Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Chapter K.1: Kahn, Franz

Kurt Siehr

Franz Kahn (1861–1904) was one of the first authors who refused to construe an international theory or system of private international law. He was convinced that private international law is national law but has to be treated by internationally orientated methods.

I. Life and work

Franz Kahn was born on 2 August 1861 in Mannheim/Baden as the oldest son of Bernhard Kahn (1827–1905) and his wife Emma, née Eberstadt (1840–1906). His parents were Jews who came from villages in southern Germany and settled in Mannheim which, at this time, had a comparatively large liberal Jewish community, the biggest (about 7 per cent of the citizens) of any city of the German state Großherzogtum Baden (Karl Otto Watzinger, Geschichte der Juden in Mannheim 1650–1945 (2nd edn, Kohlhammer 1987) 24). His father was a merchant, banker and member of the city parliament (Helmut Weber, Die Theorie der Qualifikation (Mohr Siebeck 1986) 14). He left Baden after the revolution of 1848, immigrated to the →USA, became a naturalized American citizen and returned in 1857 (Franz Kahn dealt with the nationality of the Kahn family of ‘K.B.’ (abbreviated form of: Kahn, Bernhard) in his article ‘Staatsangehörigkeit, Erwerb und Verlust, Heimatlosigkeit (1898) 8 NiemZ 320–27 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 480). Two of Franz Kahn’s younger brothers were the composer Robert Kahn (1865–1951) and the New York banker Otto Hermann Kahn (1867–1934), partner of the New York bank Kuhn, Loeb & Co. One of his sisters was Elisabeth (Lili) Kahn (1869–1940), wife of Felix Deutsch (1858–1928, the co-founder of the big industrial plant AEG and successor of his colleague Emil Rathenau, 1838–1915), a friend of Walther Rathenau (1867–1922; Shulamit Volkov, Walther Rathenau. Ein jüdisches Leben in Deutschland 1867–1922 (CH Beck 2012) 109), the murdered German Minister of Foreign Affairs. Lili became known as the ‘grande dame’ of the upper class society of Berlin (Helmut Weber, Die Theorie der Qualifikation (Mohr Siebeck 1986) 15).

After having passed the final school examination (Abitur) of the Karl-Friedrich-Gymnasium in Mannheim in 1879, Franz Kahn enrolled as a student at Berlin University for the winter term 1880/81 and after having spent two semesters as a law student in Heidelberg and Munich, he studied three semesters at the University of Leipzig (Gisbert Lamberg, Die kollisionsrechtliche Lehre von Franz Kahn (1861–1904) (Dissertation, Göttingen 1975) XXIII). He finished his law studies in Heidelberg (1883/84) and Freiburg im Breisgau in 1884/85. At the University of Leipzig (having the ‘best’ law faculty: Max Hachenburg, Lebenserinnerungen eines Rechtsanwalts und Briefe aus der Emigration (Kohlhammer 1978) 35) Franz Kahn also participated in the Pandekten-exercises of Otto Lenel (1849–1935), the famous classical historian of Roman law, also a Jew from Mannheim and a close friend of Franz Kahn (Otto Lenel, ‘Vorwort’ in Franz Kahn (ed), Abhandlungen zum internationalen Privatrecht, vol 1 (Duncker & Humblot 1928) XV). They may have even been related by marriage (Theodor Niemeyer (Erinnerungen und Betrachtungen aus drei Menschenaltern (Mühlau 1963) 138) records that Lenel called Franz Kahn his ‘Schwager’, ie his brother-in-law) because the mother of Franz Kahn was Emma Eberstadt (daughter of Ferdinand Eberstadt, 1808–88) and the wife of Otto Lenel was Luise Eberstadt, daughter of Abraham Eberstadt (1810–92). The Eberstadts were a famous Jewish family of Worms, later Mannheim. Franz Kahn passed the two state examinations in 1885 and 1888, respectively, and became for a short time judge at the court of first instance in Karlsruhe and in Bretten, a small town east of Karlsruhe. During 1888 and 1889 Kahn travelled to →France and England (→United Kingdom) in order to study French and English law. His friend Otto Lenel had suggested this effort of studying foreign law in the state of origin (Otto Lenel, ‘Vorwort’ in Franz Kahn (ed), Abhandlungen zum internationalen Privatrecht, vol 1 (Duncker & Humblot 1928) XIII note 2). Because of his weak health he finally quit his job and decided to devote his p. 1057time to writing mainly on problems of private international law.

Franz Kahn started his career as legal author with his thesis Zur Geschichte des Römischen Frauen-Erbrechts (On the History of Roman Law of Succession of Women), submitted to and accepted by the University of Leipzig in 1884 (Gisbert Lamberg, Die kollisionsrechtliche Lehre von Franz Kahn (1861–1904) (Dissertation Göttingen 1975) XXV). Two years later Franz Kahn published his first paper, ‘Die Natur der Interventionsklage nach der C.P.O., und deren Anwendung auf die Mobiliar-Exekution im Gebiete des französischen Rechts’ ((1886) 70 AcP 409). This paper deals with the claim of a third person under § 690 German Code of Civil Procedure of 1877 (Civilprozessordnung, RGBl. vol 1877, No 6 pp 83–243, henceforth CPO), now § 771 German Code of Civil Procedure (Zivilprozessordnung of 5 December 2005, BGBl. I 3202, as amended, henceforth ZPO), alleging that the movable seized in execution belongs to him according to art 2279 of the French Civil Code (Code Civil of 21 March 1804). This problem is still open and Kahn’s paper is cited even today (Friedrich Stein and Martin Jonas, ‘§ 771 ZPO’ in Friedrich Stein and Martin Jonas (eds), Kommentar zur Zivilprozessordnung (22nd edn, Mohr Siebeck 2012) para 4, fn 18). This paper can only be explained by the legal situation in which the German Empire found itself after 1871. The uniform CPO had entered into force in Germany on 1 January 1879, but private law was still regional law. In Baden, of which Mannheim and Heidelberg were part, the Badische Landrecht was still in force, a law which was based on the French Code civil. Franz Kahn was therefore interested in comparative law (→Comparative Law and private international law) and in private international law which, until 1900, was also important in Germany as interregional private law. Another article of Franz Kahn dealt with the territorial applicability of the Maintenance Act of Baden of 1851 ((1886) 52 Annalen der Großherzoglich Badischen Gerichte 170). Here his interest in conflicts law had already become evident.

Very soon after the unification of Germany in 1871, commissions were appointed to prepare drafts of a German civil code (Bürgerliches Gesetzbuch of 18 August 1896, RGBl. S. 195, as amended) and of an introductory statute of the civil code, the EGBGB (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 18 August 1896, RGBl. S. 604, as amended), comprising the international, interlocal and temporary dimensions of the BGB. In six extensive articles, Franz Kahn published on problems of private international law in the prestigious Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts founded by Rudolf von Jhering (1818–92) and, after Jhering’s death and after the entry into force of the BGB, called Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts. The first article ‘Gesetzeskollisionen: Ein Beitrag zur Lehre des internationalen Privatrechts’ ((1891) 30 JherJb 1 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 1) deals, in a realistic, bold and astute manner, with three main problems of private international law: the nature of sources are national law unless unified by conventions; →renvoi has to be declined because it leads to a ‘logisches Spiegelkabinett’; and the ‘invention’ of ‘latente Gesetzeskollisionen’, ie the different qualification or characterization of legal institutions as Étienne Bartin (→Bartin, Étienne) (1860–1948) called it a few years later in (1897) 24 J.Dr.Int.Priv. 225, 466, 720 = Bartin, Études 1–82. The second article ((1896) 36 JherJb 366–408 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 124) is devoted again to the problem of renvoi, and this paper discusses the renvoi provisions as they were accepted in art 27 of the German EGBGB (original old version) and in art 1 of the Hague Marriage Convention of 1902 (in preparation since 1893). He vigorously opposes renvoi and relies heavily on his own judgment and on mainly French authors. The third article of Franz Kahn ‘Die Lehre vom ordre public (Prohibitivgesetze)’ ((1898) 39 JherJb 1 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 161) compares the Romanistic theory of mandatory rules with the German theory of ordre public. Rejecting the Romanistic theory (based mainly on Pasquale Stanislao Mancini, 1817–88) Kahn stresses two important points. The first one is the experience that not all mandatory rules apply in every case. They may only concern nationals of the forum state and not have regard for foreigners. The other point is that mandatory rules of the forum state only apply in cases which have a close relation to the forum p. 1058state. His conclusion is that the problem of ordre public is a kind of ‘Sicherheitsventil’ (safety valve) which is qualified as ‘the yet unknown and yet unfinished part of private international law’ (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 251). The fourth article of Franz Kahn summarizes to some extent what he already had written before. In ‘Über Inhalt, Natur und Methode des internationalen Privatrechts’ (Meaning, Nature and Method of PIL), published in (1899) 40 JherJb 1–87 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 255, Kahn stresses, once more, that private international law is, with very few exceptions, national law and cannot be derived from principles of public international law as it is taught by many of his well-established German colleagues such as Carl Ludwig von Bar (1836–1913) and Ernst Zitelmann (1852–1923). The last two papers published in JherJb deal with special German problems of intertemporal law which became important and practical after the EGBGB, including the new German rules on private international law, had entered into force on 1 January 1900 (see Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 327, 363). Finally, Franz Kahn stressed the importance of comparative law for private international law in his contribution to the International Conference on Comparative Law in Paris in 1900 (‘Bedeutung der Rechtsvergleichung mit Bezug auf das internationale Privatrecht’ (1900) 10 NiemZ 97 = Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 491 = ‘Rôle, fonction et méthode du droit comparé dans le domaine du droit international privé’ (1900) 29 Bull.Lég.Comp. 406). He called the use of comparative law ‘eine dritte Richtung’ (a third direction) which may overcome the opposing theories of international law and national law as bases of private international law.

During his last years Franz Kahn commented on the first Hague conventions and draft conventions: the Hague Marriage Convention, the Draft Convention on Succession and the Hague Divorce Convention 1902. These critical comments on the Third Hague Conference were published in NiemZ in the years 1903–05 (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 2 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 37). In 1903 Kahn gave a lecture in Berlin on ‘The Uniform Codification of Private International Law by Treaties’ (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 2 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 1). He welcomed the →Hague Conference on Private International Law, which started in 1893, and expected that the Conference might finally lead to a worldwide uniform private international law.

Franz Kahn died of tuberculosis on 6 December 1904. He left his library as a legacy to the University of Kiel and its Institute of International Law as the ‘Franz Kahn Library’ which, since the Second World War, has no longer existed (Theodor Niemeyer, Erinnerungen und Betrachtungen aus drei Menschenaltern (Mühlau 1963) 138; Helmut Weber, Die Theorie der Qualifikation (Mohr Siebeck 1986) 16). More than 20 years after the death of Franz Kahn his papers were collected and published as ‘Abhandlungen zum internationalen Privatrecht’. The publication of the two volumes was made possible by grants made by Franz Kahn’s sister Elisabeth Deutsch of Berlin and his brother Otto Kahn of New York (Otto Lenel, ‘Vorwort’ in Franz Kahn (ed), Abhandlungen zum internationalen Privatrecht, vol 1 (Duncker & Humblot 1928) XVI). These volumes were edited by Otto Lenel and Hans Lewald (1883–1963), the latter being himself a specialist of private international law as well as Roman and Byzantine law and an admirer of Otto Lenel.

II. Kahn’s contribution to private international law

Franz Kahn contributed to private international law especially in five different fields: national law as a basis of private international law, qualification or characterization, renvoi, ordre public and comparative method.

1. Basis of private international law

In the 19th century many scholars of private international law based this field of law on public international law (→Public International Law and private international law). They had the idea that international law draws the limits of national jurisdictions and obliges the states to recognize foreign judgments rendered by p. 1059courts of the internationally competent foreign state. Ernst Zitelmann (1852–1923), in the first volume of his treatise on private international law (published 1897), called this internationally based conflicts law ‘Reines internationales Privatrecht’ (pure private international law) and distinguished it from the ‘Angewandtes internationales Privatrecht’ (applied private international law) treated in the second volume. Also Carl Ludwig von Bar (1836–1913) emphasized in the second edition of his treatise on ‘The Theory and Practice of Private International Law’ (published in 1889, translated in 1892) that it is not up to the sovereign states to decide whether they are competent or not. This has to be decided by the ‘Natur der Sache’ (nature of the subject) and by some supranational sources giving authority to the states (Carl Ludwig von Bar, The Theory and Practice of Private International Law (2nd edn, Green 1892) I § 32). Therefore, Carl Ludwig von Bar does not accept Friedrich Carl von Savigny’s theory of the ‘seat of a legal relationship’ (Sitz eines Rechtsverhältnisses) because, first, the competent jurisdiction has to be fixed (Carl Ludwig von Bar, The Theory and Practice of Private International Law (2nd edn, Green 1892) I § 107). There is not yet unanimity with respect to such international rules of limitation of national jurisdictions. Therefore sovereign states may define themselves their jurisdiction (eg on ‘nazionalità’ as Mancini (→Mancini, Pasquale Stanislao) proposed as an internationally desirable principle of personal law) but have to pay respect to any internationally fixed limitation of their jurisdiction. If they do not give respect to such internationally accepted rules, the states may be held liable for violation of such rules. This internationally based concept of private international law also affected the newly enacted German private international law of the EGBGB (Oskar Hartwieg and Friedrich Korkisch, Die geheimen Materialien zur Kodifikation des deutschen internationalen Privatrechts 1881–1896 (Mohr Siebeck 1973) 17). Many unilateral conflicts rules on the application of German law were formulated in order to avoid international disputes about foreign law to be applied in German courts.

Franz Kahn was not convinced of this approach. From the outset he wrote that private international law is basically national law and that foreign law is not to be applied because it wants to govern but because the forum state decides by its conflicts rules that it shall govern the specific case. Carl Ludwig von Bar reacted to this attitude of Franz Kahn (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 153) very angrily ((1898) 8 NiemZ 187 note 14) and accused Franz Kahn of charging von Bar with ‘sehr gemeinschädliche Thätigkeit’ (very noxious activity). Franz Kahn reacted to these reproaches and expressed his concern and lack of understanding of von Bar’s protestations (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 269 note 27). More than 30 years later George Melchior in his Grundlagen des deutschen internationalen Privatrechts wrote, with reference to Franz Kahn, in 1932: ‘In Germany of the year 1890, you still had to be very courageous to stress the national character of private international law resulting from the differences of connecting factors, an opinion which was qualified by von Bar, an eminent scholar, as an act of impertinence’ (George Melchior, Grundlagen des deutschen internationalen Pivatrechts (de Gruyter 1932) 17). Franz Kahn had this courage.

2. Qualification or characterization in private international law

In his 1891 research on conflict of laws (Franz Kahn, Gesetzeskollisionen: Ein Beitrag zur Lehre des internationalen Privatrechts (Jena 1891) 92), Franz Kahn asked himself about the origins of such conflicts, ie differences in choosing the law applicable in the respective forum state. Kahn distinguished two types of conflicts: the open ones using different connecting factors like nationality (in most of the continental countries) and domicile (mainly in Anglo-American countries) and the hidden ones, called latent conflicts (‘latente Gesetzeskollisionen’). These hidden or latent conflicts originate in classifying the same problem of substantive law as belonging to different rules of private international law. This happens, for example, with statutes of limitation, which are classified in continental law as a matter governed by the law applicable to the respective claim whereas in common law countries at Kahn’s time they were classified as procedural law and therefore governed by the respective lex fori proceduralis. Kahn was the first to discover this basic problem of private international law (Hans p. 1060Dölle, ‘Juristische Entdeckungen’ in Ständige Deputation des Deutschen Juristentages (ed), Verhandlungen des 42. Deutschen Juristentages II (Mohr Siebeck 1958) B 1, B 19) and was soon followed by Étienne Bartin, who observed the same phenomenon and frankly admitted in 1899 that he did not know of Kahn’s article when he wrote his contribution to this problem in 1897 (Étienne Bartin, Études de droit international privé (Chevalier-Marescq 1899) 2 note 2).

3. Renvoi in private international law

Franz Kahn criticized renvoi very early. Different jurisdictions may apply different laws to the same case because they use different →connecting factors in their conflicts law. If courts have to apply foreign law, they should not pay regard to foreign conflicts law but to foreign substantive law which is applicable because it should govern the case according to the conflicts rule of the forum and not because it wants to be applied. Renvoi, as Kahn correctly and astutely realized, will lead to what John Westlake called ‘circulus inextricabilis’ (John Westlake, A Treatise on Private International Law (5th edn, Sweet & Maxwell 1912) 31), a ‘logisches Spiegelkabinett’ (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 20). If every state applied renvoi the same way, these states would not come to a final solution because each of these states will politely invite the other by saying ‘after you’! What Franz Kahn, however, did not realize is the fact that not every state applies renvoi the same way and that also in other instances (especially with respect to preliminary questions which were later ‘discovered’) foreign conflicts law has to be observed and may have to be applied.

4. Ordre public and mandatory rules

What has been said about the English forms of action (Frederic William Maitland, The Forms of Action at Common Law (CUP 1909, reprint 1968) 1) could also be said of the theories of statutes in private international law around 1900: ‘they still rule from their graves’. This became apparent, especially in French, Italian and Spanish literature, with respect to the problem of clauses and provisions of the →lex fori protecting the ordre public (→Public policy (ordre public)). Anxious to apply foreign law which deviates from normal standards, the authors developed extensive theories how such foreign law may be avoided and/or its application reduced to normal standards. In his third paper on ordre public Franz Kahn deals with this problem diligently, correctly pointing out that the Romanist theories on ordre public are remnants of the old and outgrown theory of statutes delimiting their own applicability and that these theories were hardly accepted in German-speaking countries (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 161). Kahn in his very learned and comparative study points out that ordre public is hardly applied in German-speaking countries and may be thought of as ‘the still unknown and yet unfinished part of private international law’ (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 251).

5. Comparative law and private international law

Franz Kahn has been called a ‘nationalist’ and a ‘positivist’. This is incorrect. He was a realist without grand visions of deriving private international law from some kind of international law or from the ‘nature of the subject’. He agreed that two sentences or rules may be drawn from ‘supranational’ private international law: no state may prohibit the application of foreign law (→Foreign law, application and ascertainment) by local courts, and every state must have principles of private international law (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 286). But these two rules do not solve any problem. Rules have to be more specific. And Kahn finds such rules in national legislation, court decisions and scholarly writings. If this realistic and pragmatic attitude is called ‘positivism’, you may call him ‘positivist’. For him public international law is the law governing the relation between states (law inter nationes) and has almost nothing to do with private international law, a name which Kahn accepts as normally used but correctly criticizes as misleading (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 255). In 1931 Max Gutzwiller wrote: ‘Whoever wants to enjoy an amusing hour, may read p. 1061the literature on the question of naming [of private international law]’ (Max Gutzwiller, Internationalprivatrecht (Stilke 1931) 1549) and agreed with Franz Kahn’s criticism completely.

Thus, Franz Kahn is not a ‘nationalist’ but a scholar devoted to comparative legal research. All his papers on private international law are based on material which was drawn from foreign and German sources. He quoted statutes of all important countries, analysed cases from major jurisdictions and referred to authors of all states and languages. He was perhaps the most learned comparative conflicts scholar of his time, and he provides an excellent example of the comparative law method he demanded for the study of private international law (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 322, 491). This attitude is accepted today almost everywhere. Konrad Zweigert characterized Franz Kahn as ‘one of the most brilliant German scholars of private international law’, and located in Kahn’s papers the origin of the so-called ‘third school’ of private international law, ie the school which – besides the ‘internationalists’ and the ‘positivists’ – introduced comparative law as the bases of serious studies in private international law (Konrad Zweigert, ‘Die dritte Schule im internationalen Privatrecht. Zur neueren Wissenschaftsgeschichte des Kollisionsrechts’ in Hans Peter Ipsen (ed), Festschrift für Leo Raape (Rechts- und Staatswissenschaftlicher Verlag 1948) 35, 37).

III. Kahn’s influence on private international law

Franz Kahn’s ideas and proposals for private international law have been accepted in modern times in such a way that no one any longer realizes that his papers were fundamental for modern developments and scholarship. This is not only true with respect to the general problems of private international law but also with respect to the more specific problems of →renvoi and ordre public (→Public policy (ordre public)).

1. General problems of private international law

Private international law is national law unless unified by international conventions or EU regulations. Today this is the prevailing opinion with courts and scholars of private international law. The law-of-nations doctrine of private international law is almost a relic of history (Arthur Nussbaum, ‘Rise and Fall of the Law-of-Nations Doctrine in the Conflict of Laws’ (1942) 42 Colum.L.Rev. 189) and can hardly be understood by contemporary students of conflicts law. What Franz Kahn wrote about this subject matter and for what he was emotionally reprimanded by Carl Ludwig von Bar (Arthur Nussbaum, ‘Rise and Fall of the Law-of-Nations Doctrine in the Conflict of Laws’ (1942) 42 Colum.L.Rev. 189, 203 note 69) is so normal today that you have to dig carefully into the history of private international law (→Private International Law, history of) in order to explain to your students the ancient and once prevailing law-of-nations doctrine of conflicts law. Now no one associates Franz Kahn with this fight between two different theories nor observes that it was Franz Kahn who prevailed and laid the foundation stone of modern private international law.

Today it appears that European private international law will be uniform in some years, and the European Court of Justice as a common judicial body will contribute with its preliminary rulings to the uniformity of interpretation and application of European private international law – a goal that Franz Kahn envisaged for an effectively working body of supranational private international law (Franz Kahn, Abhandlungen zum internationalen Privatrecht, vol 1 (Otto Lenel and Hans Lewald (eds), Duncker & Humblot 1928) 2 and vol 2, 1).

Comparative law is today a natural method of private international law (→Comparative Law and private international law). EU regulations are conceived and drafted after the Commission has inquired into the laws of 28 Member States of the EU. The regulations are therefore based on comparative studies prepared in memoranda for Green Papers and on drafts for such instruments. Franz Kahn’s ideas about the important role which comparative law has to serve in conflict-of-law studies is commonly accepted in Europe.

2. Specific problems of private international law

Franz Kahn also shaped modern conflicts law as concerns some problems which today are seen as being general problems of private international law, with respect to the question of p. 1062renvoi and the problem of ordre public. Also in this regard Franz Kahn was ahead of his time. Renvoi has almost vanished and ordre public reduced to an exceptional application.

Renvoi, as Franz Kahn correctly observed, cannot be regarded as an institution which must be accepted by every jurisdiction. It does not work because all these jurisdictions would defer to the others with a polite ‘after you’. However, he could not anticipate that Germany would for 100 years apply renvoi successfully with respect to states which did not have the same system of renvoi as Germany. Especially Anglo-American countries limit their jurisdiction with respect to immovables located in foreign countries and with respect to family matters of persons domiciled abroad. In these cases Germany qualified this disinterest of Anglo-American states as renvoi and applied German law to immovables located in Germany and to Anglo-American citizens domiciled in Germany. EU regulations have almost eliminated renvoi (eg art 20 Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation); art 24 →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40)) and kept it merely with respect to third states not applying the EU regulation in question (eg art 34 Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation)).

The exception clause for ordre public has been reduced considerably. The clause applies only if the application of foreign law ‘is manifestly incompatible with the public policy (ordre public) of the forum’ (art 26 Rome II Regulation).

Literature

  • Étienne Bartin, ‘De l’impossibilité d’arriver à la supression définitive des conflits de lois’ (1897) 24 J.Dr.Int.Priv. 22555, 46695, 72038 =

  • Étienne Bartin, ‘La théorie des qualifications en droit international privé’ in Étienne Bartin, Études de droit international privé (Chevalier-Marescq 1899) 1;

  • Dimitrios J Evrigenis, ‘Les classiques du droit international privé: Franz Kahn. A propos du Cinquantenaire de sa Mort (1904–1954)’ [1957] IRuD 301;

  • Franz Gamillscheg, ‘Zur Erinnerung an Franz Kahn (2.8.1861 – 6.12.1904)’ (1961) 26 RabelsZ 601;

  • Max Hachenburg, Lebenserinnerungen eines Rechtsanwalts und Briefe aus der Emigration (Kohlhammer 1978);

  • Gisbert Lamberg, Die kollisionsrechtliche Lehre von Franz Kahn (1861–1904) (Dissertation Göttingen 1975);

  • Otto Lenel, ‘Vorwort’ in Franz Kahn (ed), Abhandlungen zum internationalen Privatrecht, vol 1 (Duncker & Humblot 1928) XIII;

  • Theodor Niemeyer, Erinnerungen und Betrachtungen aus drei Menschenaltern (Mühlau 1963);

  • Karl Otto Watzinger, Geschichte der Juden in Mannheim 1650–1945 (2nd edn, Kohlhammer 1987);

  • Helmut Weber, Die Theorie der Qualifikation (Mohr Siebeck 1986) 14;

  • Ernst Zitelmann, ‘Franz Kahn’ (1905) 15 NiemZ 1;

  • Konrad Zweigert, ‘Die dritte Schule im internationalen Privatrecht. Zur neueren Wissenschaftsgeschichte des Kollisionsrechts’ in Hans Peter Ipsen (ed), Festschrift für Leo Raape (Rechts- und Staatswissenschaftlicher Verlag 1948) 35.