Rules and Standards in Private International Law

RULES AND STANDARDS IN PRIVATE INTERNATIONAL LAW*

When a treatise becomes a classic, both revision and review present special challenges. The rigour of the task increases when the relevant subject matter spans topics as disparate as domicile, forum non conveniens, marriage, arbitration, realty, estates, torts, insolvency, insurance, foreign currency and mental incapacity. Sir Lawrence Collins and his colleagues have succeeded in giving us an even better edition of what older generations called “Dicey & Morris”.¹ The work remains the gold standard in texts on conflict of laws.

The discipline called “private international law” in Continental scholarship, and “conflict of laws” within traditions derived from English common law, includes a cluster of questions generally related to three interrelated categories: jurisdiction, judgments and applicable law. The editors of Dicey, Morris & Collins arrange these subjects into seven major sections: preliminary matters (for example renvoi and domicile); procedure (including proof of foreign law); jurisdiction and judgments; family law; property; corporations; and obligations (contracts, torts and restitution). The book begins with a superb table of cases and ends with a fine index. The two initial chapters, which address the nature of the subject and the characterization process, could well constitute stand-alone essays.

Inherited from previous editions, the emphasis on “black letter rules” gives the current edition a familiar configuration. Two hundred and forty-two hydra-headed statements attempt to capture the content of English law as applied in civil litigation with a foreign element. Matters addressed by these rules include disputes over foreign property, contracts performed outside England, and torts committed abroad. Extensive comments and notes describe specific wrinkles on the underlying principles, furnish illustrative fact patterns, and give vital references to cases and scholarly works.

This rules-based approach inherent in any such précis has both costs and benefits. Apparently, even Dicey himself may have had second thoughts on this matter, having confided to a friend a few years after the first edition that his “faith in digests had declined.”²

On the positive side, simplified rules can serve as good starting points for analysis, supplying intellectual hooks on which to hang complicated concepts. In its very nature, law relies on the type of generalities that enhance equal treatment for those situated in roughly similar situations. To impart learning would be an almost impossible task without some recourse to general statements, particularly in a field as vast as private international law. Efforts at a “rule-free” approach have usually met with the same poor results as the misguided efforts to teach children mathematics without asking them to learn multiplication tables. Little practical help can be found in abstract statements urging that “the law with the greater interest shall apply.”³ Nor is one ever quite sure what to make of perspectives that tout “choice-influencing considerations”⁴ or the “inherent morality that should be part of the relationship between the parties”.⁵ As Justice Holmes observed a century ago, “General propositions do not decide concrete cases.”⁶

Rules have a down side, however. They can prove either under-inclusive or over-inclusive (and sometimes both), saying too little or too much. Language relies on words placed in sequence, while reality builds on events that often defy such logical order. The occasional chaos of truth inheres no less in private international law than elsewhere. The thoughtful reader will take the rules as signposts rather than cook-book recipes, knowing that the difficulty lies not in rules per se, but in their potential for either confusion or mischief. Moreover, the commentary in Dicey, Morris & Collins helps to dispel any misconception that questions can be solved by the rules alone. The editors maneuver skilfully around the woodenness of rules to provide appropriate shades of grey in supporting illustrations.