1. Resolving Conflicts of Law

By the time that international law was taking its nineteenth-century form, the judicial function had become a core attribute of the sovereign states that were its subject. How each state divided the jurisdiction of courts within its own territory (including its dependent colonies) was a vital aspect of its supremacy. The practice in each would turn on the course of its individual history, the distinctions that it might draw between civil, criminal, and other causes and its conception of judges and other adjudicators.¹ At least within the extended European family of civilized nations, each state came to hold territory that was looked upon as exclusive. The courts would mostly hear proceedings arising out of events occurring within their own bounds. Those subject to claims or accusations would be present for the proceedings or would at least have notice of them. But ‘cross-border’ disputes had become endemic between the cities of medieval Italy, the provinces of pre-Revolutionary France, the principates of the Holy Roman Empire and the Netherlands provinces freed from Spanish domination after 1648. By the nineteenth century the number of such disputes was growing rapidly. New technologies of transport, growth of international trade, movements of people to and from colonies, increased possibilities of emigration both by volunteers and by the persecuted—all these things greatly increased the prospect of litigation involving a foreign element of some sort.

While the questions were at root conceived as part of international law,² they could equally arise within the sub-divided territory of a nation, rather than across its borders with another independent state. Long and intense debates in the earlier ius gentium had arisen before overarching ideas of sovereign states (p.279) had become a political reality and a plethora of small jurisdictions led to conflicts of laws among peoples who had only informal ties of race, language, and other understandings forged in a common culture. The immense impulses on the Continent towards national unifications, sparked by the French Revolution, came to be underpinned by unitary legal systems grounded on codified laws.³ In such countries private international law lost its role from the perspective of the internal state. By contrast the UK continued its three separate jurisdictions, in one of which, Scotland, the law had a basis quite distinct from that in England and Wales or in Ireland; and to its growing Empire Britain applied the same constitutional assumption. The American Federation likewise retained separate laws and courts in the various states. This was to be a difference with considerable impact as the conflict of laws began to assume modern forms in advanced states. It contributed to the idea that private international law was essentially a branch of municipal law in each state, rather than one branch of international law in general.

2. Common Law Conceptions⁴

In the ius gentium various schools had disputed over the questions in classificatory terms that would form a bridge between public and private international law. English judges might rely upon the pronouncements on the subject to be found in learned treatises, perhaps describing them simply as ‘international’.⁵ So far as concerned the public law of a state, including its criminal and revenue law, the principle of territoriality was by and large taken to confine legal enforcement to proceedings before its own courts.⁶ There was no prospect of having the punishments or penalties imposed by those courts carried out with the aid of courts and institutions in other countries—where, for instance, the miscreant or his property might be.⁷ The most that would develop, and that only slowly, (p.280)were international treaties for the extradition of alleged criminals to the country where they committed a crime in order that they might stand trial there.⁸ Without such a mutual arrangement the British view was that no obligation to extradite arose. Detention of the criminal in order to do so was wrongful.⁹ Such was the allegiance to the concept of state sovereignty.

When, however, it came to civil litigation the same scruples were less compelling. If X in State A and Y in State B concluded a contract for performance in State C and Y allegedly broke its terms, could X choose to sue Y in A, B or C?¹⁰ If so, the law of which state would determine whether the contract had been validly made? Which law would settle the questions of its interpretation, breach and remedies? And if X won in A or C, could he have the judgement recognized and enforced in Y’s State, B, where Y’s assets were likely to be? These are root issues of private international law, as it emerged in the industrializing and colonizing sectors of the world. To conclude that none of the laws or the courts of any of the countries could hear the dispute would be an evident denial of justice—something that could be regarded as ‘contrary to nature’. But when it came to more specific rules and limitations for dealing with the various issues, the solutions propounded by older civilian writers fell somewhere between two poles. The one, imbued with strong ideas of feudal or communal loyalty, strove to treat the law of the place where the issue arose as governing; the other sought, where possible, to give priority to the personal law of individuals which they were deemed to carry with them wherever they went. These magnetic tensions would seem to align with intellectual divisions between positivists and natural lawyers, but in ways that could be obscure.¹¹

(p.281) The common law perspective was positivistic in the same sense as that which underpinned its public international law. It was the great American judge, Joseph Story, who produced the first foundational treatise on the subject for common lawyers. His Commentaries on the Conflict of Lawsreviewed the existing case law from both sides of the Atlantic and brought into account much of the inherited civilian learning on the matter—a tradition stretching back to Roman law sources.¹² By way of pedigree, Story gave particular prominence to Ulrich Huber’s pithy and practical discussion of conflicts of law, written for the Dutch Provinces in 1689.¹³ From Huber he was able to reconcile the admission of foreign law into jurisdictions maintained by all-powerful states: nations could not countenance any penal law other than their own being of effect in their courts, but in civil matters they could admit foreign law by virtue of their own private international law rules. This was a condescension that they could decently offer in a spirit of comity. Story’s Commentaries were at once also published in Edinburgh. Shortly thereafter, from the British side, came William Burge’s learned Commentaries on Colonial and Foreign Law.¹⁴ While Burge’s work earned the respect of Story, Savigny, and others, it lacked the power of synthesis to be found in Story, whose work was widely (but not uncritically) welcomed in France, Germany and elsewhere, as well as in England.¹⁵

The British gained further treatises in mid-century when Robert Phillimore devoted a fourth volume of his Commentaries upon International Law to the (p.282) subject;¹⁶ and John Westlake produced a shorter, but long-lasting, Treatise on Private International Law.¹⁷ In 1896, A. V. Dicey would publish his long-awaited Conflict of Laws.¹⁸ The work, that most iconic of English treatises, followed a form that had a special appeal in the decades of high Empire. The common law on the subject, developed very largely out of precedent,¹⁹ was dubbed by Dicey in his best Austinian manner, ‘judicial legislation’.²⁰ He set forth his summation of it in a series of Rules, each of which was then elaborated, illustrated and commented upon in an exhaustive review of decisions, dicta and writings.²¹ That result could well be labelled ‘private codification’ and was in its way the precursor of the American Restatement of the subject. As such it accommodated the judges’ preference for their own shaping of the law in a form that a statutory code would have inhibited. Under a line of distinguished editors,Dicey has kept its particular authority, for there remain basic issues on which even today English courts have never reached a final conclusion and the views of authors have therefore commanded special respect.²²

Expressing heavy debts to both Story and Westlake, Dicey introduced his Rules with First Principles I–VI—precepts or maxims of strongly utilitarian character. Even at the very end of the century, he confined the whole subject to conflicts of private rights between ‘civilized countries’—that characteristic limitation upon international law as a whole in the Imperial period.²³ In relation to these countries (p.283) there was a positive legal obligation on English courts to recognize and enforce any right duly acquired under their laws (Principle I).²⁴ This principle applied in respect of any matter for which the foreign court could give effective judgment (III).²⁵ However, there were qualifications—first concerning the legitimacy of foreign judgments;²⁶ and then more generally, where there would be inconsistency with a British statute intended to have extra-territorial effect, with ‘the policy of English law’, with ‘the maintenance of English political institutions’, or where ‘the Principle of such right involves interference with the authority of a foreign sovereign’ in his own territory (II).²⁷Apart from this, an English court could take jurisdiction in any case where the parties voluntarily submitted to it (IV); and parties to a transaction were entitled to have their choice of law respected, where they made a nomination (VI).²⁸ These six Principles, said Dicey, placed a reader ‘in the right position for appreciating the meaning and effect of the body of rules which regulate the extra-territorial recognition of rights’. They are shot through with respect for the sovereign authority of independent states over their territories that was so much part of positivist international law in general.

If the substantive laws governing issues were the same in different states and were applied with equal assiduity and fairness in each of them, there would be only a residual role for private international law in any legal system. But often enough there were implacable conflicts between substantive laws or there were procedural, remedial, or costs disadvantages in one place compared with another. A positivist view of private international law countenanced an emphasis on expediency. After all, any rule that one country might adopt—permitting a court to order, for instance, that a defendant do or refrain from doing something in another country—might well be taken reciprocally into the law of other countries; and that on balance might well be disadvantageous. The common law literature before Dicey had laid considerable stress on the ‘comity’ between sovereigns by which they admitted foreign law into the proceedings of their courts. Even Phillimore, that late repository of the ius gentiumtradition in England, considered that private international law issues arose through such comity and not by any divine precept or rational dictate.²⁹ (p.284) So there was scope to consider the particular conflict that arose, the relative advantages of procedure and cost and even suspicions that the courts of a country were open to bribery or showed a distinct bias in favour of their own citizens. Some of the worst aspects of forum shopping by claimants might thus be alleviated.³⁰

Dicey’s analysis of actual rules to be found in case law and elsewhere is positivistic in other respects. He claimed the book to be a statement of what the law is, divorced from considerations of what it should be. The history of the subject, including its civilian roots, so prominent in Story, Burge, Phillimore, and Westlake, lost ground in the new work. Here was an account confined more rigorously to English and American authorities as they ranked in their time.³¹ This did not prevent Dicey from offering copious advice to judges on the best solution where none was clear from the authorities. He also asserted that the English law thus described had much common ground with the private international law of other civilized states, as witnessed in writings of jurists of the stature of Story and Savigny; and he made references to their writings. Yet those giants at base represented the opposed schools of positivism and naturalism—philosophic premises that could trigger intransigent argument. This would become all too apparent during the first attempts to reach international accord by conventions on private international law principles.³²

F. C. von Savigny’s great theoretical treatise on the resolution of conflicts of law³³ appeared six years after Story’s. In contrast to the latter, Savigny’s portrayal of an ideal private international law was imbued with the civilian faith that higher principles directed its course. As they had long done, jurists would uncover these principles, which were immanent. To this they would bring their historical learning, which in civilian Europe meant above all the study of Roman law doctrine and its later assimilation into the ius gentium. He accordingly rejected the view that this branch of international law was based upon convenience and political calculation between sovereigns. It was a position antagonistic to the very idea that states each held dominion over their geographical territories and were obliged to other states only by voluntary acts of their own will, which they might change over time.³⁴

(p.285) The doctrine could moreover be given nationalistic colour, as it was by the Italian jurist and statesman, P. S. Mancini.³⁵ Mancini started with the individual, who was conceived as carrying his personal law wherever he went and should therefore be entitled to rely upon it in the courts of other countries. This personal law, moreover, was now to be the law of his nationality, rather than any more local domicil.³⁶ In Mancini’s rationalization this personal law was to govern all matters save those that depended on the ordre public of the forum state, or on the choice of a particular law by the persons involved. In Continental Europe this rousing idea would have great attraction as part of the movement towards the self-determination of its peoples.

Just as with public international law, the private side was close to constitutional politics and particularly to nineteenth-century ideas of the nation state. But naturalists and positivists made very different assumptions about how to express that proximity. In the following paragraphs we explore a little further the relation between basic conceptions and leading doctrines of the subject as they evolved through this gestatory period.

3. Domicil and Nationality— A Conceptual Divide

The connection of a person to the country with which he was most closely associated already had a long history in the ius gentium, stretching back to Roman law precepts. It was the law of this domicil which, according to most writers, determined the capacity to marry, to enter contracts and other arrangements, and the disposition of assets on death.³⁷ Nineteenth-century contenders for personal law, as against territorial law, were arguing that it should be the presumptive approach in other legal situations. The definition of domicil, however, was a troubling conception, both as a matter of formulation and as a matter of proof. In the common law view, domicil was the place where a person had his or her permanent home—the place which was fixed at birth by family connection:³⁸ legitimate children acquired their father’s domicil, bastard children, their mother’s.³⁹ (p.286) It would come to be accepted that individuals could have only one domicil and could never be without one. They would retain it until they were legally able and willing to change it.⁴⁰ A wife, however, was obliged to take her husband’s domicil for the duration of the marriage. A domicil of choice could be achieved by taking up residence in a new jurisdiction with an animus manendi—a fixed and settled intention to remain there for good. Accordingly, individuals (other than minors or married women) retained the power to change their domicil of their own volition. The concept had a strong appeal to liberals, being unassociated with any idea of state grant.

Rules based on a relatively flexible concept of personal attachment had suited the political arrangements between kingdoms, principalities, and republics of the European continent before the post-feudal conditions sparked by the French Revolution. But once the state became the focus of exclusive power and loyalty, the political relationship between it and its citizens intensified and nationality tended to acquire an overarching importance. Accordingly, even rules of private international law came to turn on that allegiance to the state which nationality crystallized. The voluntarist notion of domicil was progressively displaced by nationality as a crucial connecting factor in codes of private law, starting with Napoleon’s Code civil. From mid-century, when Mancini gave such patriotic force to the concept of a personal law of national origin, one civilian country after another took nationality, rather than domicil, as the key factor in much private international law.⁴¹

In the UK, a binding obligation of loyalty to the Monarch unquestionably gained an immense Imperial significance, but nationality had its legal effects in matters of public obligation. In English law, nationality arose out of the simple geographical fact of birth in any British domain, no matter who the parents were. It was also taken to be irreversible, save where statute altered the situation. This would have a distinct impact, when it came to wartime searches of belligerent vessels. During the War with the United States in 1812, the British had taken British-born seamen off American ships, including even those who had obtained American nationality in order to avoid impressments into the British navy. Only in the wake of the American civil war would the Naturalisation Act 1870 allow a Briton to surrender his nationality voluntarily.⁴²

(p.287) Both the UK and the United States had kept the jurisdiction of most of their courts confined to limited areas within their union. Hence the private international law of each was taken to relate to their purely regional divisions as well as to inter-state issues.⁴³ The personal law of individuals thus needed to be associated with part-territories and the overarching concept of nationality was thus inappropriate. In the constitutions of civil law countries, however, the legal system was often conceived as a national structure, with jurisdictional regions only for administrative reasons. This was the assumption that allowed nationality to be the touchstone of personal obligations in codes of civil law; and if the country was pursuing a policy of registering its nationals in order to track their identity, as many were, this at least provided a straightforward means of proof for all legal issues, private as well as public.⁴⁴

English antagonisms against governmental authority acquiring any unnecessary knowledge of private affairs—important when it came to wealth and welfare, as much as whereabouts—stood against such outgrowths of the idea of nationality. So in private law, and indeed in certain public fields, such as revenue and bankruptcy, the concept of domicil survived. It would prove to have a useful adaptability as the Empire stretched to ever more exotic climes and the British who worked in the outreaches divided into those who were there strictly for their term of service and those who, for whatever reason, would stay on for good. Men among the latter (if not their wives and children) could acquire a domicil of choice in the new country, provided at least that it was ‘civilized’. Where an Englishwoman died in China in circumstances that would have earned her a domicil of choice had she been in a ‘civilized’ country, she was held not to gain a domicil there. So her estate was liable to pay British legacy duty.⁴⁵

Domicil was a puzzling notion, but English and American law adhered to it. Because of the distinction from nationality, it could lead into the logical circumlocutions of a renvoi. If (say) a woman died a national of State A but with a domicil in State B, and the private international law of each state referred the distribution of her assets to the other, only an arbitrary axe-blow could cut the Gordian (p.288)knot.⁴⁶ But it was scrupulous, indeed zealous, lawyers who set about resolving the dilemma—without definitive results.⁴⁷ The issue continued to rankle. A Hague Conference Convention of 1905 which aimed to eliminate the conflicts of law over the distribution of deceased estates was signed by only seven states and Britain played no part in its drafting.⁴⁸

4. Jurisdiction of English Courts

Behind any conflict of substantive laws lay issues about the choice of courts between countries: what, for example, was an English court to do if it suspected that foreign judges were likely to be biased in favour of their own citizens or particular litigants, or that they might be bribed? Should it take account of the fact that more of the parties or witnesses would be in one country or another, or that an order by a foreign court would be more readily carried out in its own territory than an order of an English court, or that conflict of laws principles of a foreign court were open to criticism? What was to happen if more or less the same suit had already been launched in a place where doubts about probity or capability were being aired? Comity between sovereigns had as its concomitant that there might be reasons of public policy for refusing to decide an English case by reference to a foreign law. Equally an English court might refuse to take jurisdiction over a case with a foreign element, or might refuse to recognize a foreign judgment because of its own public policy. If such issues were left to the court’s discretion, as in Anglo-American law, Savignians saw a pragmatism that undermined proper respect for the rule of law.

As a general principle, English courts would take jurisdiction over a case only when the defendant to a civil action was present in its territory or had voluntarily submitted to the jurisdiction of the court.⁴⁹There was then some hope that, if liable, defendants might be compelled to satisfy judgments—through the appropriation of their assets, or by proceeding against them personally for the contempt of court inherent in failure to abide by or satisfy a judgment.⁵⁰ The common law took a decidedly casual view of what might be a sufficient presence in England. (p.289) If the defendant was passing through the country, it was enough to serve the writ on him or her in that fleet moment. Foreign commentators were severe in their judgment against such presumption, for all its simplicity.⁵¹ Circumstances were then added, category by category, in what became Order 11 of the Rules of the Supreme Court 1883. The courts came thereby to have a discretion to order service of the writ out of the jurisdiction on a defendant who was not domiciled or ordinarily resident in England—as for instance where the action concerned a contract made in England or was intended to be governed by English law; or where the action was over title to English land or over deeds, wills, or personal obligations affecting it.⁵² In these instances it was the discretionary element that was likely to offend the advocates of a strict legalism.

5. Recognition and Enforcement of Foreign Judgments

When it came to recognition and, if need be, enforcement of a foreign court’s judgment in England, an opposite attitude prevailed, which might provoke further foreign censure. The common law had long subjected these supplementary steps to the requirement that intermediate proceedings be launched before an English court. An innate suspicion of things foreign was part of the reason, as was the view that there should be reciprocal arrangements between countries by treaty before there could be any mere registration of the foreign judgment. An English court would order recognition and enforcement only if the defendant had been domiciled or resident in the foreign country concerned or had submitted voluntarily to the proceedings there—a stricter rule than that for an English court’s own jurisdiction.⁵³ Countries, such as France, where the courts took jurisdiction on the nationality or residence of the claimant, were considered to be going too far in protecting their own.⁵⁴ The foreign judgment had to be for (p.290) a specified sum and it had to be final, rather than interlocutory; but it did not matter that it was still subject to an appeal.⁵⁵

When these various conditions were satisfied, the English court would rarely permit the substance of the successful foreign proceedings to be reopened—a shift away from earlier, less defined, practice. Only in extreme cases—of fraud, public policy, and (possibly) absence of due process—would it be possible to secure a re-examination. Mistakes of fact or law were generally not enough, even if they concerned English law.⁵⁶ In describing the run of cases that settled and illustrated these rules before 1914, North notes their geographical confines.⁵⁷