Abstract
With some simplification it may be stated that an ordinary civil action implies four essential tasks for the judge. He has to pass a decision concerning a number of, as a rule, preliminary procedural questions (forum, res judicata, lis pendens objections, or objections to the effect that the judge has an interest in the outcome of the action and should therefore be replaced) which are of decisive importance inter alia for the general question whether the merits of th case shall be considered at all. The judge must undertake a more or less active enquiry into the facts of the case; at any rate he has to determine the value of the evidence produced in the action. Moreover, the facts thus ascertained must be confronted with such legal rules as have been invoked or are otherwise applicable. This comparison results in the judgment. Thus the “sequence” of stages in an ordinary action may be described as follows:
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A.
Procedural questions
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B.
Facts of the case
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G.
Legal rules
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D.
Decision.
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References
Cf. above, pp. 69 f.
Cf. above, p. 69.
Cf. above, pp. 72 ff.
Cf. above, p. 68, note 26.
It may well be asked, e.g., how a Swedish court should proceed when confronted by a Swedish woman’s claim that a Afghan student be declared the father of her child and that the child be granted the special status—with certain advantages in comparison with the legal position of other illegitimate children—which Swedish law confers upon children whose parents were betrothed to each other before its birth, if this claim is based upon alleged sexual intercourse in San Francisco two years before the suit was instituted and if it appears that the Afghan student has returned to his home country, possibly long before the suit. Cf. 1957 N.J.A. 430.
“The application of rules of foreign law is a cosmopolitan technique, born of a certain tolerance of foreign conceptions of justice,” says Carswell in 8 J.C.L.Q. (1959), pp. 268 f.
The statutory material in the field of international procedure is dealt with above, at pp. 29 ff.
In 1957 N.J.A. 430, the City Court’s decision on the question of jurisdiction raised in the action seems to echo the old view upon the connection between jurisdiction and choice of law (“Since even if Swedish law were applicable in the present case the alleged illicit intercourse did not take place in Sweden …”). It is possible, however, that the Court only wanted to state that the applicability of Swedish law might be one out of several more or less important “connecting factors” for the purpose of deciding the question of jurisdiction.
Cf. the facts in 1956 N.J.A. 337.
On these questions, vide Dennemark, pp. 11 ff.
Cf. above, at pp. 127 ff.
Article 968 has the following wording (amended in 1947): “Un testament ne pourra être fait dans le même acte par deux ou plusieurs personnes, soit au profit d’un tiers, soit à titre de dispositions réciproque et mutuelle.” Cf. Article 1097.
Cf. Wolff, Deutschlands, p. 230, and Batiffol, p. 728.
It should be noted that the outcome would be the same if the matter was tried by French courts. We suppose that the rule locus regit actum is upheld with regard to wills in French conflict law and that French courts consider the prohibition in Article 968 of the Code civil as a formal rule. Cf. Batiffol, pp. 727 f.
According to Wolff (loc. cit.), the prohibition against joint wills in Italian law does not concern formal but essential validity, for its purpose should be to guarantee the testator’s liberty to revoke his will, and testaments, therefore, must not contain anything which deprives the testator of this liberty in any way.
Nial, pp. 60; 1934 N.J.A. 320.
Nial, pp. 62 ff.; 1911 N.J.A. 467. Cf. 1941 N.J.A. 350.
This simile is obviously not justifiable in all connections, and particularly not where the lex causae is composed of substantive rules from several legal systems.
A “secondary” classification in this case would result in a decision which, in actual fact, would not imply a loyal application of Portuguese rules. Castro’s action must be dismissed, since there was no support for it in the rules of Portuguese law on “gifts”, and Castro’s possible cause of action under rule No. 3 would not even be tried.
There were no dissident opinions on this point in the Supreme Court. Vide Bagge in Festskrift till Marks von Wurtemberg, 1931.
Cf. below, pp. 205 ff.
Some writers also use the term “classification” to denote the ranging of legal rules under such headings as “public” or “private” law, as rules belonging to “the law of succession” or as “formal” provisions.
The late Professor Hult (in Festskrift till Sundberg, 1959, p. 243) calls this case “an excellent illustration” of certain classification problems, and holds that it implies the construction of a conflict rule to the effect that “procedural quesions are governed by the lex fori.” Limitation is not part of the field of procedural technique and therefore falls outside the sphere of application of the lastmentioned rule. What must be meant by these statements is that the rule on procedural questions does not imply any restriction to the reference to American law embodied in the choice of law rule which was originally chosen for the decision of the matter as a whole.
With regard to similar German cases, Lewald states (op. cit. at pp. 78 ff.) that “la question de droit soulevée par le litige pourra, à mon avis, être formulée de la manière suivante: le débiteur peut-il, par suite de l’écoulement d’un certain délai, se soustraire à l’accomplissement de son obligation?” Since the question has to be answered in accordance with American law, no importance should be attached to the fact that, in American legal systematics, limitation rules are procedural. Otherwise, the result would be that a claim which was prescribed both under German and American law would be regarded as eternal: the lex fori has been set aside, and the limitation rules of the lex causae are disregarded. The German Reichgericht decided in this way in 1882, but not in 1934, when its decision followed the same principles as were adopted in 1930 N.J.A. 692.
On the topics discussed in what follows, cf. Mr. Justice Karlgren in SvJ.T. 1954, pp. 497 ff.
In the classical case—which may not be very frequent in actual practice— of the widow who is left penniless as a result of the caprices of conflict rules, it is possible that the choice of law rule applicable to the economic effects of matrimony could be framed in such a way that questions arising at the death of either spouse shall be decided under the law of the deceased’s home country. In most legal systems the rules on succession and the proprietary rights of surviving spouses make an organic unity. It must be examined, however, whether the slicing of the matrimonial rule which this solution would involve might produce undesirable results in other situations.
A survey of the learned discussion as well as recommendations for the solution of the problem are given by Professor Malmström in Det s. k. kvalifikationsproblemet inom internationell privaträtt, 1938. In Sweden, a strict lex fori theory based upon the writing of the Italian scholar Roberto Ago has been expounded in several works by Professor Gihl. Mr. Justice Karlgren has taken an intermediate position. The late Professor Hult has levelled criticisms, particularly against Gihl. In Scandinavian literature outside Sweden, reference should further be made to Torben Svenné Schmidt, Kvalifikationsproblemet i den innationale privatret, Copenhagen 1954, and Borum, Lovkonflikter, 4th ed.; according to the preface of the latter work, the chapter on classification is “through and through inspired” by an unpublished work by Professor Allan Philip, which was rewarded with the gold medal of the Copenhagen Faculty of Law.
Nussbaum, pp. 93 f.
The terms “remission” and “transmission” are suggested by Cheshire, op. cit., at p. 65. They hardly seem to have been generally accepted, but since they are short, convenient and clear expressions of what is meant they will be used in the following pages.
Collier v. Rivaz (1841), 2 Curt. 853.
10 Clunet (1883), p. 64.
Cf. 1919 N.J.A. 546, where a remission was accepted. Mr. Justice Beckman states, at p. 44, that the decision of the Supreme Court in pleno from 1939 means that “the application of the doctrine of renvoi as a general principle has been banished from Swedish law.”
Particularly by Ekström, op. cit., pp. 164-208, and Gihl, Principer, pp. 411-475. Vide further Karlgren, pp. 65 ff., Undén in Sv.J.T. 1922, pp. 246 ff.,Malmar in Festskrift till Marks von Würtemberg, 1931, pp. 410 ff. Statements in favour of renvoi are found in Reuterskiöld, pp. 36 ff., Ramel, op. cit., pp. 55 ff., Michaeli, op. cit., pp. 10 ff., Hassler, Internationella ad optionsförhållanden, p. 11 and p. 45.
Cheshire expressly states (op. cit. at pp. 68 f.) that the acceptance in England of a remission from Italian law would mean that English private international law “is jettisoned because it does not meet with the approval of the lawmaker in Italy”.
Cf. below, p. 237.
In Festskrift till Herlitz, 1955, Nial states (at p. 239) that it may occur that a court which consults the law of a company’s country of registration as its “personal law” in order to find an answer to certain questions concerning the company will discover that under the legal system thus referred to “the company is held to be governed by the law of a third state, in which the board of the company has its seat”. In such cases, it is stated, Swedish courts should hardly consider the law of the country of registration as the company’s personal law. This would seem to be tantamount to advice to accept transmission.
Vide Borum in Liber amicorum, pp. 16 ff.
This discussion was initiated by Professor Gihl in some papers (comprised in Gihl, Studier, pp. 251 ff.) It was carried on by Karlgren (T.f.R. 1951 and 1952), Hjerner (T.f.R. 1953) and Alf Ross (T.f.R. 1954 and 1955). A reply by Gihl is printed in Studier, pp. 259 ff.
Cf. Karlgren in T.f.R. 1951, pp. 459 f.
Vide Hult, pp. 61 ff.
These two opinions are fairly evenly represented among theorists. However, those who recommend the solution of the preliminary question under the conflict rules of lex causae tend to admit exceptions in special cases. Vide, e.g., Wolff, Private International Law, 2nd ed., 1950, pp. 206 ff., and Lewald, op. cit., p. 63. The judicial habits of various countries in this respect are not wholly clear. According to Cheshire, op. cit., p. 85, English courts apply the conflict rules of the lex fori.
Cf. the treatment of this problem by Raape, at pp. 113 ff.
Cf. above, pp. 116 f.
In fact, the “preliminary question” is not raised until after the choice of law. Cf. Nussbaum, p. 105.
Cf. Ross in T.f.R. 1954, particularly pp. 253 ff., and Hjerner, T.f.R. 1953, p. 46; also Gihl, Studier, pp. 313 f.
Cf. Melchior, p. 247.
Wolff, Private, p. 206.
Lewald, p. 65
Melchior, loc. cit.
Vide above, p. 118.
Cf. N.J.A. II 1938, pp. 217 f. If this is the incontestable meaning of the legal provision, there is obviously nothing to do about it. In our example, the general application of Dutch law would also produce satisfactory results, however, provided that the applicability of Dutch conflict rules was equally recognized and that there was among these rules a provision of the same kind as chap. 1, sec. 9, of the 1937 Act. It must be assumed, however, that in this case, the special rule of Swedish conflict law was introduced because it was found important to single out the capacity questions; this would seem to imply that the framer of the rule did not trust foreign rules to produce the desirable result.
Hult, loc. cit. The child would thus be legitimate if the marriage was found valid under the rules referred to by the 1904 Act although it was null under the matrimonial law of the lex causae, conflict rules included. Any other solution would imply an “intolerable contradiction”. But would it not be possible to state that although the spouses are married in the sense that all consequences of matrimony must be drawn with regard to their mutual relations, which could become relevant in Sweden, the marriage is nevertheless not such that any succession or legitimacy claims may be founded upon it in the home country, a state of law to be respected also in Sweden?
Cf. the example below, at p. 200, note 96.
Cf. Eek, pp. 58 f. and 165 ff.
Occasionally, certain benefits are subject to conditions of reciprocity. If a court or any other authority entrusted with the administration of the law has to determine whether the condition of reciprocity is fulfilled or not, this prejudicial question necessitates enquiries into foreign law. Chap. 15, sec. 2, of the Inheritance Code, 1734, contained a provision which originally had the following tenor: “If a foreign heir lives in a place where Swedish subjects are entitled to acquire property by succession, then such heir is entitled to the same right in Sweden.” The investigation which the application of this rule demanded in each particular case was very difficult (vide, on this topic, Flintberg, Lagfarenhetsbibliotek, vol. 2, 1797, pp. 288 ff.). It is therefore more satisfactory if an enactment binding upon the court states where the condition of reciprocity has been fulfilled (cf. § 223 a in the Danish Judicial Procedure Code on the recognition of foreign judgments). The principle of reciprocity may also be replaced by a principle of retorsion, as is the case in the new Swedish Inheritance Code, 1958. Cf. p. 67 above.
It should be observed that the so-called “third choice of law,” which we have discussed above, is made only after the rules of the applicable foreign law have become at least partly known.
Cf. Karlgren, pp. 74 f.; Kallenberg, Svensk civilprocessrätt, vol. II (1927), pp. 99 ff.; Reuterskiöld, p. 34. On older views, vide Ekström op. cit., p. 64. However, the conflict rule may occasionally be framed in such a way that the applicability of foreign law depends upon its application being claimed by either party. Vide, e.g., the legislation on deceased persons’ estate, etc. in inter-Nordic relations, 1935.
Wolff, op. cit., p. 218, gives an example from a German court where both parties contended that the applicable Belgian law was identical with the law of France. The judge made an enquiry and found that, through special legislation, Belgian law had come to differ from the French Code civil.
Cf., with regard to Danish law, Borum, pp. 66 ff. Vide also concerning Norway Alten, Tvistemålsloven, 3d ed., Oslo 1954, p. 213.
Cf. Skeie, Den norske civilprosess, I, 2nd ed., Oslo 1939, p. 435.
On the tasks of the Legal Department, vide Hellners in T.S.A. 1964, pp. 101 ff.
Occasionally, courts ask for other kinds of information from the Ministry for Foreign Affairs. In the case 1921 N.J.A. 474, a question was put about the relations between Sweden and the “Russian Soviet Republic”. In 1957 N.J.A. 195 the question was put, through the intermediary of the Ministry, to the Chinese Embassy whether it claimed immunity, etc.
Already at the introduction of the 1904 Act it was foreseen that a special international convention would need to be concluded about reciprocal intergovernmental assistance for the purpose of finding out the rules of foreign law.(Vide Actes de la troisième conférence de la Haye, 1900, pp. 60 f., 190 ff. and 246; cf. also below, p. 189, note 76.) The original bill only contained a provision to the effect that the King in Council should issue regulations on how to find foreign law. After the opinion of the Supreme Court on the bill had been taken, however, the enactment was redrafted in such a manner that it became perfectly clear that the courts would be bound to make use of the methods which the King in Council might indicate. Vide Royal Proposition No. 21, 1904, pp. 34 f.
Vide Kallenberg, op. cit. pp. 100 f.
According to the Royal Commission for the Reform of Procedural Law, which prepared the present Judicial Procedure Code, 1942, such an order does not necessarily mean that the court has made up its mind with regard to the question whether failure to produce evidence by a party shall imply that the pleas of that party will not be successful. S.O.U. 1938 No. 44, p. 380.
Cf. Royal Proposition No. 58, 1912, pp. 41 f.
Cf., however, sec. 70, second para., of the Execution Act, 1877, as amended in 1912 (below at p. 192, note 80).
Vide 1935 N.J.A. II, pp. 364 f. and 375 f.
It is stated in the protocol: “It is agreed between the Signatory States that demands for information about the law of any of the Signatory States shall be handed over from the Ministry for Foreign Affairs or of Justice in the country from which such demand is made; the question shall be put, where Danish, Finish, Icelandic or Norwegian law is concerned, to the Ministry of Justice, and where Swedish law is concerned, to the Legal Department of the Ministry for Foreign Affairs. Such information shall always be given in so far as there are explicit statutory rules; in other cases, it shall be given to the extent admitted by the circumstances.”
Cf. Borum, p. 72.
Vide Riezler, op. cit., pp. 495 f.
The statement of the Swedish delegates at the Hague conference in 1904 is still true: “Au cours des travaux législatifs qui ont été nécessaires pour préparer l’adoption par la Suède des conventions de l’an 1902, nous avons eu l’occasion de nous convaincre de plus de l’importance extrême d’une entente internationale sur les certificats de législation (certificats de coutume). C’est pourquoi nous regretterions beaucoup que cette question ne fût pas l’objet des délibérations de la prochaine conférence et qu’elle n’y trouvât pas une solution favorable.” Actes 1904, p. 333.
Kallenberg, op. cit., p. 98.
Cf. however, the City Court in 1951 N.J,A. 753. It is possible that in other cases the problem has been avoided by means of various conflict constructions or by the failure of courts to discover that foreign law was applicable.
Vide Eek in T.f.R. 1955, pp. 144 f.
Royal Proposition No. 21, 1904, pp. 34 f. and 57 f. (opinion of the Supreme Court).
Kallenberg, op. cit., p. 100.
This construction would not seem to be incompatible with the ratio of the principles underlying the res judicata rules of procedural law. Cf. Olivecrona, Domen i tvistemål, 1943, pp. 198 ff., and Rätt och dom, 1960, pp. 280 ff.
Sec. 70, second para., of the Execution Act, 1877, as amended by an enactment of 1 June 1912, had the following tenor (which was deleted under a new amendment in 1936): “If the mutual proprietary rights of spouses are governed by foreign law, and if either spouse wants to exempt certain property from seizure in the common property or the property of the other spouse on the ground that such property shall not be used for the payment of such debts under the foreign law, then such spouse has to prove forthwith such circumstances, or the property shall be subject to the rule in the first para, of this section.” It is not explicitly stated that the “circumstances” which shall be proved are the contents of foreign law. Even if that is the case, however, the rule does not imply that a party has to prove foreign law or otherwise fail. If a spouse could prove at the seizure that foreign law was applicable and exempted certain property, the interests of that spouse were protected already at this early stage.
Vide also the statement of Professor Hult at p. 47 (athough it is made only incidentally).—Kallenberg puts the question whether an action should not be dismissed in cases “which may be analogous” with those dealt with in the provision in chap. 7, sec. 4, of the 1904 Act. Contra, Michaeli, op. cit., pp. 62 f.
Riezler, op. cit., p. 497.
Cf. B. Palmgren in Tidskrift utg, av Juridiska Föreningen i Finland, 1937, pp. 34 ff.
The decision of the Court of Appeal in the case 1950 Sv.J.T., p. 958 would seem to come nearest to this solution.
At p. 497.
Some support for this solution may be found in Karlgren, p. 75 (the footnote) and Matz, Om underdomarens processledning i svensk ordinär civilprocessrätt, 1919, p. 114. The principle of non-cognizance is embraced by Borum (p. 73) and the Norwegian writer Gjelsvik (Laerebok i Millomfolkeleg Privatrett, I, 2nd ed., Oslo 1938, pp. 70 f). Hurwitz, a Danish scholar, (Tvistemaal, Copenhagen 1941, p. 130) recommends a refusal to hear the action in those cases where the lack of evidence concerns “easily available information, particularly about the rules of neighbouring countries in uncomplicated fields of law”. As an argument against a refusal to try the case it has been stated by Kallenberg and others (cf. Eek in T.f.R. 1955, pp. 140 ff.) that such a course of action would mean a denial of justice and be incompatible with the fundamental duty of the courts to protect existing rights and to answer legal questions. An action, it has been argued, cannot be concluded with a non liquet. We may also refer to Art. 4. of the French Code civil: “Le juge qui refusera de juger, sous prétexte du silence, de l’obscurité on de l’insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice.” This may be quite true from a strictly national point of view; the courts have to guarantee the public peace of the land by putting an end to such litigation as is brought before them This does not mean, however, that Swedish courts are bound to hear and decide actions which have no close connection with Sweden or that they ought to do so. There are situations where no jurisdiction is put at the disposal of the parties; it is equally justified to refuse to try the merits of an action which falls under Swedish jurisdiction but in which the decision prescribed by the law of Sweden cannot be rendered because of complications related to its connection with a foreign country.
If the lex causae has not been proved and the parties claim that the lex fori be applied and the action is of the nature where a reference to Swedish law by the parties would have been accepted by the court, the decision should be based upon Swedish law. But the freedom of parties to dispose of the applicable law would not seem to go beyond this limit (cf. Borum, p. 67; Kallenberg, op. cit., pp. 98 f.). However, the parties must always be at liberty to prove that an immediate decision (under the lex fori) is necessary for the protection of rights or interests brought in a precarious situation.
Raape, p. 87.
Cf. Nussbaum, op. cit., p. 110: “Conflict rules constitute a one-sided commitment towards an indefinite number of foreign countries and towards the most varied and unforeseeable foreign policies.”
Such absolute legislation is occasionally referred to in conflict writing as lois d’ordre public. They are sometimes subsumed under the concept ordre public international as distinguished from ordre public interne, which would embrace such rules in the lex fori as are binding (compulsory) in the sense that they cannot be set aside by the parties by means of a contract as long as the legal relations between them shall be governed by the lex fori. Gihl (Lois, p. 215) expresses the following opinion on the notion lois d’ordre public: “Cette conception commence à se faire rare, et on réserve généralement à l’ordre public la fonction d’une sorte de filtre excluant des lois étrangères nuisibles.”
Cf. note 93 below.
In external procedural law, the mechanism of ordre public is resorted to in order to avoid recognition of a foreign judgment which ought to be recognized under the normal rules on this topic.
In the interest of lucidity, the term ordre public should be reserved for this “mechanism”. It would not seem to have any purpose to give the name of “ ordre public rule“, e.g., to the provision in chap. 1, sec. 2, second para., of hte 1904 Act, where it is laid down that a foreign subject who is married is not in any case allowed to celebrate a new marriage before Swedish authorities. It is true that the ratio of the enactment is to be found in points of view similar to those which are embodied in the ordre public principle, but on the other hand, the enactment is part of codified private international law, and its application does not imply the setting aside in casu of any Swedish rule of law (the choice of law rule indicating the lex causae). Nor is there any reasonable ground for the statement that a certain choice of law rule (e.g. on the application of the lex fori or the law of the child’s domicile in all actions concerning illegitimacy instituted in Swedish courts) embodies the principle of “orde public”.—On this concept, vide further Gihl, Principer, pp. 476 ff., and Hjerner, pp. 465 ff.
In the decision 1942 N.J.A. 65, it is true that ordre public was not formally invoked, but the Supreme Court recalled the principle, that foreign law should be set aside if it is incompatible with “fundamental general principles of the legal system of this country”. When the 1904 Act on internationa questions concerning matrimony, etc. was introduced, it was probably taken for granted that exceptions from the rules of the Act could be made on the strength of the ordre public mechanism. The Minister of Justice stated when submitting the Bill: “Since this legislation has a general scope, it seems unavoidable that exceptions will have to be made, particularly in relation to non-Christian states. However, such exceptions should be admitted only when they appear strictly necessary.” (1905 N.J.A. II, No. 5, p. 9). It should be observed that the statement does not concern the public international law problem of the permissibility of exceptions in relation to the other (Christian) signatory powers. 95 Vide Eek in Sv.J.T. 1959, pp. 561 ff. The cited article has also been published in Internationalrechtliche und staatsrechtliche Abhandlungen. Festschrift für Walter Schätzel zu seinem 70. Geburtstag, Düsseldorff, 1960, pp. 117 ff., and in XVI Diritto internazionale, 1962, pp. 3 ff.
An extensive discussion has been carried on in the review T.f.R. about ordre public and the so-called preliminary question (vide above, p. 178, note 38). Gihl, who initiated the debate, put the question why a Swedish court is not unlikely to grant a child of a polygamous marriage a right of succession, although the matrimony as such is not recognized. His answer was that the foreign rule invoked to solve the preliminary problem (a rule to the effect that a man may have four wives) was not “applied” and that there was therefore no ground to reject it. At the end of the ensuing discussion, however, Gihl arrived at a less formal explanation which implied, inter alia, that certain legal effects of a polygamous marriage are accepted, e.g. the right of succession of children born of such a union, whereas other consequences are not drawn by the Swedish courts. The problem is thus one of policy; undoubtedly, there may be reasons for rejecting an “innocent” rule if the application of that very rule would involve a recognition of an undesirable legal effect of an objectionable rule.In his final reply to Gihl (T.f.R. 1955, pp. 496 ff.), Professor Ross once more emphasized his view that in the example dealing with the right of succession there are not two rules, one belonging to the law of succession and the other to matrimonial law, but that “logically there are only fragments of one single rule which connects certain facts (those which are said to create marriage) and certain legal effects (one of them being a status modification, another the right of succession)”. It would be of great interest to have this idea tried systematically in the conflict of laws; it would probably imply a new aspect upon the questions of specialization of choice of law rules, renvoi and “prejudicial application of foreign law”. If we have to distribute a deceased person’s estate according to Swedish law and, among the persons claiming to have a right of succession, there are the deceased’s children born in various foreign polygamous unions, the legal rule connecting certain facts with certain legal effects obviously consists of a Swedish fragment from the law of inheritance and a wholly undetermined number of fragments from matrimonial law, embracing all conditions for the creation of a “valid marriage” of the whole world.
Niederer, p. 294. It may well be asked whether in this example it does not also follow from Swiss private international law that the capacity of the executor is governed by the law of state. A. It is possible that if the foregin rule on the executor’s capacity did not leave him any other choice than to obey the directions of confiscating authorities, that foreign capacity rule could be rejected, instead of the Swiss provision concerning a competent executor’s right of administration.
Niederer, p. 295.
It is stated by Professor Hjerner (at pp. 254 f.) that American courts have refused to deliver deceased person’s estates to countries where the estate would be wholly or partially lost to the heirs because of confiscation, high estate duties or unfavourable official rates of exchange. On “Soviet Heirs in American Courts,” see further Harold J. Berman in 62 Columbia Law Review (1962), pp. 257 ff.
Cf. Karlgren, pp. 47 f.; Lewald, pp. 125 ff., Raape, pp. 90 ff.
Cf. the outcome of the case 1962 N.J.A. 123, mentioned above p. 72. It is to be noticed that in that case the courts decided not to admit the action; it was not rejected. This could be an indimcation that at a time when not only the mother’s husband but also the mother and the child had become Swedish citizens an action could be tried as purely Swedish and so not calling for any choice of law considerations. Cf., however, 1963 N.J.A. 489.
Notice the decision 1942 N.J.A. 65, mentioned above. In 1934 N.J.A. 491, the question turned upon the construction of the expression “moral principles” in sec. 7 of the Act on foreign arbitration agreements and arbitral awards, 1929, In 1930 N.J.A. 692 it may possible be taken from an expression used by the Supreme Court that in the view of the Supreme Court there was no reason to make use of the ordre public mechanism in a case where a modification of the amount of alimony agreed upon by two divorced spouses had been claimed by one of them and where the lex causae had no rules about such modifications. If the mechanism of ordre public had been put into function in this case, it must be assumed that it would have been directed against that rule of the lex causae which implied that contracts on alimony remain valid even though the facts upon which they were once founded have changed radically. Certain writers find an application of ordre public principles in some of those rather numerous cases where Swedish courts have dealt with foreign compulsory administration, confiscation, etc. This construction is occasionally possible, but it would not seem permissible to interpret the whole series of decisions concerning foreign “public law” rules in this manner. Cf. below, pp. 205 ff.
According to Professor Borum (at pp. 74 ff.), ordre public is invoked by the Danish courts only “in obviously extreme cases”. The Norwegian writer Hambro (at p. 354) points out that “as might be expected”, there are few Norwegian decisions dealing with ordre public. In the Anglo-Saxon countries, the warning pronounced by Burrough, J., against public policy as an “unruly horse” in an old English decision (Richardson v. Mellish, (1924), 2 Ding. 229, 252; 130 Eng. Rep. 294;) seems to have exercised a considerable influence: “Once you get a stride of it, you never know where it will carry you.” Vide Nussbaum, op. cit., pp. 112 ff. It is objected by another writer, Lederman, in Law and Contemporary Problems, 1956, p. 596: “It is not the ultimate or extraordinary public policy here that is an unruly horse; rather, the unruly horse is the uncertainty of substantive results implicit in our indicative rules, because they require us prima facie to adopt the laws of a foreign country at the material time, whatever their effect may be. The public policy reservation on the operation of these rules, then, is not the unruly horse, but the checkrein on the beast.”
Batiffol, p. 419.
Cf. Paul Lagarde, Recherches sur Vordre public en droit international privé, Paris 1959, pp. 238 f.: “La disposition étrangère n’est pas écartée parce quelle est contraire à un principe fondamental du droit du for. Elle est écartée parce qu’intégrée dans le droit du for, eller ne peut se combiner de façon cohérente avec les diverses dispositions de celui-ci avec lesquelles elle se trouve en relation. Si l’ordre public n’intervenait pas, la solution du litige serait insensée, puisque la disposition étrangère et les dispositions du for n’ont de sens que par leur combinaison, et que cette combinaison est par hypothèse impossible. L’ordre public intervient justement pour redonner sens et vie à l’ensemble, en procédant aux ajustements nécessaires.”
Cf. Niederer, p. 292.
Vide Lagarde, op. cit., pp. 201 ff.
jn France the courts used to hold that since German rules on the proving of paternity in illegitimate filiation cases were repugnant to French ordre public, the German rules should be completely rejected and replaced by French law e.g. in a case concerning paternity and alimony. This meant, in the issue, that even where paternity had been proved under those French provisions which replaced the law of German the alimony rules of German law were set aside even though they were applicable in principle and not incompatible with French policy. Nowadays (after the Fayeulle decision in 1943), however, French law has adopted the standpoint advocated in the text above. Vide Lagarde, op. cit., pp. 212.
Nial, p. 117.
Gihl, Lois, pp. 247 f.
In the decision of the Stockholm City Court, 30 June 1958, in the action between the State of Bulgaria and the merchant Takvorian (referred to above, p. 88, note 47), a claim that the court should order that an amount of money belonging to Takvorian and deposited with the office of the High Governor of Stockholm should be transferred to the Swedish-Bulgarian clearing account, where it should be put to the credit of the Bulgarian National Bank, was admitted to trial. In the decision, there is no discussion of the question of the applicable law, but the action of the Bulgarian State was dismssed; the court seems to have arrived at this result by application of Swedish law (thus it is stated that the Bulgarian State “was not entitled to represent Takvorian”). Bulgarian law (private or public) therefore was not taken into consideration. This seems quite reasonable, however, since the disputed money was located in Sweden and had been paid by a Swedish corporate body which owed it to Takvorian, who in his turn was a French citizen.
In Swedish legal writing these questions are treated by Karlgren, pp. 51 ff., Nial, pp. 117 ff., Hjerner in Främmande valutalag and in Scandinavian Studies in Law, 1958, pp. 175 ff., and by Gihl in Lois, and Studier, pp. 332 ff. and 357 ff. Vide, for further references, the bibliographies of these works.
Notice the opinion of Ekberg, J., in the “gold clause case,” 1937 N.J.A. 1, where it is assumed that the Supreme Court of the U.S.A. would not have considered the Joint Resolution of Congress declaring gold clauses invalid as being an unconstitutional statute if the Court had been given an opportunity to try that question.
Vide Gihl, Studier, pp. 372 f., on the American Joint Resolution.
Cf. above, pp. 63 ff.
Niederer, at p. 89. Cf. Nial, pp. 118 ff.
Cf. Gihl, Studier, pp. 364 ff., Nial, pp. 130 ff. Unconditional approval would seem due to Hjerner’s statement (Scandinavian Studies in Law, 1958, p. 205) that the mechanism of ordre public may very well be resorted to with regard to so-called incidental questions also.
Cf. 1941 N.J.A. 424, IV.
Vide on this topic Schmidt in Sv.J.T. 1944, pp. 609 ff. Cf. Wengler’s Vorbehaltsklausel der Humanität, which is particularly intended to solve certain questions concerning what legal system shall be considered as the applicable “law”, Festschrift Hans Lewald, pp. 629 ff.
Vide Niederer, p. 363.
The Bremen Court of Appeal (Oberlandesgericht) which, in 1959, dismissed the actions of Dutch companies which claimed the seizure of certain consignments of tobacco brought to Germany from Indonesia, stated.: “It is also doubtful whether it is suitable to practically enter into an economic blockade by non-recognition in the field of civil law of foreign expropjriation acts. Such an action, moreover, cannot be carried through flawlessly and will result in uneasiness in the international economic life. A further development of international law as far as a greater guarantee for foreign private property is concerned for practical purposes should rather be promoted by further extending international organization or by international treaties”; quoted from The Bremen Tobacco Case, publ. by the Indonesian Embassy at Bonn. As for the Dutch view of Indonesian expropjriation measures, vide Ne.T.I.R. 1958, pp. 227 ff. Further on the Bremen decision in 54 A.J.I.L. (1960), pp. 305 ff. (Domke) and pp. 801 ff. (Baade).
On the decisions at Aden and Venice in 1953 in actions between the Anglo-Iranian Oil Company and buyers of oil from the Iranian State, vide Gihl in Liber amicorum, pp. 56 ff. Cf. also Hambro, pp. 292 ff.
Wolff, op. cit., pp. 214 f. If, on the other hand, the lex causae would be incompatible with a treaty between the lex causae country and another state, the question of loyal application of the lex causae is raised. The judge of the forum country has to examine whether this incompatibility would cause the courts of the lex causae state not to apply the legal provision. Cf. also Batiffol, pp. 392 f.
See Helmers Kringgående av skattelag, Stockholm 1956, pp. 23 ff. Vide also Schmitthoff in Law and Contemporary Problems, 1956, p. 441.
Cf. the negative attitude of Niederer, p. 336; Hambro, p. 304; Nussbaum, p. 130. In France fraude à la loi française is regularly fought by the courts; vide Batiffol, pp. 429 ff.
Cf. the example from Lewald above, at p. 126, note 158.
Wolff, op. cit., pp. 143 f.
Nussbaum, p. 130. Vide also Niederer, p. 332.
Wolfff, op. cit., p. 140, note 2. Vide also Mason in J.B.L., 1961, pp. 148 ff. on “Bahamas Companies” and Philips, Studier i den internationale selskapsrets teori, Copenhagen 1961, pp. 153 ff.
On these problems, vide McDougal et al. in 54 A.J.I.L., (1960), pp. 25 ff.
In the 18th century, it is told, Swedes crossed the border to Norway to be married there; the sole purpose was to avoid Swedish rules on incapacity to marry. In Sweden, this “fraudulent purpose” was not considered to deprive the marriage of its validity. Vide Joh. Hellner, “Om giltigheten av utomlands ingångna äktenskap”, in Förhandlingar å det åttonde nordiska juristmötet, 1896, pp. 37 f. and appendix II, pp. 17 f.
1954 R.Å. No. 33. See below p. 239, note 14.
Klausenburg in Hungary (vide Fuchs, Die sogenannten siebenbürgischen Ehen, 1889); Fiume in the period 1920–1924; Riga in the nineteen-twenties and-thirties (vide Sv.J.T. 1934, pp. 610 f.); Reno, Nevada, U.S.A.; certain Mexican States, where so-called mail order divorces can be granted, etc.
Vide Wolff, op. cit., p. 141, and Raape, p. 92.
Cf. Hambro, p. 313; Hjejle, Frivillig Voldgift, Copenhagen 1937, pp. 187 ff.; Eek in Sv.J.T. 1959, p. 346.
On this topic, vide Nial, passim and particularly, p. 19; Borum, passim and particularly p. 146; Karlgren, passim and particularly p. 95.
Cf. Schmitthoff, p. 115 f., and below, pp. 280 ff.
Wolff, Deutschlands, p. 60. Cf. Raape, pp. 100 ff.
Cf. Borum, p. 69; Nussbaum, pp. 257 f.; Raape, p. 120. Contra Pillet, Traité pratique de droit international privé, vol. I, Paris 1923, pp. 152 f.
Raape, p. 101.
Vide e.g. O. Hood Phillips, A First Book of English Law, second ed., London 1953, pp. 91 ff.
Lewald, pp. 140 ff.
Lewald, pp. 145 f.
Westring, Den nya giftermålsbalken, 1920, p. 383; Eek in Sv.J.T. 1957, p. 535. Cf. however, 1928 Sv.J.T. 1; 1958 Sv.J.T., p. 1 and Undén, pp. 86 f.
1949 N.J.A. 82. Cf Eek in Scandinavian Studies in Law, p. 48 (as compared with pp. 34 f.).
In this connection, we need not discuss the principal argument put forward in the ratio decidendi of the majority of the Supreme Court, viz. that it must at any rate be held “incompatible with fundamental Swedish rules on parental relations to let the question whether a child is legitimate or not … depend upon the issue of a filiation suit based upon principles completely different from those embodied in chap. 2 of the Parents and Children Code or enactments corresponding to them.” Cf. below, p. 229 f.
It is curious that the argument of the Supreme Court referred to the effect in Norway of any Swedish decision in a filiation suit. For the purpose of the individual case, it should be decisive whether the future judgment of the case at bar was likely to have such effect in Norway or not.
Cf. the jurisdiction rule in chap. 3, sec. 1 (in fine) of the 1904 Act where it is laid down that Swedish courts shall not try foreign matrimonial causes if the lex causae reserves the trial of such actions for its own authorities, unless it follows from the rules of the lex causae that no valid marriage has been contracted between the parties.
It appears from Professor Nial’s course of reasoning (e.g. at pp. 22 f.) that this is also his opinion. However, Nial seems to hold (at p. 55) that such rules as are found in sec. 37 of the Swedish Contracts Act, 1915, or sec. 8 of the Promissory Notes Act, 1936—both contain rules against the enforcement of inequitable clauses in contracts or promissory notes—could be applied “to protect the buyer, where the sale is otherwise governed by foreign law”; the statement refers to conditional sales to which the Swedish Conditional Sales Act is not applicable. In our view, those rules of private law which are usually called “compulsory” or impossible to contract out from, should not be applied “to protect the buyer”, where it follows from Swedish choice of law rules that a foreign legal system is the lex causae. It is only where the rules of the applicable law are such as to be repugnant to Swedish ordre public that they should be set aside and Swedish rules be substituted for them in the individual case. This is possibly what Nial has intended to say. Cf. below, på 228, note 160.
Above, at pp. 60 ff.
Cf. above, p. 68.
Cf. Nial, pp. 144; also 1941 N.J.A. 424 and 1936 N.J.A. 586.
Cf. Hjerner, pp. 597 f.; Jan Hellner, Om obehörig vinst särskilt utanför kontraktsförhållanden, Uppsala 1950, pp. 397 f.
Pillet, op. cit., pp. 109 ff.
Hult, pp. 10 ff.
I.C.J. Reports, p. 55.—Cf. R.Å. 1954, note S. 127, and 1956, note S. 30; also 1955 N.J.A. 377.
Vide further Eek in Sv.J.T. 1959, p. 561 ff., same author in Internationalrechtliche und Staatrechtliche Abhandlungen (Festschrift Schätzel), 1960, pp. 117 ff. and in Diritto Internazionale 1962, pp. 3 ff. Also Lipstein in 8 I.C.L.Q. (1959), pp. 506 ff., Batiffol and Francescakis in Revue critique de droit international privé 1959, pp. 259 ff., and Kollewijn in Ne.T.I.R. 1959, pp. 311 ff.
Cf above, p. 64.
It should be observed, however, that according to Gamillscheg, Internationales Arbeitsrecht, 1959, p. 176, it is held by the majority of conflict writers that the employer’s national law shall be applied to “domestic employees”.
When determining the applicable law by the “individualizing” method in actions concerning conditional sales, not only such facts as the nationality or domicile of the parties, but also the location of the goods at the time of the contract or the place where the goods are situated at the institution of the action assume considerable importance. However, Nial (ap p. 55) seems to consider the Swedish Conditional Sales Act, 1915, as absolute; thus he states that its rules for the protection of buyers “are likely to be applied by Swedish courts even if the sale is governed by a foreign lex causae, at last if the goods are situated in Sweden”. The precise time at which the goods should be located within the Kingdom is not indicated, but Nial seems to refer to the time when the action is brought. Karlgren (p. 103, note 8) states that “it may follow from considerations of ordre public that the compulsory rules of Swedish law on conditional sales, even those which deal with the obligations of the parties, are always observed by Swedish courts, if the goods are situated whithin the Kingdom”. The relevant time is not set out by this author, either. A principle of such generality as that formulated by Karlgren cannot be founded upon ordre public, however, at least not if that term is taken in the sense adopted in general forensic language and also in this book (above, at p. 197). It is rather a question of giving the protection rules of the Conditional Sales Act an absolute character.—As for the Swedish “social legislation for the welfare of workmen”, Nial (at pp. 64 f.) seems to consider these rules as absolute, i.e. applicable also where the lex causae is foreign law, but finds no obstacle against applying similar foreign legislation in Sweden. In that case, how is the “conflict” between e.g. Italian and Swedish rules on compensation in money for vacations to be solved when the Italian rules call for application as being part of the lex causae and the Swedish provisions because the court sits in Sweden?
Vide the decision 1956 N.J.A. 337, in particular the opinion of Karlgren J.: also 1946 N.J.A. 310, 1952 N.J.A. note G 749 and 1957 Sv.J.T., p. 54. The two latter cases deal specifically with refugees, however.
Cf. above, pp. 218 ff. Karlgren finds “ordre public considerations” in this case (in Sv.J.T. 1961, pp. 649 f.).
Cf. 1956 N.J.A. 337.
Vide 1953 N.J.A. 262 and 1951 N.J.A. 177; cf. 1954 N.J.A. 13 (the “Monica case”). Cf. also Malmström, Föräldrarätt, 1956, pp. 129 ff.
Against certain Swedish measures, Finnish parties seem to have invoked the Inter-Nordic convention on inter alia guardianship. Vide Backström in J.F.F.T. 1949, pp. 291 ff.
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© 1965 Martinus Nijhoff, The Hague, Netherlands
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Eek, H. (1965). How the Material is Used. In: The Swedish Conflict of Laws. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9552-2_3
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