant because 
the application of foreign law, in this case the foreign domicile, would 
not be possible. There can, therefore, be no question that the miscon- 
duct is treated as a ground for divorce only if it is recognized by the 
‘Pex fori'. Ina first case, if an act complained of is lawful at the 
place of the parties’ domicile but unlawful at the place of the forum, 
it would be a sufficient ground for a successful divorce setione ~ On 
the other hand, if an act were unlawful at the parties’ domicile, it 
would have no effect on the refusal of a relief in a later divorce action 

if there were no ground recognized by the ‘lex fort’. 

The qualification of the ‘ex causae’ in divorce 
proceedings as ‘Lex domicitic' can be supported by the well known rea- 

son that the personal law should govern questions of status.’ The 

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predominant justification for this qualification is that not only has 
the question of the parties' relationship with each other and the 
society to be adjusted, but also financial and liability aspects have 

to be satisfied. In such a case however, a divorce could not be granted 
if the ground for the divorce is not known by the law of the parties 
domicile, even if the law of the forum knows it,” or a decree should 

be granted even if the 'fex fori' did not recognize the ground, but the 
unlawful act, unlawful by the ‘lex domicilii' has been committed at the 

parties' domicile and is recognized there as a sufficient ground. 

The question seems to be decided upon in favor of the 

oI Since Zanekhi V. Zanekeir® a case in which a deserted 

"Lex fort'. 
wife was granted a divorce according to English law ('Lex forti') al- 
though the law of her domicile, which followed her husband's and was 
Italian at the time of the proceedings, did not know of such matrimon- 
jal relief. This statement has been confirmed by the Matrimonial Causes 
Act 1965.°9 Thus if a wife petitions foe a divorce on a ground recog- 
nized by the law of England, but not recognized by the law of her hus- 
band's (and therefore hers also) domicile, the court has power to grant 


In continental courts however, foreign law has often 
been applied in divorce proceedings. Divorce questions have been de- 
cided according the the 'ex patriae' of the parties, and in these 

cases, a choice of law question was necessary.>" 


(ii) The Divorce Act 1968 and Foreign Factors 
In Canada, the Divorce Act 1968 contains no choice 
of law provision?> and confirms by omission rather than by specific 

provision the general common law rule.°° 

However, there is an inherent 
choice of law problem which has its origins in the fact that a wife can 
acquire a separate domicile for divorce purposes 2” Therefore, it may 
occur that the law of the wife's domicile and the law of the husband's 
domicile do not contain the same grounds for divorce. ~ It has to be 
suggested that the law of the forum should govern in such a case, as is 

provided for by the English Matrimonial Causes Act °° 

Moreover, the 
residence requirements of Section 5 ensures a significant relation and con- 
nection between the petitioner and the forum and reduces the danger of 
'fonum shopping’ to a minimum. The question of a 'nenvoc' never arises 

if the ‘Lex fort' is applied and practical and social reasons support 

this exclusion of a choice of law strongly. The proof of foreign law 

and evidence thereof might be almost impossible in divorce procedures 

and the parties may not possess the necessary funds to cover such costs. 

This situation has been contested in Myanduk v. 

Moataee se The Supreme Court of Alberta held that the foreign factor 
(the parties former domicile in Poland) in a divorce proceeding is ir- 
relevant at the forum. The husband, while domiciled in Poland committed 
adultery. At a later date he acquired a domicile in Alberta and the wife 
commenced a divorce proceeding basing her action on the husband's adul- 
tery committed while the parties’ domicile was Polish. The ground for 
‘the divorce had arisen outside the jurisdiction and the court did not 

regard as relevant the foreign facts nor did they consider the nature 


of adultery according to Polish law. The divorce was granted on the 

basis that adultery is a ground for divorce according to Alberta law. 

The application of the ‘Zex gord'in divorce actions 
can be sufficiently justified. The parties have a close connection to 
the Alberta forum through their domicile and the decision would primar- 

ily have its effects within the social environment. 

The question of choice of law is answered in favor of 
the '£ex fori' or, moreover, it can be said, that the question of a 
possible choice of law does not arise. Furthermore, the separate domi- 
cile is acquired only for jurisdictional purposes and has therefore, 
neither a direct nor an indirect influence on the choice of law process. 
Therefore, and because the parties cannot have a direct influence on 
the dissolution of a relationship which has not only a personal but 
also a social character an express choice of law by the parties wil] 

never influence a choice of law question. 

(b) Judicial Separation 

Once the court is satisfied that it has jurisdiction, 

60 V a court will 

referring to the parties' residence or domicile® 
automatically apply domestic law. This view is supported by the same 
bases as the 'fex fort’ principle in divorce proceedings and there is 
even stronger evidence that the 'fex causae' is to be characterized as 

62 The main reasons are that 

"Rex fori' and not as ‘Lex domicilit'. 
the courts "would not allow a husband domiciled in abroad to exercise 

any authority or force over his wife which could not lawfully be exer- 

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cised by a husband domiciled in England" .°° 

It has been said that divorce proceedings and actions 
for judicial separation are treated as purely jurisdictional questions. 
Once the court has satisfied its jurisdiction over the issue, based on 
the residence or the parties' domicile within the jurisdiction, the 
choice of law question does not arise. The reasons mentioned for div- 
orce proceedings are good reasons for the actions of judicial separa- 
tion as well. The ‘Lex foni' governs all the substantial questions, 
and foreign factors are disregarded. Although the issue of actions 
for judicial separation is strongly in the parties’ interest, they can 

have no influence in the choice of law. 

B. Annulment of Marriage 
In suits for nullity, the distinction between a choice 
of law and choice of jurisdiction is generally neglected. Once, the 
court is satisfied on the questions of jurisdiction, the domestic law 


will be applied. Jurisdiction is based on domicile or residence of 

the parties within the jurisdiction or on one of the statutory exemp- 

69 In ana- 

tions of the Matrimonial Causes Act. 1965 s.40 (a) and (b) 
logy to the proceedings for divorce, the ‘lex fori’ has been applied 
and it seems that English authorities support this view°® and a choice 

of law question is ignored. 

Such an ignorance of the choice of law question is 
incompatible with the idea of private international law and it is 

"particularly regrettable that the personal law should be deprived of 

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{ts control over the married status. Presuming that domestic law is 
the same as foreign law unless evidence to the contrary is led should 

be no reason for a judge not to call for such evidence ,"°/ 

The question of annulment of a marriage is closely 
connected with the formation of the relationship and the validity, 
generally speaking, regarding forms is governed by the ‘Lex Loct 


celebrations ' and the validity regarding capacity by the law of 


the ‘intended matrimonial home’. A physical incapacity or the lack 

of consent however, is governed by the ‘Lex fort’. 

These solutions are reasonable and need no more sup- 
port. The conclusion thereof is that as with the question of estab- 
lishing the relationship, the parties have no influence on the choice 

of law process for its dissolution by forming their own express choice. 

However, the question of choice of law and the ques- 
tion of choice of jurisdiction are closely connected in actions for the 
annulment of a marriage. The case of De Reneville v. Ve wart is 
a famous illustration thereof. Although the issue of that case is to 
be considered as an authority on jurisdiction rather than on choice of 
law,!! the difficulties arising out of such situations have to be illus- 
trated. A wife, domiciled in England before her marriage to a French- 
man, and resident in England at the time of the proceedings, petitioned 
for annulment of her marriage to her husband while he was resident and 
domiciled in France, on the grounds of his impotence, or alternatively, 

of his wilful refusal to consumate the marriage. 

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During the argument in the Court of Appeal, the main 
question was whether the court has jurisdiction only if the petitioner 
was domiciled in England, Whether the wife was domiciled in England 
depended on the question whether the marriage was void or voidable. If 
it was void ab initio the wife was domiciled in England, but if the 
marriage was voidable, the wife's domicile would coincide with her hus- 
band's which is French. This question could be answered only according 
to French Law, which opinion might be supported by Lord Greene's rea- 
sons: "The validity of a marriage so far as regards the observance of 
formalities is a matter for the 'Lex Lock celebrationis'. But this 
is not a case of forms. It is a case of essential validity. By what 
law is that to be decided? In my opinion by the law of France, either 
because that is the law of the husband's domicile at the date of the 
marriage or (preferably in my view) because at that date it was the law 
of the matrimonial domicile in reference to which the parties may have 


been supposed to enter into the bonds of marriage." According to 

Lord Greene, De Reneville v. De Reneville is a case on jurisdiction only 

73 Therefore 

and it has nothing to do with the choice of law question. 
jt cannot be considered as an authority answering the choice of law 
question in actions for nullity on the grounds of impotence or wilful 
refusal." It only illustrates the 'circulus vitiosus'within which 

questions of choice of jurisdiction and questions of choice of law may 

be intertwined. 

Ge Recognition of Foreign Decrees 
The recognition of foreign decrees by the courts of 
this country is strongly influenced by the divorce proceeding and the 

annulment policy. The question of recognition is a purely jurisdictional 

one: as long as the jurisdiction of the foreign forum is recognized for 
divorce and nullity proceedings, the choice of law question and there- 
fore the grounds on which the results were attained remain wholly im- 


(a) Divorce Decrees 

The basis on which a foreign court exercised 
jurisdiction is immaterial for a recognition of a foreign decree. Lord 
Reid stated in Indyka v.Indyka I, "When we apply our test of domicile 
at present we neither recognize the validity of the ground on which 
the foreign court had jurisdiction under its law, nor do we pay any 
heed to the ground on which that court granted decree for divorce. 
What we do is to make our own investigation into the facts to see 
whether, according to our law, the husband was domiciled within the 

jurisdiction of the foreign court ."/© 

The ground on which a decree was pronounced, the 

7 This is a decisive rule which 

choice of law, is immaterial as wells! 
excludes any choice of law consideration as to the recognition of 

foreign decrees by the courts of this country. 

However, an investigation into the choice of law 
process of a foreign court may be unsuitable: "the interests of comity 
are not served if one country is too eager to criticize the standards 
of another country or too reluctant to recognize decrees that are vajid 


by the law of the domicile," and, "English courts never investigate 

the propriety of the proceedings in a foreign court, unless they offend 


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against English views of substantial justice. When no substantial jus- 
tice, according to English notions, is offended, all that English courts 
look to is the finality of the judgment and the jurisdiction of the 


Furthermore, the problem of limping marriages should not 
allow of a decree of divorce being re-examined by introduction of the 
choice of law provisions of the forum, if the requirements of recogni- 

tion are met. 

(b) Annulment of Marriage 
As for divorce, the courts do not investigate the 
grounds on which the foreign court annuled the marriage, except if its 
recognition would be contrary to public policy or to natural justice. 
"It is well established that the English courts recognize the jurisdic- 
tion of a foreign court to annul a marriage, the ground on which that 

marriage was annulled by the foreign court is wholly immaterial."°2 

D. Inferences 

Matrimonial causes are treated as merely jurisdictional 
problems. Although questions may arise regarding the qualification of 
the '2ex causae' as ‘Lex fort' or as ‘Lex domicilii', or regarding to 
the acquisition of a separate domicile for divorce purposes by the wife, 
the choice of law question does not arise. The problems remain juris- 
dictional ones, and the link between the petitioner and the forum, 
strengthened by the requirements for establishing such a link, are 
sound reasons that the exclusive appliation of the '2ex fori' in matri- 

monial causes is regarded as a proper solution. 


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In analogy to divorce proceedings, the problems are 

centered on jurisdictional issues for nullity actions. 

The character of matrimonial causes permit no influence 
by the parties on the choice of law process, which could arise with 
regard to the problems arising out of the qualification of the ‘ex 
causae' and the wife's divorce domicile. As for the formation of the 
matrimonial relation?! the interest of the society and the community, 
the termination of such a special contract cannot be within the parties 

discretion as to influencing the legal issues. 

The character of the matrimonial relation demands a rigid 
and fixed rule which can only be found in the 'fex fori'. Furthermore, 
the 'Lex fori' bears advantages for the proceedings in our courts which 
cannot be missed. The judge applies the law he is familiar with, the 
parties do not have to face extreme costs for the proof of foreign law. 
The situation surely is different from that of rich companies and ier- 
chants and their contracts made by people who are familiar with legal 
drafting and proceedings. Furthermore, the parties, through their 
close link to aie courts in that particular jurisdiction, are familiar 

with the legal system themselves. 

Bits Conclusions 

The nature of the matrimonial relationship, the ‘marriage 
contract' is influenced not only by the parties involved but also by 
the community and the society within which they live. It has, there- 

fore, not only the function of ruling the living together of the family 



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but ijt has also a social function, which has been described as a corner- 
stone of the society and the nation. Matrimonial relations have on the 
one hand a strong personal value, this is the reason why the ‘personal 
Law' of the parties governs the legal aspects of such relations, and fur- 
thermore, a strong sociological value, the reason why the parties cannot 
have a further influence on such kinds of relations than the ‘personal 

Law! allows .e2 

Therefore, the question of capacity to marry is to be gov- 

83 This solution 

erned by the law of the ‘intended matrimonial home’. 
alone can take into account the parties' and the society's interest in the 
essential validity of such a special contract. However, it might be as- 
sumed that, by the choice of the matrimonial domicile the parties may have 
a direct influence on the choice of law process regarding the essential 
validity of their marriage. This however is not the case, for the require- 
ments of establishing a new domicile have to be satisfied, which is not 
solely a question of a pure act of will. Furthermore, influencing the 
choice of law process by means of choosing a domicile is not exercising 
party autonomy. It only moves the objective connecting factor, the domi- 
cile, from one into another jurisdiction. The objective connection is not 
substituted by a subjective connection. A question of status, that of 
whether a person is married or single, is involved and the parties must 

not be allowed to exert any influence on the choice of law process at alee 

As to the formalities of the creation of a matrimonial con- 
tract, the rule that the 'Lex Loci celebrationis' must be satisfied stands 

85 However, as to the characterization of the marriage 

forth clearly. 
as a polygamous, potentially polygamous or a monogamous union, a choice 
of law question might arise. Although the ‘Lex Lock celebrationts' 

plays the dominant role, some support has been given to the 

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‘intended matrimonial home' law to govern questions of characterization 
of the nature of the marriage. Nevertheless, only the 'Lex Loct ceke- 
brationis' can decide on questions which are strongly connected with 
the moral and religious principles of such unions, contracted under the 
law. The choice of law question does not arise at all; the parties' 
influence can never be a question as to what law should be satisfied 

concerning formalities of the matrimonial union. 

In matrimonial causes, choice of law has never been 
prominent. Jurisdiction has always been the issue of the choice-ques- 
tion and the 'fex foni' has been applied; with which one can only agree °° 
Even the Divorce Act 1968 does not consider the choice of law issue, al- 
though a choice of law problem is inherent because of the wife's capa- 
city to acquire a separate domicile for divorce purposes. Nevertheless, 
the ‘ex fori' defends its predominance. Even if the action is based 
On ‘foreign facts', the 'Lex fort' alone governs the proceedings. The 
choice of law question does not arise at all. Because of the special 
nature of the marriage contract the parties cannot influence the choice 

of law process. The same reasons are valid for judicial separation.>” 

Actions for nullity are closely connected to the rules 
governing the formation of the marriage .°° Furthermore, the question 
of a choice of law has been neglected because its answer depends wholly 
on the choice of jurisdiction issue and vice-versa: a 'cireulus vitiosus'. 
Therefore, the questions of annulment based on lack of capacity or 
lack of validity regarding forms, the law of the ‘intended matrimonial 

home' and the 'Lex Loci celebrationis' are applied on, and as for the 

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establishing of the matrimonial contract, the parties have no influence 
into the choice of law process. Lack of consent and physical incapacity 

are governed by the ‘Lex fort’, 

The recognition of foreign decrees by the courts of this 
country is strongly influenced by its divorce and nullity policy.°9 
For both, divorce and nullity decrees , the courts do not investigate 

the grounds on which the decision was made except if the recognition is 

contrary to public policy or to natural justice. The choice of law 

question does not arise. 

Although the parties are strongly concerned with the 
choice of law issues in problems of matrimonial relations, they are 
not allowed to exert any influence on the choice of law process by an 
expressed will. The interest of the community and of the society as a 

third person is too strong to be disregarded. 

vd bDonTevop STB 


Footnotes to Chapter Three, Third Subtitle 


Cheshire, The English Private International Law of Husband 
and Wife, (1963-1) Receuil des cours 119, crt. pieance: 
Mondaunt v. Mordaunt (1870) L.R. 2P. & D.109 per L. Pen- 
zance at 126. 

Lang v. Lang [1921] Sess. Cas. 44, per Lord President Clyde 
ate Sl 

Hyde v. Hyde (1866) L.R. IP & D 130. 

Such defects as there are mentioned in the Divorce Act 
1967-1968 c.24s.3 and s.4. 

Ditson V. Ditson (1856) 2 R.1.87,101 (USA) per Ames, L.J. 
cited in Goodrich, Conflict og Laws, 349. 

Cheshire-North 289. 

Cheshire,supta n.1, 136. 

Sottomayor V. DeBartos No. 1 (1877) 3 P.D.1; 
Brook v. Brook (1861) 9 H.C.L. L933 
Simonin v. Mallac (1860) 2 Sw & Tr 67; 
Ambrose v. Ambrose(1960) 32 W.W.R. 433. 

Cheshire, supra n.1, 136. and see ingra 100 et. seq. 
[1968] 27098. 956; [1968 ]3 All E.R. 279. 

Dicey, Conflict of Laws, 257. 

Cook, Logicat and Legal Bases of Conglict of Laws, 447. 
Cheshire-North 310. 

Graveson, Matrimonial Domicile and the Contract of Marrtage, 
Wee XX Journal of Comp. Legislation and int. law 55 at 
Guthrie's translation s.379 at 240. 

Dicey & Morris 258. 

Cheshire-North 313. 


Cmd. 9678 395 (1956); Draft Code, C1.4 (3). 

[1940] Ch. 46; and see Schmittoff, Validity of Marriage and 
the Conflict of Laws, (1940) 56 L.Q.R. 514. 

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Pugh v. Pugh [1951] P.482; PadoLecchia v. PadoLecchta 
[1968 Poe 3i4,.) vesy aon ll. E.R. 863. 

Crickmay v. Crickmay (1967) 60 D.L.R. (2d) 734. 

GLE Lb uazullic Rieaal Lures Meh 4 lig 


So in De Reneville v. De Reneville [1948] P. 100 per Lord 
Green at 114, per Bucknill L.J. at 121/122; Casey v. 
Casey [1949] P. 420 at 429/430; Kenward v. Kenward [1950] 
2onLi. be. 297 at oid. 

BLOT 2 aceAl le Ee 026 « 

Ideyat 1032 pet.taq. 

Id. at 1040. 

Sorimshine Vv. Serimshirne (1752) 2 Hag. Can. 395; 
Berthiaume v. Dastous [1930] A.C. 79 at 83. 

Simonin v. Mallac (1860) 2 Sw. & Tr. 67. 
Berthiawune v. Dastous [1930] A.C. 79 at 83 

Morris 88, Cheshire-North 324, Cheshire, supra n.1, 156, 
Graveson 281, and see supra n. 29. 

Although the marriage invalid by the local law at the time 
of the celebration will be subsequently validated by retro- 
spective legislation at the place of the celebration. 
Starkowsky Vv. A.- G. [1954] A.C. 155; Ambrose v. Ambrose 
(T9651) 2o Del Ra (2d) 1. 

Wolkenden v. Wolfenden [1946] P. 61; [1945] 2 All E.R. 

Holdowanski v. Holdowanska [1956] 2 W.L.R. 935. 

The question still is open if it would not be appropriate 
to look at the 'Lex domiateiz' of foreigners domiciled 
abroad and marrying in another foreign country, than ap- 
plying the law of England only. 

Foreign Marriage Act 1892 s.1. 
Foreign Marriage Act 1947 ss. 5,6. 

Warrender v. Warrender (1835) 2 Cl & Fin 488; 
Kenward v. Kenward [1951] P. 124. 
Jackson, Monogamous Polygamy, (1966/67) 40 A.L.J. 148. 


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Example by Cheshire-North 295. 

(1866) L.R. IP & D 130. 

In Lee v.Lau [1967] P. 14 the 'Lex Lock celebrationis' 
determined the nature and the incidents of the union but 
the 'Lex gsort' should have the ultimate decision on the 
classification, with issue of a classification in general, 
per Carns, J. 

ALi v.AQi [1966] 1 All E.R. 664 at 669. 

Supra. 73. 

Supreme Court of Judicature Act 1925 s. 225. 

Morris 134, Cheshire-North 353, Cheshire, supra n.1, 163 
Graveson 296. 

Mendes da Costa, Some Comments on the Conflict of Laws 
Provision of the Divorce Act, 1968, (1968) 46 Can.. Bar. 
Rev. 277. 

Cheshire-North 353, Wolff 373/374, Dicey Conflicts 6th ed. 

Cremer Vv. Cremer (1905) 30 Victorian L.R. 532 
Boyd v. Boyd [1913] Victorian L.R. 282. 

Supra 97 et seq. 

Zanelhi v. Zaneli (1948) 64 T.L.R. 556. 

LeMesurier v. LeMesurier, 11895] A.C. 517. 

(1948) 64 T.L.R. 556. 

siz 40 (2). 

Arret Riviere (1953) 42 Rev. Crit. 412; Art. 17 EGBGB; but 
cf. Art. 7g NAG and Art. 7f NAG which are based on the same 
idea as common law. 

Mendes da Costa 278. 

Walker Vv. Walker [1950] 4 DLR 253. 

Goldenberg V. hae. (1955) GuewS. Ca 0414 

Pledge v. Walter (1961) 36 WWR 95 (Alta.) 

So, 53 

Supra 107. 

19315) 2aD LR. 693 (Alta.S.¢.): 



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Anumytage V. Armytage [1898] P. 1178. 

Anghinelli v. Anghinelli [1918] P. 247. 

Sinelain Vv. Sinclair [1968] P. 189; [1967] 3 AI1E.R. 882. 
Eustace v. Eustace [1924] P. 45. 

Supra 124; Cheshire-North 413, Cheshire 171, Morris 154. 
Dicey-Morris 336/337. 

Kassim Vv. Kassim [1962] P. 224; [1962] 3 Ali ER 420. 
Buckland v. Buckland [1968] P. 296; [1967] 2 All ER 300. 

Matrimonial Causes Act. 1965 s. 40 (a) where the husband 
was domiciled in England prior to the desertion s.40 (b): 
Requirement of three years residence for establish juris- 

Easterbrook v. Easterbrook [1944] P. 10. 

Hutter v. Hutter [1948] P.100, 117 per Lord Green M.R. 
Ross Smith v. Ross Smith [1963] A.C. 280. 

See Falconbridge, Annulment Jurisdiction and Law: Void and 
Voidable Marriages (1948) 26 Can.Bar Rev. 907 at P. 915. 

Berthiaume v. Dastous [1930] A.C. 79. 

Radwan v. Radwan No. 2. [1972] 3 All E.R. 1026. 
[1948] P. 100. 

Cheshire-North 384/385, 396/397; Morris 163. 


Morris 163. 

Dicey and Morris 366. 

Indyka v. Indyka [1969] 1 A.C.33. 


Mezger v. Mezger [1937] P. 19. 

Igna v.Igna [1951] P. 404. 

Indyka v.Indyka [1969] 1 A.C. 33. | 

Igna v. Igra [1951] P. 404, at p. 412 per Pearce, J. 
Pemberton v. Hughes [1899] 1 Ch 781,793 per Lindley, M.R. 
Corbett v. Corbett [1951] 1 W.L.R. 486 at P. 490. 
Supra 97, 


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The liberal concept of a system of law, based on the idea 
that a human being, in achieving a completeness of freedom, should be 
able to regulate his legal relations according to his own desires, leads 
to the principle of ‘private autonomy’ in internal municipal law and to 

the principle of ‘party autonomy' in the private international law. 

"Party autonomy' has been derived from the liberal con- 
cept and has been defined as the parties' capacity to choose the law 
governing their international relations. Party autonomy should be ap- 
plied wherever the choice of law question arises, and wherever the issue 
of this question is of the parties' personal concern and no interest of 

the public or other third parties is endangered. 

This principle found its application in the domain of 
contracts, where it has been said that the express choice of law 7s one 
of the possible application of the ‘proper law' rule. Upon the choice 
of a legal system which is already objectively connected with the con- 
tract. The express choice of law is not restricted. Moreover, a free 
unlimited choice of law has been advocated, provided that the contract 
is an international contract. The requirement of internationality has 
to be judged upon by objective criterias which establish the foreign 


The proper law theory has also been introduced in the 

international law of torts, as a consequence of the unsatisfactory 

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solution of the 'Lex Lock delicti commissi' and the 'Lex gorc' and the 
English double rule of combined application. The express choice of law 
by the parties, as a possible subjective connection, is only one part 
of the 'proper law' doctrine. This connecting factor has to be ac- 
cepted in its fullest extent as defined for the law of contracts. The 
essential gain consists of certainty and just results in the conflict's 


In the law of matrimonial relations the influences of the 
‘party autonomy' principle should also be considered because of the 
strong personal interest of the parties concerned. However, the nature 
of the matrimonial relation is not only concerned with the personal 
interest of the parties, but also with public interest. The public 
concern demands clearness and lucidity of the law governing matrimonial 

relations; the parties interest can never prevail. 

Furthermore, for effective, practical and swift procedure 
in questions of dissolution of such relations, only the ‘Lex fort! 

principle is appropriate. 

Only where no strong third party interests are infringed 
can the ‘party autonomy' principle maintain its influence and there it 

should be applied freely, without limitations. 




The name of the author in (....) indicates the reference given in 

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Anton, A. E., Pratvate International Law; a Treatise from the Stand- 
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Balladore Pallieri, G. Conte, Diritto internazionale privato, 2a ed. 
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Bar, Ludwig von, Theorie und Praxis des internationalen Privatrechts, 
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Bartolus de Saxoferrato, De conflictu Legun (on the conglict of Laws), 
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Battiffol, Henri, txctt international prive, 4eme ed. Paris, Librairie 
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- Les conflit de Lois en maticre de contrats, Paris 1938 

Beale, Joseph Henry, A Treatise on the Conflict of Laws. New York, 
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Blackstone, William, Commentaries on the Laws of England, Philadelphia, 

Blouin, Michel, Le divorce dans Le droit international privée de la 
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Bourel, Pierre, Les conflicts en matione d'obLigations extra- 
contractuekles. Paris, 1961. 

Castel, Jean Gabriel, Private International Law; a Comparative Study 
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rie tame und Ts? International Law, London 1970. (Cheshire 

. *\,. 
r \ ~r 





Cavers, David Farquhar, The Choice-of-Law Process. Ann Arbor, Univer- 
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Cheatham, Elliott Evans, Cases and Materials on Conflict of Laws, 5dth 
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Columbia University. Parker Law School of Foreign and Comparative 
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Cook, Walter Wheeler, The Logical and Legal Basis of the Conglict of 
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Dicey, Albert Venn, Dicey's Conflict of Laws. 6th.ed. by J.H.C. Morris. 
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Doelle, Hans, Internationales Privatrecht. Karlsruhe,1968. 

Drion, H., The Lex Lock in Retreat. Festschrift Riese. Karlsruhe, 1964. 

Drobning, Ulrich, American-Geunan Private International Law. Published 
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Ehrenzweig, Albert Armin, Private International Law, A Comparative 
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the Law of Admiralty. Leyden, Sijthoff, 1967. 

Fleming, John G., The Law of the Torts. 3rd ed. Sidney, Australia 1965. 

Franklin, R. L., Freewill and Determinism. London and New York, 1968. 

Graveson, Ronald Harry, The Conglict of Laws. 6th ed.. London, Sweet & 
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Greene, Chase W., The Achievement of Rome.1933. 

Hancock, Moffatt, Torts in the Conglict of Laws. Ann Arbor, University 
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Hurst, J. W., Law and the Conditions of Freedom in the 19th Century 
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Ius privatun gentium. Festschrift fuer Max Rheinstein zum 7o. Geburt- 
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1969. . 

Kalensky, Pavel, Trends of Private International Law, Academia Prague, 
Nijhoff, The Hague, 1971. 




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$60) hist to. 

Kegel, Gerhard, Internationales Privatrecht, 3. A., Muenchen, Beck, 1971. 

Leflar, Robert Allen, American Conflicts Law. A Revision. Indianapolis, 
Bobbs-Merril Co., 1968. 

Lemaire, W.L.G., Nederlands Internationaal Privaatrecht. Leiden, Sij- 
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Lerebours-Pigeonniere and Loussouarn, Préets de droit international 
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Lewald, Hans, Das deutsche internatronate Privatnecht auf der Grundlage 
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Lorenz, Werner, Vertragsabschluss und Partewrlle un «nternationaten 
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Lorenzen, Ernest Gustav, Cases and Materials on the Conflict of Laws. 
5th ed. St. Paul, Minn. West Publishing Co., 1946. 

- Selected Anticles on the Conflict of Laws. Published for the 
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Mad], Ferenc, Foreign Trade Monopoly; Private International Law. 
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Morris, John Humphrey Carlile, The Conflict of Laws. London, Stevens, 

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1947/1949 (Niboyet). 

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- American-Swiss Private International Law. Published for the 
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Oftinger, Karl, Schweizerisches Haftpslichtrecht, 3 Bde. Zuerich, 
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Perry, Richard L., and Cooper, John C., Sources of our Libertres, 
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Pollock, Sir Frederick, The Law of Torts; a Treatise on the Princrples 
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Raape, Leo, Internationales Privatrecht, 5.A. Berlin/Frankfurt A.M. 1961. 





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Rabel, Ernest, The Conflict of Laws; a Comparative Study, 2nd ed. pre- 
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N.Y., Foundation Press, 1971. 


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Westlake, John, A Treatise on Private International Law with Principal 
Regerence to its Practice in England. 3rd ed. London, Sweet 
& Maxwell, 1890. 

Wolff, Martin, Private International Law. 2nd ed. Oxford, Clarendon 
Press, 1950. 

Zitelmann, Ernst, Internationales Privatrecht. 2 Bde. Muenchen/Leipzig, 
1897/1912 (Zitelmann). 



Abott-Smith v. Governors of Toronto University (1963), 41 D.L.R. (2d) 
62; aff'd (1964) 45 D.L.R. (2d) 672. 

Abu Dhabi 071 Arbitration [1951] I.L.R. 144. 

Ali v. Ali [1968] P. 564 

Allgeyer v. Louisiana 165 U.S. 578 (1896) 

Ambrose v. Ambrose (1961) 25 D.L.R. (2d) 1 

Anghinelli v. Anghinelli [1918] P. 247 

Armytage v. Armytage [1898] P. 178 

Assad v. Latendresse (1941) 79 S.C.R. 286 

Assunzione, The, [1954] P. 150 

Babcock v. Jackson 12 N.Y. 2d 473 (1963) 

Berthiaume v. Dastous L1930] A.C. 79 

Boissevain v. Weil [1949] 1 K.B. 482 

_ Bonython v. Commonwealth of Australia [1951] A.C. 201 
Boys v. Chaplin [1968] 1 All E.R. 283; agid sub nom. 

Chaplin v. Boys [1969] 2 All E.R. 1085 

British Controlled Oilfields v. Stagg (1921) 66 Sol.J.18 

Brook v. Brook (1861) 9 H.C.L. L93 

Brunsdon v. Allard (1859) 2 E.& E. 19 

Buckland v. Buckland [1968] P. 296 

Canadian National Steamship Co. v. Watson [1939] 1 D.L.R. 273 
Casey v. Casey [1949] P. 420 

Chaplin v. Boys. See Boys v. Chaplin 

Connor v. The Earl of Bellamount (1742) 2 Atk. 382. 

Crickmay v. Crickmay (1967) 60 D.L.R. (2d) 734 

Croker v. Marquis of Hertford (1844) 4 More P.C. 339 

Crowley v. Christensen 137 U.S. 86 (1890) 

De Reneville v. De Reneville [1947] P. 168 

Ditson v. Ditson (1856) 2 R.1. 87(USA) 

Dobell G.E. & Co. v. Steamship Rossmore Co. [1895] 2 Q.B. 408 

Duskin v. Pennsylvania Central Airlines Corporation 167 F.2d 727 (1948) 
Dym v. Gordon 16 N.Y. 2d 120 (1965) 

Emery v. Emery 45 Cal. 2d 421 (1955) 
Eustace v. Eustace [1924] P. 45 

Fourbet v. Turst (1703) 1 Brown Parl. Cas. 129 

Gienar v. Meyer (1796) 2 Hy. Bl. 603 
Goldenberg v. Triffon [1955] Que. S.C. 341 
Gronlund v. Hanson (1969) 4 D.L.R. (3d) 435 
Guaranty A.G. v. Astra BGE 81 II 391 

Halley, The (1868) L.R. 2 P.C. 193 

Habergham v. Vincent (1793) 2 Ves. Jr.204 

Helbert Wagg & Co. Ltd., Re weal LSUE.R 129 
Holden v. Holden 169 U.S. 366 (1897) 
Holdowanskiv. Holdowanska [1956] 2 W.L.R. 935 
Hyde v. Hyde (1866) L.R. I P. & D. 130 


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Indyka v. Indyka [1969] 1 A.C. 33 

Jabbour v. Custodian of Israeli Absentee Property [1954] 1 All E.R. 145 
Jacobs v. Credit Lyonnais (1884) 12 Q.B.D. 589 

Jenner v. Sun 0i1 Co. [1952] 2 D.L.R. 526 

Jones v. Metropolitan Life Insurance Co. 286 N.Y. Supp 4 (1936) 

Kassim v. Kassim [1962] P. 224 

Kay's Leasing Corp. Pty. Ltd. v. Fletcher [1965] A.L.R. 673 
Kell v. Henderson 270 N.Y.S. (2d) 552 (1966) 

Kenward v. Kenward. See Way v. Way 

Key v. Key (1930) 65 Ont, L.R. 232 

Kilberg v. North East Airlines 172 N.E. 2d. 526 (1961) 

La Van v. Danyluk and Danyluk (1970) 75 W.W.R. 500 
Lang v. Lang t1921] Sess. Cas. 44 

Lee v. Lau [1967] P. 14 

Le Mesurier uv. Le Mesurier [1895] A.C. 517 

' Lieff v. Palmer (1937) 63 Que. K.B. 278 

Liversidge v. Anderson [1942] A.C. 206 

Lloyd v. Guibert (1865) L.R. I Q.B. 115 

Lochner v. New York 198 U.S. 45 (1904) 

Loucks v. Standard 0i1 Co. of New York 224 N.Y. 99 (1918) 

Machado v. Fontes [1897] 2 Q.B. 23] 

M'Elroy v. M'Allister [1949] Sess. Cas. 110 

McLean v. Pettigrew [1945] S.C.R. 62 (Canada) 

McMillan v. Canadian Northern Rail,Co. [1923] A.C. 120 

Manchester, Sheffield and Lincolnshire v. Brown [1883] App.Cas. 703 

Miller (James) & Partners Ltd. v. Whitworth Street Estates 
(Manchester) Ltd. [1970] 1 All E.R.796 

Missouri Steamship Co., Re (1889) 42 Ch. D. 321 

Mueller v. Marx BGE 66 II 165 

Myanduk v., Myanduk [1931] 2 D.L.R. 693 

Naftalin v. London Midland and Scottish Rail Co. [1933] Sess. Cas. 259 

O'Connor v. Wray [1930] 2 D.L.R. 899 
Ocean S.S. Co. v. Queensland State Wheat Board [1941] I K.B. 402 
Original Blouse Co. v. Bruck Mills (1963) 42 D.L.R. (2d) 174 

Padolecchia v. Padolecchia [1968] P. 314 

Paine, Re 1940] 1 Ch. 46 

Phillips v. Eyre (1869) L.R. 4 G.B. 225 

Pilkington's Will Trusts, Re [1937] Ch. 574 

Pledge v. Walter (1961) 36 W.W.R. 95 

Printing and Numerical Registration Co. v. Sampson (1875) L.R. 19 
Eq. 462 

Pugh v. Pugh [1951] P. 482 

Radwan v. Radwan (no.2)[1972] 3 All E.R. 1026 

R. v. Brentwood Superintendent Registrar of Marriages,Ex parte Arias 
[1968] 2Q.B. 956 

R. v. Inhabitants of Birmingham (1863) 5 Q.B.210 

Reich v. Purcell (1967) 432 P. 2d 727 

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Riviere, Arret (1953) 42 Rev. crit. 412 
Rowett Leakey & Co. v. Scottish Provident Institution (1926) 134 L.T. 
660, ag4'd [1927] 1 Ch. 55 

Salt v. Marquis of Northampton [1892] A.C. 1 

Santos v. Illidge (1860) 8 C.B.N.S. 861 

Sayers v. International Drilling Co. N. V. [1971] 3 All E.R. 166 

Scrimshire v. Scrimshire (1752) 2 Hag. Con. 395 

Serbian and Brazilian Loans, The P.C.I.J. [1929] Series A, Nos. 20 
and 21. 

Sharn Importing Ltd. v. Babchuk [1971] 4 W.W.R. 517 

Shaw v. Director of Public Prosecutions [1961] 2 All E.R. 446 

Simonin v. Mallac (1860) 2 Sw & Tr. 67 

Simonson v. Canadian Northern Rail. (1914) 17 D.L.R. 516 

Sinclair v. Sinclair [1968] P. 189 

Slater v. Sunderland Corp. (1863) 33 L.J.Q.B. 37 

Sottomayor v. De Barros No. 2 [1874-80] All E.R. Rep. 97 

Starkowsky v. A. - G. [1965] A.C. 155 

Story v. Stradford Mill Building Co. (1913) 11 D.L.R. 49 

Suse and Sibeth, Re, Ex parte Dever (1887) 18 Q.B.D. 660 

Swan, In the Well of (Gl S7P)* 2aVeRw 47 

Taczanowska v. Taczanowski [1957] P. 301 

Thompson v. Distillers Co. (Bio-Chemicals) Ltd. [1968] 3 N.S.W.R. 3 
Thompson v. Thompson 105 N.H. 86 (1963) 

Tomkinson v. First Pennsylvania Banking and Trust Co. 

See United Railways of Havana and Regla Warehouses, Re. 

Traders Finance Corporation v. Casselman (1957) 22 W.L.R. 625 

Trans Canada Credit Corporation Ltd. v. Prince (1965) 52 W.L.R. 440 
Tzortzis v. Monarch Line A/B [1968] 1 All. E.R. 949 

United Railways of Havana and Regla Warehouses Ltd., Re [1960] Ch. 52 
afgé'd Sub nom. Tomkinson v. First Pennsylvania Banking and Trust Co. 
pEigelal SAC. 1007 

Vita Food Products Inc. v. Unus Shipping Co. Ltd. [1939] A.C. 277 

Walker uv. Walker [1950] 4 D.L.R. 253 

Walton v. Aramco 223 F (2d) 941 (1956) 

Warrender v. Warrender (1835) 2 Cl. & Fin. 488 

Way uv. Way [1950] P. 71, xeversed sub. nom. Kenward v. Kenward [1951 | 
Po ol24 

Wolfenden v. Wolfenden [1946] P. 61 

Young v. Industrial Chemicals Co. Ltd. [1939] 4 D.L.R. 392 
Zanelli v. Zanelli (1948) 64 T.L.R. 556 



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BGB Entscheidungen des Schweizerischen Bundesgerichts 


EGBGB Einfuehrungsgesetz zum Buergerlichen Gesetzbuch 
NAG Bundesgesetz betreffend die Niedergelassenen und Auf- 

enthalter in der Schweiz (Switzerland) 

RGZ Entscheidungen des Reichsgerichts (Germany) 
SVG Bundesgesetz ueber den Strassenverkehr (Switzerland) 
ZSRe tah. Zeitschrift fuer schweizerisches Recht, neue Folge 



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