Reviews
| Date | 01 November 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb01498.x |
| Published date | 01 November 1978 |
REVIEWS
GENERAL
PROBLEMS
OF
PRIVATE
INTERNATIONAL
LAW.
By
0.
KAHN-
THIS
book contains the text of Professor Kahn-Freund’s General Course on
Private International Law which he gave at the Hague Academy
of
Inter-
national Law in
1974.
The
course is superlative.
The
book is stimulating,
informative, and enjoyable. It provides innumerable insights into the conflict
of
laws.
It
is
so
brimming with content and ideas that this revieW cannot
possibly do more than give
a
much briefer indication of the
book‘s
structure
and content than would be justified by its importance.
As its title makes clear, the course is on problems, not pMciplas, and
on problems which
are
general in nature rather than peculiar to particular
systems. Drawing
on
his immense learning and knowledge of the comparative
conflict of labs, Professor Kahn-Freund identifies many such problems, places
them, in the contexts in which they have arisen in different systems, and
analyses their possible solution
in
the light of the legislation, case law, and
academic doctrine
of
all Western
Euv,
the United States of America,
Canada, Australia and
a
number
of
other countries besides.
The cou~lge is divided into three parts. The first part, on sources, discusses
the sources available for the solution
of
conflicts problems.
The
second
part,
on contexts, considers the geographical and political, social and legal contexts
im
which conflicts problems arise and the effect which those contexts may have
on
their solution. The third part, on methock, examines the choice of law
process
itself. The course is carefully constructed, and its three parts form
a
unified whole. It is kt read from beginning to end.
In the part on sources, Professor Kahn-Freund first analyses the different
ways in which it might be said that international law
is
a
source of authority
or of reasoning in conflicts cases.
He
argues that, save in cases covered by
international conventions, it is
of
very limited value as
a
source
of
positive
conflicts rules.
He
is
also
sceptical about the value
of
international lab as
a
source
of
restrictive conflicts rules justifying, for instance, the refusal
of
full recognition to certain kinds
of
excessive judicial or administrative activity
such
as
the excessive application
of
anti-trust legislation, the excessive
assumption of judicial jurisdiction, and discriminatory expropriation. In
his view, these matters are better regulated by the application of principles
derived from private rather than public international law,
or,
better still, by
international conventions.
In his next chapter, Professor Kahn-Freund compares the different sources
of conflicts rules in countries consisting of several law units. In some “com-
posite” systems, conflicts rules derive from the composite unit, whereas in
others they derive from its component parts. The question whether, in
a
federal state, the federal unit can legislate
for
the conflicts rules of the
componemt parts is an important constitutional question. There is a particularly
useful discussion (pp.
65-73)
of
the interrelationship of federal and state courts
in the United States, with an analysis of the impact
of
the Due Process Clause
and the Full Faith and Credit Clause of the United States Constitution upon
the substantive! conflicts rules applied by state courts.
The remaining three chapters of this part deal respectively with legislation,
case law and academic doctrine as sources
of
private international law. The
chapter on legislation is
of
exceptional interest. After comparing the different
kinds
of
legislation which have been enacted to regulate conflicts rules in
different systems,
Professor
Kahn-Freund turns to consider the possibility
that a constitution might itself be a source
of
positive conflicts norms.
He
gives three examples. The first is the provision of the Irish Constitution
prohibiting the enactment of a law
of
divorce, ’which at one time was
153
FREUND.
[Leyden:
Sijthoff.
1976.
336
pp.
Df1.4840.1
754
THE
MODERN
LAW
REVIEW
[Vol.
41
interpreted as requiring that
a
foreign divorce, valid by all principles of the
conflict of laws, should
be
refused recognition for the purpose
of
giving the
divorced person capacity to remarry in the Republic. The second is the
provision
of
the Constitution
of
the German Federal Republic guaranteeing
the protection of marriage and the family. The German Constitutional Court
has
interpreted this
as
entitling
a
person who has been divorced in
Germany
to
remarry there,
wen
if lacking capacity to do
so
under the law which
would otherwise
be.
applicable, because that law refuses to recognise the
divorce. This
case
is contrasted with the opposite decision of the Divisional
Court
in
England in
R.
v.
Brenhvood Superintendent Registrar
of
Marriages,
Ex
p.
Arias
[1968]
2
Q.B.
956,
which had to be reversed by section 7 of the
Recognition
of
Divorces and Legal Separations Act
1971.
Professor Kahn-
Freund’s third example
is
no
less
interesting than the second, It
is
another
provision
of
the Constitution
of
the German Federal Republic, giving equal
rights to men and women. It is
a
controvemial question in Germany whether
the existing rules
of
German private international lab, which submit various
issues of family law to the
law
of
the husband’s nationality at a given time,
are compatible with this provision. Professor Kahn-Freund, agreeing with
conservative prevailing opinion, would answer the quation in the affirmative.
In this respect the English conflict of labs seems to
be
somewhat ahead of
German developments. Now that we allow a wife to have
a
separate domicile
from her husband, we would probably submit those questions of family law
which used to be governed by the law
of
the husband’s domicile to the law
of
each spouse’s independent domicile. After this, there
is
a discussion of the
different types of provisions
on
the conflict of
laws
to
be
found in different
kinds
of
legislation on private law. The distinction, well known to Continental
lawyers, between
“
unilateral
”
norms,
governing only nationals of the state
concerned, and
“
multilateral
”
norms, creating general confficts rules, is
explained and illustrated.
The
important but not easily rwgnisable dis-
tinction between unilateral choice of law rules and
“
self-limiting” clauses
in statutes is also analysed. Finally, Professor Kahn-Freund turns to (or,
rather, rounds on) the
*‘
interest analysis
”
approach
to
legislation, tin
vogue in the United States.
He
has little sympathy for this method of solving
conflicts. At one point (p.
99)
he compares the conflict of laws in the United
States today with that in
Europe
in the Middle Ages!
The chapter on case law as
a
source of conflicts rules is hardly
less
interest-
ing than the chapter on legislation. It contains an extremely informative
discussion
of
the extent to which foreign law is treated
as
a
question
of
fact
in some courts and
as
a
quwtion of law in others, and
of
how and when
in different Bystems a judge must decide
ex
oficio
whether foreign law is
applicable. These questions
are
of
considerable practical importance in all
systems, including our own. (The reader who has wondered why even in an
undefended divorce case in this country the judge must raise the issue
d
the law governing the validity
of
the marriage
if
the facts give rise to doubt,
in contradiction
of
our normal principle that in the absence
of
proof to the
contrary foreign law is presumed to be the same as English law, will find the
explanation at p.
115.)
There
is
a controversial excursus on the question
whether a judge faced with
two
potentially applicable laws, both
of
which
coincide in content, is entitled to refuse
to
choose between them on the
ground that there is a “false conflict.” Professor Kahn-Freud argues that
this method
of
“
avoiding
”
a conflict is improper, particularly in
a
system
(wch as our
own)
where foreign lab is
a
question of fact, and an appeal
to
a
higher
court
lies on
a
point
of
law only.He contends that a judge adopting
this approach in
a
case
where one
of
the potentially applicable laws
is
that of
the forum may wmngly be depriving a ’party of his right (to appeal
on
the
ground that the judge misinterpreted his own law, and that it was in fact
different from the other potentially applicable law. The argument is not
entirely convincing, since if
a
party can show that the judge misinterpreted
his own law, it must surely follow that he erred in law in refusing to choose
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