Encyclopedia of Private International Law
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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.
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Chapter P.8: Private international law, history of

Kurt Siehr

For over three thousand years private international law was largely national law before becoming increasingly unified by international conventions, treaties and regional regulations. During this period of early development, the history of private international law was predominantly national in character, while following certain international trends and theories. The following is devoted to such international trends, theories and models rather than to national law of individual nations or countries.

Another issue to be determined as a preliminary is the precise definition of: private international law. It could constitute conflicts law in the modern sense or any addressing of problems involving different sets of laws for different types of person. The present author prefers the second broader approach and the conviction that private international law may even have existed, and its associated problems may have been resolved by various methods, before the development of modern bilateral conflict rules.

I. Ancient times

Four distinct models for dealing with foreign claims of protection in local institutions may be distinguished: no protection, special courts, special law and protection by national or state law.

1. No protection at all

In early times, any law, whether codified as the Code of Hammurabi (18th century BC), the Hebrew law of the Pentateuch (9th–​5th century BC) or the law of Athens (Dracon of 621 and Solon of 594 BC) or Rome (Twelve Tables, 450 BC) or uncodified, constituted a covenant of peace and was strictly limited to the free citizens of the respective community, unless a host protected a foreign guest or a treaty with the foreign community guaranteed protection of the foreigner. These laws applied only to local citizens within the local territory and as such –​ in modern terms –​ they were mandatory in nature. Foreign law was ignored.

2. Special courts in foreign countries

According to reliable sources there were in ancient Egypt some courts or judicial bodies which administered Greek law in a territory governed by Egyptian law (Erich Berneker, Die Sondergerichtsbarkeit im griechischen Recht Ägyptens (Beck 1935) 144–​53; Hans Lewald, ‘Conflits de lois dans la monde grec et romain’ (1968) 57 Rev.crit.DIP 419, 437; Michael Rostovtzeff, The Social and Economic History of the Hellenistic World (OUP 1941) 324; Hans Julius Wolff, Das Problem der Konkurrenz von Rechtsordnungen in der Antike (Winter 1979) 57 ff). These chrematist courts may have been the forerunners of later special courts for foreigners in a host state.

3. Special substantive law for foreigners

The ius civile of Roman law applied exclusively to Roman citizens, and did not extend to foreign people or to relations of Roman citizens with foreigners (peregrini). For these relations the Romans, especially the praetor peregrinus, applied the →ius gentium (Max Kaser, Ius gentium (Böhlau 1993) 4 ff; Moritz Voigt, Die Lehre vom jus naturale, aequum et bonum und jus gentium der Römer, vol 1 (Voigt & Günther 1856) 64, 399 ff, vol 2 (Voigt & Günther 1858) 268 ff). This ius gentium can be characterized by four distinctive features. First, the ius gentium was also Roman substantive law. It was created by Roman authorities (praetor peregrinus) who –​ apart from the modern term ius gentium as law between states –​ applied that law in cases with and between foreigners. Second, the ius gentium was not based on comparative research, but p. 1391rather on traditional knowledge and general experience which requires no proof or evidence. It was a kind of customary law (Max Kaser, Ius gentium (Böhlau 1993) 6). Third, the ius gentium was less rigid and formalistic than the ius civile. It was more equitable and akin to natural justice (ius naturale). Finally, the ius gentium was not law for foreigners (Fremdenrecht, conditions des étrangers) since it also applied to Romans when they entered into legal relations with foreigners.

4. Protection by national or state law

Before the Constitutio Antoniniana (ca 212 AD) was given and Roman citizenship was awarded to everybody living in the Roman Empire (apart from certain subjugated tribes or nations) the personal principle prevailed (Greek law for Greek citizens, Roman law for Romans, Jewish law for Jews), and the principle of →choice of law or of the →lex fori is likely to have protected also foreigners living in the Eastern or Western part of the Roman Empire (Barbara Pferdehirt, ‘Neubürger mit Begeisterung? Die Auswirkungen der Constitutio Antoniniana auf das Individuum’ in Barbara Pferdehirt and Markus Scholz (eds), Bürgerrecht und Krise. Die Constitutio Antoniniana 212 n. Chr. und ihre innenpolitischen Folgen (RGZM 2012) 59 ff). Late in antiquity the Codex Theodosianus was published in 438 AD. The vulgar Roman law lost its formal rigour and could be administered by local judges. Also regional codes (eg Lex Romana Visigothorum, Lex Burgundionum) provided protection until in the Middle Ages conflicts between city statutes and the common Roman law had to be decided.

II. Middle Ages

The development of private international law in the Middle Ages can only be understood by realizing the potential conflicts to be resolved or ignored.

1. Conflicts with the person’s law of origin

Having conquered certain regions, the Roman Empire tended not to alter the indigenous law. Rather the inhabitants of such regions continued to be governed by their law of origin. If seized by a court of Roman law, a party could plead that application of their law of origin by making a professio iuris like this: professo sum ex natione mea lege vivere langobarda (Karl Neumeyer, Die gemeinrechtliche Entwicklung des internationalen Privat-​ und Strafrechts bis Bartolus (Schweitzer 1901 and 1916) I 98). But this system of personality could not last indefinitely as it was complained that ‘it does happen that five men walk or are seated together and that no one has the same law as another of his brothers’ (Bishop Agobard of Lyon, ca 770–​840). After a considerable period this personality system vanished (Simeon L. Guterman, ‘The Principle of the Personality of Law in the Early Middle Ages: A Chapter in the Evolution of Western Institutions and Ideas’ (1966) 21 U.Miami L.Rev. 259 ff; Karl Neumeyer, Die gemeinrechtliche Entwicklung des internationalen Privat-​ und Strafrechts bis Bartolus (Schweitzer 1901 and 1916) I 22 ff; Louis Stouff, ‘Il principio della personalità delle leggi dalle invasioni barbariche al secolo XII’ (1967) 21 Dir.internaz. 80 ff) to be revived in the 19th century by Pasquale StanislaoMancini (1817–​1888) and the principle of nationality.

2. Conflicts with local statutes

A form of interstate conflict or conflict of hierarchy arose with respect to local statutes, principally in Italian towns which were permitted to modify the common Roman law (ius commune). According to medieval constitutional law, cities were allowed to do so but the issue arose of whether all assets wherever located, and all persons whether or not citizens, were bound by these statutes, called statuta. One would imagine that the statuta stipulated their territorial and personal dimensions. But they incorporated no specific term from which the applicability of the statute could be determined by interpretation. This task of interpreting the local statuta was taken up by the jurists of Italian universities, founded in the 11/​12th centuries. These jurists wrote a Gloss and commentaries on the Corpus iuris civilis (henceforth CIC) and tried to systematize Roman law contained in the CIC as a collection of single questions answered by Roman jurists such as Papinian or Ulpian. In the CIC there is no special part, chapter or questions on conflicts law. Thus the early jurists (→Aldricus of the 12th century, Accursius of the early 13th century, Bartolus of Sassoferrato of the early 14th century (→Bartolus), his pupil Baldus of the late 14th century and other scholars of →France and →Italy) chose as the starting point for their ideas on conflicts law the beginning of the Codex p. 1392Iustiniani (Codex I, 1 on ‘Cunctos populos’ of 529 AD), repeating the Edict of Thessalonica of 380 AD, which introduced Christianity into the entire Roman Empire (Max Gutzwiller, Geschichte des Internationalprivatrechts. Von den Anfängen bis zu den großen Privatrechtskodifikationen (Helbing & Lichtenhahn 1977) 16 ff). These jurists were called glossators and commentators, and developed a certain system according to which local statutes should be interpreted if they were silent regarding their territorial and personal applicability. The scholars finally agreed that local statutes are either statuta personalia, statuta realia or statuta mixta, ie the statutes applied only to certain people, exclusively to certain assets or to certain acts which should be qualified neither as personal nor as acts in rem (Max Gutzwiller, Geschichte des Internationalprivatrechts. Von den Anfängen bis zu den großen Privatrechtskodifikationen (Helbing & Lichtenhahn 1977) 93 ff). Whether these statuta were to be qualified as personalia, realia or mixta, the scholars sought to ascertain whether the statutes were prohibitive (statuta prohibitive, applicable to all persons), permissive (statuta permissive, applicable to all persons), favourable (statuta favorabiles, applicable to all persons) or odious (statuta odiosa, restricted to the lex fori). Ultimately Bartolus decided the qualification according to the formulation of a statute (see II.4.b) below).

3. Conflicts between general local and common Roman law

The Roman Empire extended in 100 AD to all countries around the Mediterranean Sea and to more than 40 different modern states. Although Roman law was or became applicable in most of these territories, local law was applied to local matters and even to matters having some contacts with a different foreign local law. This law was not the so-​called vulgar Roman law but rather local law, in many cases Hellenic law particularly in the Eastern territories of the Roman Empire. Here also interstate conflicts could arise and had to be resolved, but no special rules applied except the principles of ius gentium, special statutes of limited applicability, and distorted ‘vulgar local law’ (Ludwig Mitteis, Reichsrecht und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs (Teubner 1891)). Roman law proper applied particularly when the Emperor issued an edict (generally applicable regulation) or gave a rescriptio (binding answer) to specific local questions to be answered in the name of the Roman Emperor.

4. Conflicts with the law of foreign countries

With respect to the law of foreign countries two different methods have to be distinguished.

a) Lex mercatoria

In the Middle Ages (particularly at the time of the Hanseatic League) a certain →lex mercatoria was applied by fair and market courts but not by ordinary state courts (Alice Beardwood, Alien Merchants in England 1350–​1377 (Medieval Academy of America 1931) 76 ff; Wyndham Beawes, Lex mercatoria (6th edn, Rivington 1813); Wyndham Anstis Bewes, The Romance of the Law Merchant (Sweet & Maxwell 1923); Frank Eichler, Lex mercatoria –​ das englische Marktrecht des Mittelalters (Mauke 2008); William Mitchell, Essay on the Early History of the Law Merchant (CUP 1904); Derek Roebuck, Mediation and Arbitration in the Middle Ages, England 1154–​1558 (Holo Books 2013) 70 ff).

b) Solution by some rules of delimitation

Apparently also with respect to international conflicts, courts and scholars applied the same statutist method as developed for interstate or interregional conflicts. This can be shown by the famous ‘quaestio angelica’ (English question) discussed by Bartolus in Commentaries to Codex 1.1.1. under no 42 (= Friedrich Meili, ‘Die theoretischen Abhandlungen von Bartolus und Baldus’ (1894) 4 NiemZ 340, 345 ff, and Joseph Henry Beale, Bartolus on the Conflict of Laws (Harvard University Press 1914) 44 ff). Bartolus asked for the governing succession law if a person died in Italy (with no primogeniture succession) and also bequeathed property in England (with primogeniture succession) to the English estate. Bartolus’ response is highly formalistic and hardly satisfactory: if the statute reads ‘bona decedentium veniant …’, then the statute is a real one and the respective lex rei sitae applies, whereas if the statute reads ‘primogenitus succedat …’, then the statute must be personal and the law of the deceased person applies.

III. Development from the 16th to the 18th century

Although literature on conflicts law was written everywhere in Latin as the scientific lingua p. 1393franca, the development in some European regions diverged due to political and social factors.

1. Development in France

France was a centrally organized state but still lacked uniform private law until it was consolidated in the Code civil of 1804. France was divided into two major parts. The North was called pays de coutume based on regional customs (eg Coutume de Paris or Coutume de Bretagne), local statutes and subsidiarily Roman law, whereas the South was pays de droit écrit based principally on Roman law. Conflicts arose between these two parts as well as between different coutumes. These problems were discussed very early by two scholars: Charles Dumoulin (Carolus Molinaeus: 1500–​66) and Bertrand d’Argentré (Argentraeus: 1519–​90). Dumoulin still adhered to the Italian statutists and further developed this method, introducing →party autonomy as a →connecting factor (Franz Gamillscheg, Der Einfluss Dumoulins auf die Entwicklung des Kollisionsrechts (De Gruyter/​Mohr Siebeck 1955) 110 ff; Max Gutzwiller, Geschichte des Internationalprivatrechts. Von den Anfängen bis zu den großen Privatrechtskodifikationen (Helbing & Lichtenhahn 1977) 69 ff; Armand Lainé, Introduction au droit international privé contenant une étude historique et critique de la théorie des statuts (Pichon 1888 and 1892) I 294 ff). Dumoulin was an open minded person, a fervent Calvinist and proponent of the unification of French private law. Argentré was quite different, an ardent citizen of Brittany and known for his espousal of the famous assertion ‘les coutumes sont réelles’. This, however, did not mean that, in Argentré’s view, the coutumes were restricted to local matters, but rather also exerted certain extraterritorial effects, as developed by Argentré himself and by his followers in later centuries (Max Gutzwiller, Geschichte des Internationalprivatrechts. Von den Anfängen bis zu den großen Privatrechtskodifikationen (Helbing & Lichtenhahn 1977) 81 ff; Armand Lainé, Introduction au droit international privé contenant une étude historique et critique de la théorie des statuts (Pichon 1888 and 1892) I 311 ff).

French practice and theory before 1804 are dealt with extensively by George-​René Delaume.

2. Development in the Netherlands

While the situation in the Netherlands was quite different from that in France, it nevertheless bore certain comparisons. From 1568 until 1648 the Low Countries fought for their independence until they were recognized by the Peace Treaty of Westphalia (1648) as a Dutch Republic consisting mainly of Calvinist inhabitants. Law in the Netherlands was not unified until 1838 when the Burgerlijk Wetboek (a Dutch version for the French Code civil) entered into force. In various regions different laws applied, and hence many conflicts arose in interregional and international cases, eg in the case of the ‘famosissima quaestio’ (Daniel Josephus Jitta, Die ‘famosissima quaestio’ von 1693 (Enke 1909); Alfred E. von Overbeck, ‘La famosissima quaestio resolue?’ in Comparability and Evaluation, Essays Dimitra Kokkini-​Iatridou (Nijhoff 1994) 251 ff).

A couple was domiciled in Bruxelles at the time of marriage and subsequently. The wife died leaving real estate located in Bergen-​op-​Zoom (North of Antwerp in North Brabant). The wife had already owned the property at the time of marriage and she bequeathed it by a duly written will to her sisters. Matrimonial property in Bruxelles did not comprise pre-​marital property, so that the wife could dispose of her pre-​marital property without limitation. In Bergen-​op-​Zoom, however, communio universalis (community property) governed as the →matrimonial property regime of spouses, according to which the deceased wife could only dispose of half of her property located in Bergen-​op-​Zoom. The husband challenged the will, claiming one half of the estate in Bergen-​op-​Zoom. Ultimately the Suprema Curia Brabantiae in The Hague ruled in favour of the husband, holding that the lex rei sitae governed, as opposed to the law of the spouses’ domicile.

More significant are the discussions of Paul Voet (1619–​67), his son Johannes Voet (1647–​1714) (→Voet, Paulus and Johannes) and Ulrich Huber (1636–​94) (→Huber, Ulrik). These scholars, proud of this recently recognized independence of the Netherlands, accepted Argentrés theory of →territoriality but added an important factor of great influence. They held the view that rights acquired abroad should be recognized as vested rights by comitas gentium (→comity of nations), and be enforced by local p. 1394courts or agencies (Roeland Duco Kollewijn, Geschiedenis van de Nederlandse wetenschap van het internationaal privaatrecht tot 1880 (Noord-​Hollandsche Uitg. 1937) 78 ff; Eduard Maurits Meijers, ‘L’histoire des principes fondamentaux du droit international privé à partir du Moyen Age, spécialement dans Europe occidentale’ (1934) 49 Rec. des Cours 543, 653 ff; Friedrich Meili, ‘Ein Specimen aus der holländischen Schule de internationalen Privatrechts: (Ulricus Huber 1636–​1694)’ (1898) 8 NiemZ 189 ff; Johannes Marinus Bernardus Scholten, Het begrip comitas in het internationaal privaatrecht van de Hollandse Juristenschool der zeventiende eeuw (Dekker & van de Vegt 1949) 11 ff). Here we find one of the first influences of public international law on conflicts law, perhaps inspired by Hugo Grotius (1583–​1645) and his work De iure belli et pacis (1625).

3. Development in German-​speaking countries

Also the German speaking countries of →Austria, →Germany, →Liechtenstein and →Switzerland lacked a unified written private law. Law was to a large extent local law with Roman common law as subsidiarily applicable law. Unification came later: in Austria and Liechtenstein the ABGB of 1811, in Switzerland the Code of Obligations of 1881 and the Civil code of 1907 and in Germany the BGB of 1896. Hence, most of the conflicts cases arising in these countries were interregional, rather than international conflicts cases.

The scholars from German-​speaking countries contributed to conflicts law in Latin, as did most European authors before 1800. The most significant individuals were Benedict Carpzov (1595–​1666, judge in Saxony), David Mevius (1609–​70, practising jurist and professor in Swedish Pomerania), Samuel Stryk (1640–​1710, judge and professor in Saxony), Heinrich von Cocceji (1644–​1719, professor in Heidelberg, Utrecht and Frankfurt/​Oder) and Johann Nikolaus Hert (1651–​1710, professor in Giessen). When consulted, these scholars supplied answers to practical cases, while seeking to generalize their opinions in their treatises on conflict of laws. Mevius supervised the first book on bankruptcy (with international dimensions) and Hert coined the expression collisio legum in his book De collisione legume dissertatio (1688). All of these scholars sought to escape the rigid rules of the Italian medieval statutist and proposed reasonable solutions for cases of daily practice (Christian von Bar and Peter H. Dopffel, Deutsches Internationales Privatrecht im 16. und 17. Jahrhundert, 2 vols (Mohr Siebeck 1995 and 2001) I and II).

4. Development in Great Britain

England took no part in the continental discussion of conflicts problems. William Blackstone (1723–​80), in his Commentaries of the Laws of England (1st edn, 1765–​9), wrote that relations between foreigners are subject to the law merchant (see II.4. above) as part of the law of nations (vol IV, 9th edn, 1783, 67). In all other cases the lex fori is applied by local courts with jurisdiction, and occasionally the judges referred to foreign, mostly Dutch authorities (D.J. Llewellyn Davies, ‘The Influence of Huber’s De Conflictu Legum on English Private International Law’ (1937) 18 BYIL 49).

The situation was quite different in Scotland. United with England since 1707 to form part of the Kingdom of Great Britain, Scotland traditionally had close contacts with the Netherlands. Students went to Leiden and Utrecht and brought with them new Dutch ideas about conflicts law. Lord Kames (1696–​1782), a contemporary of Blackstone, devoted an entire chapter in his ‘Principles of Equity’ to ‘foreign matters’ (Henry Home Lord Kames, Principles of Equity (Millar 1760) 265 ff).

5. Summary

At the end of the 18th century conflicts law was still rather primitive in form. Parties, courts and lawyers tended to muddle through a bulk of learned writings, attempting to find an appropriate solution for their cases at issue. There was hardly any guiding principle or convincing theory to assist private parties involved in an interregional or international dispute. Evidence for this lack is provided by the codifications in the late 18th century and the early 19th century. Neither the Prussian ALR of 1794 nor the French Code civil of 1804 or the Austrian ABGB of 1811 contained a comprehensive chapter on private international law. Only isolated provisions vaguely indicated the spatial and personal dimension of their contents.

IV. Private international law in the 19th century

Modern private international law commenced in the 19th century. In many countries, scholars p. 1395discussed the problems, found new solutions and occasionally went astray. Most scholars were also practitioners, giving guidance to the courts and the legislatures of their respective countries, as well as contributing to multilateral international conventions which originated in the 19th century.

1. Literature on private international law

National languages have now supplanted Latin in writings on private international law intended for students and practitioners of the bar and judges in courts (see the bibliography with Joseph Henry Beale, A Treatise on the Conflict of Laws, vol I/​1 (Harvard University Press 1916) XVII–​LXX). Many books have been translated into English (eg the Germans Ludwig von Bar and Friedrich Carl vonSavigny, Friedrich Carl von), French (eg the Dutch author Tobias Michael Carel Asser, the Italian scholar Pasquale Fiore), Italian (eg the Belgian François Laurent and the German author Friedrich Carl von Savigny) and Spanish (eg the French author Jean Jacques Gaspard Foelix and the Italian scholar Pasquale Fiore). Apart from this formality, scholars concentrated on all problems of private international law and their works can be characterized in three respects.

a) From Bartolus and Huber to national conflicts law

In the early 19th century authors continued to cite and argue with the old authorities of the Middle Ages and the early modern times, seeking to rationalize or criticize their ideas (Nicola Rocco, Dell’uso e autorità delle leggi del Regno delle Due Sicilie (Guttemberg 1837) 121 ff). In English-​speaking countries in particular a following developed for →Huber, Ulrik, with scholars accepting and basing their research on Huber’s theory of comity and vested rights (Samuel Livermore, Dissertation on the Questions which Arise from the Contrariety of the Positive Laws of Different States and Nations (Levy 1828) 21 ff; Joseph Story, Commentaries on the Conflict of Laws (Billiard, Gray 1834) 37 ff; D.J. Llewellyn Davies, ‘The Influence of Huber’s De Conflictu legum on English Private International Law’ (1937) 18 BYIL 49). In continental European countries, writers on private international law concentrated increasingly on national conflicts law as soon as conflicts law became codified, particularly in Italy (1865), Switzerland (1891) and Germany (1896). This form of ‘nationalization’ of conflicts doctrine continued once conflicts law was codified in national statutes on private international law in the 20th century.

b) Bases of private international law in public international law

Since the middle of the 19th century certain authors have based their ideas about private international law on public international law. In 1851 Pasquale Stanislao Mancini(Mancini, Pasquale Stanislao (1817–​88)), scholar, politician and ardent Italian patriot, delivered his famous inaugural speech (Prelezione) at the University of Torino on Della nazionalità come fondamento del diritto delle genti (Botta 1851). He was of the opinion that nationality (not citizenship) of people with the same language and customs should be the foundation of modern states, as opposed to territories created as states by conventions, treaties or international pacts. The Kingdom of Savoy at that time was fighting the Austrians as the occupying power in Italy. This nationality theory persisted for a considerably long time until it declined in the 20th century (Arthur Nussbaum, ‘Rise and Decline of the Law-​of-​Nations Doctrine in the Conflict of Laws’ (1942) 42 Colum.L.Rev. 189–​208).

c) New directions for modernization

Among the many new ideas of conflicts law three most important developments should be mentioned: the shift from statutes to relationship, nationality or citizenship as →connecting factor and internationalization of conflicts law by international conventions.

(i) The German law professor, historian and Prussian minister Friedrich Carl von Savigny(Savigny, Friedrich Carl von (1779–​1861)) contributed immensely to conflicts law in the last vol 8 of his work System des heutigen Römischen Recht published in 1849 and translated into English by William Guthrie in 1869 and 1880 (2nd edn). Savigny no longer relied on statutes and their interpretation but rather on the legal relationship in question. For Savigny, every legal relationship should be examined for that ‘legal territory to which, in its proper nature, it belongs or is subject (in which it has its seat)’ (Savigny 108; Savigny, A Treatise on the Conflict of Laws and the Limits of their Operation in Respect of Place and Time, translated by William Guthrie (Clark 1880) 89). As soon as law became comprehensively codified in many countries (Prussia: 1794, France: 1804, Austria: 1811; p. 1396Baden: 1809/​10; Netherlands: 1838; Canton Zürich: 1854, Saxony: 1863; Baltic States: 1864; Italy: 1865), not the single article determined its spatial and personal applicability, but rather the introductory norms placed either at the beginning of the code (eg art 1 Privatrechtliches Gesetzbuch (PGB) Canton Zürich) or contained in a separate statute (eg EGBGB).

This search for the law governing a legal relationship became the guiding feature for future research, case-​law and codification of private international law (Max Gutzwiller, Der Einfluß Savignys auf die Entwicklung des Internationalprivatrechts (Freiburg 1923)). We still use this notion when looking for the ‘closest connection’ in the EU Rome Regulations and other regulations.

(ii) Pasquale Stanislao Mancini(Mancini, Pasquale Stanislao), as already mentioned (see IV.1.b) above), advocated that ‘nazionalità’ should be the basis of the law of nations. Accordingly it was no surprise that he influenced the Italian legislature of 1865 to provide ‘nazionalità’ of persons as →connecting factor for international (not interstate) family and succession law of conflicts law (arts 6, 8 Codice civile 1865). This example was sufficiently persuasive to be imitated by legislatures of other countries and in early Hague conventions.

(iii) It was also Pasquale Stanislao Mancini who advocated that international conventions should be concluded in order to achieve uniformity and harmony in the application of conflicts rules (Mancini, ‘De l’utilité de rendre obligatoires pour tous les Etats, sous la forme d’un ou de plusieurs traités internationaux, un certain nombre de règles générales du Droit international privé pour assurer la décision uniforme des conflits entre les différentes législations civiles et criminelles’ (1874) 1 Clunet 221 ff, 285 ff). Mancini died in 1888, but some years later Tobias Michael Carel Asser (1838–​1913) succeeded in convening the first session of the Hague Conference on Private International Law in 1893. Since then the Hague Conference has prepared many conventions on private international law, civil procedure and legal assistance (see IV.3. below).

2. Case-​law of national court

Since antiquity, cases have been the essential arena of private international law, and this has not changed until today. Courts face the conflicts problem, rely on able attorneys and consult the treatises of learned scholars.

a) Bilateral rules of conflict of laws

With the statutists it was merely necessary to determine whether a specific local statute applied. However, as soon as this approach was abandoned in a search for the legal system with the closest connection, bilateral conflict rules were formulated indicating the governing law, be it local or foreign law. The courts of many countries assumed this task, and by interpretation ruled that a uniform conflicts rule on the applicable law of the forum should be extended by analogy to a bilateral rule, applying foreign law on the same basis of the applicable →connecting factor (see for Germany Hans Lewald, Das deutsche internationale Privatrecht (Tauchnitz 1931) 6 ff).

b) Qualification of legal problems

Bilateral conflicts rules do not prevent all legal problems being treated similarly in conflicts cases. These problems also arose first in the courts, for example in the issue of how English or American statutes of limitation should be qualified –​ whether as matters of substantive law subject to the substantive law governing the lawsuit, or as a matter of procedural law subject to the law of the forum. At first the courts were unsure and decided that a claim does not become statute-​barred because the law governing the claim is silent regarding limitation and because the law of the forum qualifies limitation as a matter of substance as opposed to procedure (German Imperial Court of Justice (Reichsgericht) of 4 January 1882, (1882) 7 RGZ 21). Very soon, however, the problem of qualification or characterization (→Classification (characterization)) was ‘discovered’ by Franz Kahn(Kahn, Franz) and Étienne Bartin(Bartin, Étienne).

c) Renvoi of the law applicable

Over 150 years ago in 1841, one of the first cases of →renvoi was decided in the English case Collier v Rivaz (163 ER 608). The English court was seized with the case of a British subject who died domiciled in →Belgium leaving codicils in a form which were valid under English law but invalid under Belgian law. The English court accepted a renvoi of Belgian private international law (applicable as the laws of the deceased’s last domicile) to the English lex patriae and deemed the codicils valid.

3. p. 1397National statutes on private international law

National legislation began to develop in the late 18th century. The early focus of codification was not on private international law but on substantive private law (Prussian ALR of 1794, French Code civil of 1804 and Austrian ABGB of 1811) with a few scattered provisions on conflicts problems. This changed half a century later. New codifications of private law were launched and –​ remarkably –​ a number of introductory provisions on the conflicts issue were at the head of the codifications: §§ 1 ff PGB of the Swiss Canton Zürich of 1854; art 14 ff Código civil of 1855 of Chile; art XXVII ff; Baltic Civil Code of 1864; art 6 ff, Codice civile of Italy of 1865; art 1 ff Código civil of Argentine of 1871; and Swiss Statute on Domiciliaries and Residents of 1891.

Nevertheless these introductory provisions were also incomplete and gave no guarantee of international harmony or unification. This could only be achieved by international conventions as advocated by →Mancini, Pasquale Stanislao.

4. International conventions

In 1889 a congress of delegates from Argentina, Bolivia, Brazil, Chile, Paraguay, Peru and Uruguay convened in Montevideo and prepared drafts of international conventions on International Civil Law and on International Commercial Law. This unification was limited to American counties, but was later continued by the Inter-​American Council of Jurists, which drafted the Código Bustamante of 1928 (Convention on Private International Law (Bustamante Code), adopted at Havana on 20 February 1928 at the Sixth International Conference of American States; OAS, Law and Treaty Series, No 34; →Bustamante, Antonio Sánchez de) accepted by several Latin-​American countries (see Jürgen Samtleben, Internationales Privatrecht in Lateinamerika, vol 1 (Mohr Siebeck 1979) 13 ff).

In 1893 the first session of the →Hague Conference on Private International Law took place in The Hague. Tobias Michael Carel Asser, a founding member of the Institut de droit international, founded in Gent/​Belgium in 1873, succeeded in persuading the Dutch government to invite state delegates to The Hague with a view to achieving the goal declared in the Dutch Government Memorandum of 1893 and addressed to the invited powers: ‘In no other way, than by international agreement, cast in the form of conventions or harmonized legislation, can conflicts of law be resolved in a truly effective way’ (Memorandum addressed by the Government of the Netherlands to the Powers invited to the Conference on Private International Law (1893), (1993) 40 NILR XV, XVI).

5. Summary

Most problems of private international law were already subject to discussion in the 19th century. Only few novel problems arose later for resolution (eg mandatory rules of third states). Conflicts law was still rather rigid and –​ as considered by most scholars –​ apolitical and neutral. This changed some 100 years later in the late 20th century.

V. Recent developments since 1900

Two world wars plunged most European countries into post-​war financial and economic crises. After the Second World War the so-​called Cold War prevailed for over 40 years. The EU was founded and began to integrate European Member States. In 1990 the Balkan War broke out and Yugoslavia collapsed and split into several independent states. Finally, globalization got under way with rapid information, increased international trade and considerable personal mobility between states. These factors also impacted on private international law.

1. Nationalization by statutory law, literature and case-​law

Despite unification by Hague conventions, private international law became generally national in character. Conflicts law was incorporated into national statutory provisions as soon as new civil codes were introduced (eg Greek Civil code 1940 (Astikos Kodikas of 23 February 1946, A.N. 2250/​1040; FEK A 91/​1940, 597), Italian Civil Code (Codice Civile, Gazz.Uff. 4 April 1942, no 79 and 79bis; edizione straordinaria), Egypt 1948 (Law No 131/​1948 of 16 July 1948, al qānūn al madanī), Portuguese Código civil 1966 (Código Civil of 25 November 1966, Decreto Lei No 47–​344)) or once obsolete statutory provisions became so unsatisfactory that a jurist could be persuaded to draft a fresh statute on private international law (eg Austrian Federal Code on Private International Law (Bundesgesetz über das internationale p. 1398Privatrecht of 15 June 1978, BGBl. No 304/​1978), Turkey 1982 (Law No 2675 of 1982 on Private International Law and Procedure), Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl II 5 = AS 1988, 1776); Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz.Uff, Supplemento Ordinario No 128 of 3 June l995), Belgian Private International Law Act (Wet houdende het Wetboek von international privaatrecht/​Code de droit international privé of 16 July 2004, BS 27 July 2004, pp 57344, 57366), Polish Private International Law Act (Official Journal 2011 No 80, pos 432), the Netherlands 2011 (Book 10 of the Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992) and the Czech Republic 2012 (Act No 91/​2012 Sb, on private international law)). Since 1963, East European socialist countries introduced special statutes on private international law (eg Soviet Union 1961, Czechoslovakia 1963, Poland 1965 and the German Democratic Republic 1975). These sources had to be explained in treatises and commentaries in order to provide guidance for courts, lawyers and students. Case-​law was compiled and served as precedent for daily practice. Hardly any foreign sources or authorities were cited in national judgments or legal literature. Courts and scholars dealt with certain national specialties, for example England with the ‘double renvoi’ (Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws, vol 1 (15th edn, Sweet & Maxwell 2012) no 4-​001), France with ‘lois d’application immediate’ (Phocion Francescakis, La théorie du renvoi et les conflits de systèmes en droit international privé (Sirey 1958) 11 ff), Germany with the ‘Vorfrage’ (George Melchior, Die Grundlagen des deutschen IPR (De Gruyter 1932) 245 ff) and Italy with the ‘rinvio recettizio’ (Rodolfo De Nova, ‘New Trends in Italian Private International Law’ (1963) 28 LCP 808, 810–​13).

2. Constitutionalization

Once constitutional law (→Constitutional law and private international law) became directly enforceable after World War II, it also affected private international law. National constitutional law as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) and the Treaty of the European Economic Community (Treaty of 25 March 1957 establishing the European Economic Community, 294–​298 UNTS, later EU) had an enormous influence on conflicts law.

a) National constitutional law

Particularly in Germany, but also in other countries, the issue arose whether conflicts law determines not only the applicable private law but also the pertinent constitutional law (Murad Ferid, ‘Wechselbeziehungen zwischen Verfassungsrecht und Kollisionsnormen’ in Vom deutschen zum europäischen Recht. Festschrift Hans Dölle, vol 2 (Mohr Siebeck 1963) 119–​48, 143) or whether national conflicts law itself has to be compatible with standards of the constitutional law of the forum state. More than 20 years after entry into force of the new Basic Law for the Federal Republic of Germany (Grundgesetz of 23 May 1949, BGBl. 1, as amended) the Federal Constitutional Court decided that all German rules on private international law have to be compatible with the constitutional requirement of basic rights as provided by the German constitution (Federal Constitutional Court of Germany (BVerfG), 4 May 1971, 31 BVerfGE 58, with comment by Friedrich K. Juenger, ‘The German Constitutional Court and the Conflict of Laws’ (1972) 20 Am.J.Comp.L. 290–​8). The case concerned the question whether a woman validly divorced under German law can legally marry a foreigner whose national law does not recognize the divorce and therefore prohibits the new marriage. It was held that declining such a marriage by German civil registrars would violate the basic right to remarry (art 6(1) Basic Law for the Federal Republic of Germany) after the previous marriage has been dissolved. Accordingly a new marriage cannot be declined by German civil registrars. One month later the Swiss Federal Court decided the same problem the same way (Federal Court of Switzerland (Schweizerisches Bundesgericht), 3 June 1971, BGE 97 I 389).

The following years the inequality of man and women, husband and wife was declared unconstitutional (Federal Constitutional Court of Germany (BVerfG), 22 February 1983, 63 BVerfGE 181, Corte cost 5 March 1987, n 71, 23 Riv.Dir.Int’le Priv. & Proc. 297 (1987)) and a number of states soon passed legislation p. 1399abolishing such inequalities (Austria: 1978; Germany: 1986; Switzerland: 1987; Italy: 1995).

b) European Convention on Human Rights

All 47 Member States of the Council of Europe are state parties to the ECHR. They submitted to the jurisdiction of the European Court of Human Rights (ECtHR) in Strasbourg and this Court may be referred to on potential human rights violations in specific cases (→Human rights and private international law). Such a violation has been assumed in several international cases. For example, the father of an illegitimate child has a right to contact his child and such a contact cannot be opposed without reason by the child’s mother (Görgülü v Germany App no 74969/​01 (ECtHR 26 February 2004), 2004 HRLJ 93); a child lawfully adopted abroad has to be treated as an adopted child after a certain period (14 years) even if the foreign →adoption is not recognized (Negrepontis-​Giannisis v Greece App no 56759/​08 (ECtHR, 3 May 2011)); and an abducted child should not be returned to the country of abduction if such return would be adverse to the child’s welfare (Neulinger v Switzerland App no 41615/​07 (ECtHR 6 July 2010)). Not all of these decisions have met with approval. The ECtHR is criticized for paying insufficient respect to special international agreements which are concluded in order to combat abuses and international fraud (see now Povse v Austria App no 3890/​11 (ECtHR, 18 June 2013) also published in 2013 FamRZ 1793).

c) Treaty of the European Union: Europeanization of European private international law

The Treaty of the European Union (TEU, Consolidated Version of the Treaty on European Union [2012] OJ C 326/​13) with its guaranteed freedoms may also impose limits on national legislators of private international law, as for example in the company law field with respect to cross-border movement of →companies and the maintenance of legal capacity (→Capacity and emancipation). With respect to company law the ECJ favoured the theory of the law of foundation to govern also the company’s capacity to sue and to be sued: ECJ 3 November 2002 in the case of Überseering (Case C-​208/​00 Überseering BV v Nordic Construction Company Baumanagement GmbH [2002] ECR I-​9919) (→Companies).

In the law of personal names the ECJ favoured the parents’ choice of a different →nationality to choose the name of their child according to either nationality: ECJ of 2 October 2003 in the case of Garcia Avello (Case C-​148/​02 Carlos Garcia Avello v Belgian State [2003] ECR I-​11613), and with respect to change of the parents’ domicile the ECJ was in favour of the law of first domicile and registration of the child with the civil registrar: Case C-​353/​06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-​7639) in the case of Grunkin Paul (→Names of individuals). The ECJ only decided that a certain result is incompatible with the TEU, but failed to mention how European private international law should be properly formulated.

Today, private international law in Europe has become almost completely European law. Over ten regulations and directives with over 500 articles apply. In the near future these individual sources will be merged into a comprehensive European Code of Private International Law, thereby completing the process of the Europeanization of private international law within the EU.

3. Policy-​orientated conflicts law, mandatory rules

In the past private international law was thought to be rather formalistic and strict. Justice had to be administered under substantive law to be applied by the competent forum. This attitude has changed since the Second World War. Three phases can be distinguished.

a) Overriding mandatory provisions, especially of third countries

One purpose of private international law is to select the applicable private law system which governs an international dispute. Public law is, however, not selected by private international law. But foreign →overriding mandatory provisions can be given effect in private law disputes.

b) Habitual residence and party autonomy

Since the 19th century many continental European, Latin American and Asian countries supported →Mancini, Pasquale Stanislao and his plea for nazionalità as the primary →connecting factor in matters of family and succession law (see IV.1.b) above). This has changed considerably and the habitual residence (→Domicile, habitual residence and establishment) of the respective person has been favoured as connecting p. 1400factor for almost 60 years and party autonomy is recognized more often.

c) Protection of the weaker party

To protect the normally weaker party is one of the most important examples of modern policy-​oriented conflicts law. Apart from the protection of children and adults, the consumer, employee and insured person are protected not only in substantive law but also in conflicts law by three kinds of provision. (i) The weaker party may bring a lawsuit against the supplier to a consumer, against the employer or the insurance company, including at the weaker party’s place of habitual residence. (ii) Any choice of court agreement is invalid if contracted before the action arose. (iii) The governing law is that of the weaker party’s habitual residence unless the chosen law is more favourable to that party (→Consumer contracts; →Employment contracts, applicable law; →Insurance contracts).

4. Traditional private international law or also ‘recognition’ of situations created abroad

Hitherto EU law has provided traditional bilateral rules of reference of universal character and avoided the limitation of the rules to domestic disputes and a resulting unilateral character of the rules. Whether this system will prevail, however, remains controversial. Especially French scholars want to limit European private international law to the ‘recognition’ of disputes arising abroad, leaving domestic disputes to national private international law (Paul Lagarde, ‘Développements futurs du droit international privé dans une Europe en voie d’unification: quelques conjectures’ (2004) 68 RabelsZ 225, 229 ff; Paul Lagarde (ed), La Reconnaissance des situations en droit international privé (Pedone 2013); Pierre Mayer, ‘La méthode de la reconnaissance en droit international privé’ in Bertrand Ancel and others, Le droit international privé. Etudes et méthodes. Mélanges en honneur de Paul Lagarde (Dalloz 2005) 547 ff). German scholars prefer the traditional system consisting of bilateral rules of reference and the recognition of foreign judgments and decisions of courts and other public authorities (Hans Jürgen Sonnenberger, ‘Anerkennung statt Verweisung? Eine neue internationalprivatrechtliche Methode?’ in Jörn Bernreuther and others (eds), Festschrift für Ulrich Spellenberg (Sellier 2010) 371 ff; Michael Grünberger, ‘Alles obsolet? –​ Anerkennungsprinzip vs. Klassisches IPR’ in Stefan Leible and Hannes Unberath (eds), Brauchen wir eine Rom O –​ Verordnung (Jenaer Wissenschaftliche Verlagsgesellschaft 2013) 81 ff). It remains to be seen which method will ultimately prevail in European private international law (Katja Funken, Das Anerkennungsprinzip im internationalen Privatrecht (Mohr Siebeck 2009); Janis Leifeld, Das Anerkennungsprinzip im Kollisionsrechtssystem des internationalen Privatrechts (Mohr Siebeck 2010); Julia Rieks, Anerkennung im Internationalen Privatrecht (Nomos 2012)).

5. From national to regional and globalized private international law

The dream of →Mancini, Pasquale Stanislao that private international law will be universally unified in international conventions (Mancini, ‘De l’utilité‘, supra IV.1. c)(iii), (1874) 1 Clunet 221 ff, 285 ff) has not been realized. The Hague Conference, which started in 1893, had only limited success because the English-​speaking countries took no part until they joined the Conference after the Second World War, while many other countries, although members, did not ratify the conventions prepared by the sessions of the Hague Conference. Other universally acting bodies (specialized agencies of the United Nations, such as the International Labour Organization in Geneva, UNESCO in Paris, →UNCITRAL in Vienna; World Intellectual Property Organization in Geneva) and independent agencies (as, eg, Commission International de l’État Civil in Strasbourg or UNIDROIT in Rome) sought less to unify private international law, instead preparing conventions on substantive law in their respective fields of activity (see Jan Kropholler, Internationales Einheitsrecht (Mohr Siebeck 1975) 43 ff).

The Hague Conference was not the only international organization preparing international conventions unifying private international law. Several regional bodies also sought to unify conflicts law at least on a regional basis. In Latin America the South American congresses and the Pan-​American Conference started as early as the 19th century reaching their highest point in 1928 when the Código Bustamante was created in Havana (see Jürgen Samtleben, Internationales Privatrecht in Lateinamerika (Mohr Siebeck 1979) 6 ff). In Europe the Scandinavian States cooperated very early until they formalized their cooperation in the p. 1401Nordic Council of 1952. The Benelux States started to draft a project on private international law but abandoned it in favour of the unification of law by the European Economic Community, the forerunner of the EU, today the main actor in regional unification of private international law in Europe. In Eastern Europe the Comecon (Council for Mutual Economic Assistance) existed from 1949 until 1991 and tried to regulate trade between the Socialist countries through special treaties and international arbitration.

Globalization of sources of private international law has not yet been achieved. Private international law is still national or regional law and we have to wait for a universal unification of this field of law.


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