B. Dolinger

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CHAPTER II
THE CLASSICAL PRINCIPLES

OF PRIVATE INTERNATIONAL LAW
"There are therefore different orders of laws and the sublim-

ity of human reason consists in perfectly knowing to which of
these orders the things that are to be determined ought to have
a principal relation, and not to throw into confusion those prin-
ciples which should govern mankind."
(Charles de Secondat, Baron de Montesquieu, The
Spirit of Laws, XXVI, 1.)
The classical structure of private international law has been com-

posed of rules that connect a transnational legal relationship to a
legal system in accordance with an established set of attachments,
known as the connecting factors, which go into action through the
corresponding connecting rules whenever a legal relationship has to
be judged upon and a choice of law is required between one of two
legal systems to which it is related.
Theories have been developed throughout the centuries with the
purpose of setting up the connections that correspond to the various
classes of legal relationships in the different fields of law.
Since the connecting rules could lead to the application of a law
that was not compatible with the forum's basic philosophy, or could
contain an indication that would go beyond what was initially
intended as far as giving up on the application of the forum's law,
the system evolved to a point where it worked with a "check and
balance" methodology that functioned in two steps:
(1) Whenever a legal situation occurred to which one or another
system of law could apply, each containing different, conflicting
rules of substantive law, the solution would be to apply the
forum's conflict rules, i.e, the superimposed rules of private
international law of the forum, which would indicate the appli-
cable system of law to the particular situation.
(2) However, in some cases problems would arise, either because
the solution to be reached through the conflicting rule would not
be acceptable to the forum, or because the forum's conflict rule
Resolving Conflicts in Contracts and Torts
would conflict with the conflict rule of the other jurisdiction

with which the legal situation was related, or a conflict would
occur between the systems of both jurisdictions regarding the
exact characterization of the legal relationship. In these situa-
tions the conflicting rules could not be enforced and a different
solution had to be found for the choice of the applicable law.
The circumstances that would thus hinder the application of the

connecting rules or modify their functioning called for solutions that
resulted in certain principles of private international law, which I
classify as Principles of Negative Nature. These principles were
embodied in what became known, especially in the civil law coun-
tries, as the "General Part" of private international law.
In many respects this is still the situation that prevails today,
although a fundamental change has been occurring in the method of
choice of law, due to certain new principles that have been intro-
duced and which have considerably affected and will affect even more
in the future, this "check and balance" system, as we shall see later.
These new principles of private international law are not found
only in the fields of contracts and torts, but they are present as well
in the field of family law and in other fields, in a coherent evolution
of private international law methodology.
Family law has a special significance because most of the classi-
cal principles were first detected in cases related to this field of law,
whereas the very first "check and balance" principle occurred in a
matter of succession.
We shall also examine other principles of private international law
that I classify as Principles of Positive Nature, that do not block the
functioning of the connecting rules, but rather serve as grounds for
or guides to their choice and include rules that have been "pro-
moted" to the rank of principles.
Following that we shall look into some principles which, for lack
of a better denomination, I classify as Guiding Principles or Policy
Principles, as their object is more generic and have a wider goal, two
of them directed to the judge and one to the legislator.
Finally, in Chapter III, we shall discuss a principle that ori-
ginally had only a negative effect, the most important of all classical
negative principles - public policy - and that, without losing its
negative exception aspect, has concomitantly become a principle of
positive nature.
J. Dolinger
Principlesof Negative Nature
The classical principles have a negative function as they control

and restrict the functioning of the connecting rules, by blocking their
application or changing the result that the rules would normally pro-
duce. These controls have also been known as "escape devices" 108,
"escape mechanisms" 109 or "disguised exception clauses" 1l0. In the
early years of the Hague Academy courses, a President of the
Supreme Court of Germany called some of those principles "egoistic
methods" ", explaining that by egoism he meant the element that
keeps the characteristics of each nation, establishing limits to the
substitution of the national law by the legal systems of other sov-
ereignties.
We can see it as a permanent struggle between the rules, that are
universalistically minded, that admit and encourage the application
of foreign legal provisions when they are the most appropriate and,
on the other side, the principles that tame the enthusiasm for interna-
tional legal tolerance and establish controls and restrictions indicat-
ing the return to the law of the forum. The correct equilibrium of
these two components of the classical choice of law method stands
as the major contribution of private international law to the safety
and stability of transnational relations for the last two hundred
years.
These principles were all discovered or, rather, created by courts,
when, dealing with situations of conflict between the substantive
laws of different jurisdictions, they suddenly realized that a new
problem arose: a conflict within the conflict, or better said, a con-
flict above the conflict.
108. S. C. Symeonides, "Exception Clauses in Conflicts Law - United

States", in K. Iatridou, op. cit., p. 80, writes:
"The only time American conflicts law came close to having a rule
system was during the dominance of the first Restatement of conflicts.
Unfortunately, the rules of the first Restatement were too rigid and mechan-
ical and left no room for evolution. This rigidity made necessary the utiliza-
tion of the few available escape devices: characterization, ordre public, the
substance versus procedure dichotomy, and, occasionally, renvoi."
109. Ibid., at 85.
110. N. Spiegel, "Les clauses d'exception en mati~re de conflits de lois et de
conflits de juridictions - France", in K. Iatridou, op. cit., p. 211.
11l. W. Simons, "La conception du droit international privd d'apr;s la doc-
trine et la pratique en Allemagne", Recuei des cours, Vol. 15 (1926), pp. 504 et
seq. He refers to renvoi, ordre public, reciprocity and retaliation.
Renvoi
First in an English court, then in a French court, renvoi was born

when judges realized that not only substantive legal provisions, but
also conflict rules of two States could conflict. In other words,
besides the difference of treatment of a certain legal matter between
the law of State X and of State Y, both States may formulate a dif-
ferent solution for the conflict; and so courts in one of these States,
when following its rule of conflict that orders the application of the
law of the other State, may find out that the other State commands
the opposite, that is, that the applicable law is the forum State's law.
Collier v. Rivaz 112 was judged in 1841, the first case where this
problem occurred. The facts turned around a British subject, who
lived in Belgium at the time of his death. He had executed codicils,
formally valid according to English law but not made in the form
required by Belgian domestic law. So here was the conflict between
English and Belgian law in the field of forms to be employed in the
drafting of codicils.
The English court would have to apply Belgian law because,
according to the English concept of domicile, the testator had died
domiciled in that country. However, according to Belgian law the
testator had not acquired a domicile in that country, as he had failed
to obtain the necessary governmental authorization.
So here we had a conflict between rules regarding domicile in the
international sense: was the testator domiciled in England or in Bel-
gium ? The English court verified that a Belgian court would have
decided about the codicils' formal validity according to English law,
so the British judge, Sir Herbert Jenner, did the same, saying that "the
Court sitting here ... decides as it would if sitting in Belgium" 113
Collier v. Rivaz did not really present a conflict between conflict
rules, but a conflict of characterization regarding the concept of
domicile, but this conflict of characterization caused that each juris-
diction would normally choose the other's law, that is, Belgium
would apply English law and England would apply Belgian law, so
the English court decided that since it was ordered by its conflict
provision to apply Belgian law, it should accept and apply Belgian
112. (1841) 2 Curt 855. See Cheshire and North's Private InternationalLaw,
12th ed., by P. M. North and J. J. Fawcett, London, Butterworths, 1992, p. 67.
113. M. R. Chesterman, Cracknell's Law Students' Companion, No. II, Con-
flict of Laws, London, Butterworths, 1969, p. 21.
J. Dolinger
law in its entirety and follow the solution that would have been
given to the case by a Belgian court which, due to Belgian's charac-
terization of domicile, would have led to the application of English
law. This has been interpreted as meaning that England wanted the
matter to be decided by the Belgian system, but, as Belgian private
international law would settle it according to English law, England
accepted that and applied its own law.
Forgo v. Administration des domaines was decided by the French
Cour de Cassation in 1878 "4 regarding the estate of a Bavarian
national who lived in France, where he left movable goods and was
survived by collateral family members of his natural mother. Bavar-
ian rules of succession would allow these relatives to inherit, in con-
flict with Article 766 of the French civil code which did not include
these family members among the heirs of a deceased. So there was a
conflict between French and Bavarian laws regarding Forgo's suc-
cession.
In accordance with French conflict rules the succession had to be
decided by the law of Bavaria, where he was still legally domiciled
(according to French rules) because he had failed to obtain govern-
ment authorization to establish his domicile in France. But according
to the conflict rules of Bavaria, succession was ruled by the law of
the place where the estate goods were located and the place of the de
facto domicile of the deceased, which was in France. So Bavaria
indicated that French law was applicable. The French Cassation
Court accepted this return and applied French law, resulting in the
transfer of the estate to the French State.
Since the Forgo case, the principle of renvoi has prevailed in
France as well as in many other countries, by which the conflicting
rule of the forum is substituted by the conflicting rule of the other
jurisdiction, resulting in the application of a different law than the
one the forum had originally indicated. Thus, the principle of renvoi
neutralizes the connecting rule of the forum's conflict system, by
accepting the conflicts rule of another jurisdiction.
Some States are radically against the acceptance of renvoi 11', pro-
114. B. Ancel and Y. Lequette, op. cit., pp. 52 et seq.

115. Civil code of Greece, 1946, Art. 32, civil code of Spain, 1974 amend-
ment, Art. 12, para. 2, civil code of Quebec, 1991, Art. 3.080, Introductory Law
to the civil code of Brazil, 1942, Art. 16. The statute on private international law
of Tunisia, 1998, Art. 35, states that unless the law provides otherwise, renvoi is
not accepted.
viding that the reference to a foreign law is directed exclusively to

its substantive rules, without any regard to what the private interna-
tional law of that State provides on the subject. Denial of renvoi is to
be considered a principle just as the acceptance of it 116, because in
both cases, whether the order is to follow the conflicts rule of the
other jurisdiction or not to do so, what we have is the measure of
how far the forum's conflicts rule extends: does it command the
application of the foreign substantive law only or does it order to
follow the conflicts rule of the foreign jurisdiction as well?
To be in favour of renvoi or against its acceptance, both ways we
have the setting of the domain of the forum's conflict rules and as
such it is a principle that controls the extent of the rule. A principle
can be the source of a conflict rule as well as the measure of its
range. I would add another perspective: whether a State's conflicts
provisions accept renvoi or refuse it, it always amounts to a com-
mand regarding which conflicts rule is to be followed, the forum's
rule or the foreign rule, so it is a rule above the rules of conflicts of
the two jurisdictions, deciding which should be implemented. As a
provision of superior rank that commands the choice between rules
of choice of law of two jurisdictions, it amounts to a principle.
The Institut de droit international in a resolution approved in its
1999 meeting, in Berlin, favoured the acceptance of renvoi 17
Fraude a la loi
The application of the law indicated by the forum's conflict rules

is refused when this indication results from the endeavours of a party
that deliberately moves the centre of gravity of a legal relationship
from its natural seat to another one with the aim of evading the nor-
mally applicable law and obtaining the protection of the other juris-
diction, in a move that can be called "legal shopping" or "law shop-
ping". The principle is that "fraud makes an exception to all rules".
The Inter-American Convention on General Rules of private interna-
tional law provides in Article 6 that "the law of a State Party shall
116. E. Palmer, "The Austrian Codification of Conflicts Law", op. cit.,

p. 203, includes among the various private international law principles "the
application of renvoi" (at p. 210 the author refers to renvoi as a "guiding prin-
ciple"). What I sustain is that renvoi is a principle both ways, whether you admit
it or refuse it.
117. See RCDIP, Vol. 89 (2000) p. 135.
J. Dolinger
not be applied as foreign law when the basic principles of the law of
another State Party have been fraudulently evaded" 111.
This theory was bom in a court of law in 1878 when the French
Cassation decided Princesse de Bauffremont v. Prince de Bauffre-
mont11 9. The Court of Paris had declared the legal separation of the
parties in 1874, as there was no divorce in France at that time. The
Prince was French and the Princess was originally Belgian and had
become French by marriage. After the separation the princess moved
to the German duchy of Saxe-Altenburg where she received the local
nationality in 1875. In this German province Catholics who had been
legally separated were considered as divorced and allowed to
remarry. In the same year she was married to the Romanian Prince
Bibesco.
Prince Bauffremont felt embarrassed that the Princess was now
married to someone else, so he requested to the Court of the Seine
the annulment of both - the naturalization and the marriage of the
one that, according to French law of that time, was still his wife. The
Court decided that without her husband's permission, the new
nationality was not validly acquired and that even if she had
obtained authorization from Prince Bauffremont, this change of
nationality would not have resulted from a valid exercise of a right
conferred by the law, but would amount to an abuse. As such, the
court had to reject what was in its opinion an act contrary to good
morals and to the law. Judging an appeal of the Princess, the Court
of Paris changed the decision to say that French courts had no juris-
diction over the validity of the naturalization obtained abroad, but
that the subsequent marriage would not produce any legal effects in
118. ILM, Vol. 18 (1979), p. 1237. See also the following domestic statutory
provisions: Portuguese civil code, Art. 21, Hungarian statute on private interna-
tional law, Art. 8, civil code of Spain, as amended in 1974, Art. 12, para. 4, civil
code of Mexico, as amended in 1987, Art. 15, para. 1, and Tunisian statute on
private international law of 1998, Art. 30. This last provision is very clear and
complete, providing as follows:
"La fraude A la loi est constitue par le changement artificiel de 'un des
616ments de rattachement relatifs A la situation juridique rdelle dans
l'intention d'61uder I'application du droit tunisien ou 6tranger ddsignd par la
r~gle de conflit applicable. Lorsque les conditions de la fraude AIa loi sont
rdunies, il ne sera pas tenu compte du changement de l'616ment de rattache-
ment."
This provision covers fraud against the law of Tunisia or against any other appli-
cable law and states clearly the legal consequence of such act: the change of
connecting elements will be disregarded.
119. Ancel and Lequette, op. cit., pp. 41 et seq.
Resolving Conflicts in Contracts and Torts 245
France and, furthermore, that even if the couple had been in agree-
ment about what had been done, the Princess could not, via a natu-
ralization, evade the public policy provisions of the French law.
Judging a further appeal of the Princess, the Cassation court con-
firmed the Parisian court's decision and added that when she
requested the new nationality she was not moved by the purpose of
exercising the rights and abiding by the obligations that are attached
to this nationality, but that she did so with the sole purpose of escap-
ing from the French law and marrying again and then to abandon her
new nationality. These acts were done in fraud of the French law and
in disrespect of previous commitments taken up in France.
Here was born the principle that when a legal relationship fits into
one of the connecting elements of choice of law but is artificially
created in order to evade the originally applicable law, the connect-
ing rule will not be followed. The principle annuls the functioning of
the conflicts rule.
Characterization
The Bartholo case decided in 1889 by the Court of Appeals of

Algiers' 20 is the first known case from which emerged the character-
ization problem - did Bartholo's widow's right to his estate derive
from a community property right or from a succession right?
Characterization is not a conflicts law creation. It is an old
method of analysis and comparison between different legal issues
and we find it throughout the whole kaleidoscope of fields of law:
public law versus private law, substantive law versus procedural law,
penal law versus tax law and also within many fields of law, such as
- in civil law, for example - between personal law and realty law,
contract law and tort law, succession law and matrimonial r6gime
law. In criminal law we have different types of crimes which border
each other but have different concepts and carry different punish-
ments. "Characterization" is equivalent to "definition" - primarily a
matter of drawing lines or distinguishing between one kind of thing
and another which language marks off by a separate word 121.
Classification of all legal relationships and situations is inherent
120. Ancel and Lequette, op. cit., p. 61. And see ibid., p. 215, the Caraslanis
case.
121. See H. L. A. Hart, The Concept of Law, Oxford, Clarendon, 1961, p. 13.
J. Dolinger
in every legal system and in private international law different legal

relationships follow different connecting rules. Therefore, before I
decide which law to apply, when there is some connection of the
legal relationship with my own and with a foreign legal system, I
must first verify to which category the legal relationship belongs and
only then can I choose the applicable law in accordance with the
connecting rule established for that particular legal sector.
The problem is which legal system I resort to in order to decide
the category to which the legal issue pertains: the lexfori system or
the lex causae system, that is, the classificatory system of the forum
or of the jurisdiction of the other law that might be applicable.
Both theories regarding which law I must resort to in order to find
the characterization of the issue - lexfori or lex causae - coincide
that before choosing the applicable law I must resort to a classifica-
tory system to know which conflicts connecting rule will lead me to
the applicable law. The choice of law rule depends on the character-
ization of the legal issue, and so we have a preliminary, basic pro-
cedure, which stands as a principle that can lead to the application
of one or another connecting rule.
The principle/rule dichotomy in which the conflicts rule is super-
seded by the characterization principle comes out very clearly in
Haumschild v. Continental Casualty Company 122. The plaintiff, Mrs.
Haumschild, claimed from her husband and from the insurance com-
pany the recovery of damages for personal injuries suffered as a
result of a motor vehicle accident. The accident occurred in Califor-
nia and the couple was domiciled in Wisconsin. Under Wisconsin
law, a wife may sue her husband in tort, but not so in California. The
law, as it stood at the time of the judgment, was that interspousal
immunity from tort liability was governed by the law of the place of
injury, so the plaintiff would not be entitled to compensation. The
Wisconsin Supreme Court decided, however, that interspousal
immunity is a matter that lies in the sphere of family law rather than
in tort law, and as an issue of family, the applicable law is the one in
force in the married couple's domicile. This characterization brought
about a complete change in the analysis and solution of the case.
Here we have the characterization principle moving the subject mat-
ter away from one field of law to another and thus changing the out-
come of the case.
122. 7 Wisc. 2d 130, 95 NW 2d 814 (1959).

Vested rights
Vested rights has two totally different faces, the one created by
Pillet, in France, as an independent aspect and fundamental principle
of private international law, and the one developed by Dicey, in Eng-
land, and by Beale, in the United States, both inspired by Huber,
seventeenth-century Dutch internationalist. The Huber-Dicey-Beale
theory is well summarized by Morris who quotes from Dicey's third
edition 123, that established vested rights as the "general principle
n. 1, which lies at the foundation of the rules for determining the
extra-territorial operation of law", that it is "universally recognized"
and constitutes "a leading principle of modern civilisation". In the
same spirit, Beale elevated the vested rights theory into a dogma and
made it the theoretical basis of his system to the point of obsession.
For Dicey and Beale and those who followed them, the whole pri-
vate international law amounts to the vested rights theory by which
"the courts never in strictness enforce foreign law; when they are
said to do so, they enforce not foreign laws, but rights acquired
under foreign laws" 124
This approach is tantamount to annulling the basic philosophical
ground of private international law, that foreign law is as much law
as the forum law and that when certain circumstances occur, courts
are to apply foreign law instead of their own law, if and when the
former is more appropriate for the case; judges ought to do so
whether or not parties raise the applicability of the foreign law,
whether they do or do not manage to prove the content of the foreign
law. Private international law rules that indicate the application of
foreign law in certain circumstances are to be followed ex officio,
because above national societies we have an international society of
peoples and their transactions, civil, commercial and in all other
fields of life are to be considered above the narrow parameters of
national legal systems.
The isolation of the English from the continent and the parochial-
ism of the Americans has led to the acceptance of Huber's theory,
which was understandable in the seventeenth century, but does not
reflect the needs and realities of contemporary life in the small world
humanity has turned into. However, some authorities in the Anglo-
American world have abandoned Huber's idea that
123. J. H. C. Morris, op. cit., p. 520.
124. Ibid.
J. Dolinger
"Sovereigns will so act by way of comity that rights

acquired within the limits of a government retain their force
everywhere so far as they do not cause prejudice to the power
25
or rights of such government or of its subjects" 1
but have chosen another peculiar idea such as Walter Wheeler
Cook's theory, accepted by Cheshire who summarizes it this way:
"The only law applied by the judge is the law of the forum,
the only rights enforced by him are those created by the law of
the forum. But owing to the foreign element in the case the for-
eign law is a fact that must be taken into consideration, and
what the judge attempts to do is to create and to enforce a right
as nearly as possible similar to that which would have been
created by the foreign court had it been seised of a similar case
which was purely domestic in character." 126
Vested rights as a principle of private international law is identi-
fied with Antoine Pillet's theory. This French scholar advocated that
a right that has been validly obtained in one jurisdiction, in accor-
dance with the laws in force there, should be universally respec-
ted 127. This, explained Pillet, should not be confused with the prob-
lem of choice of law, because what concerns droits acquis - vested
rights - there is no choice to be made, as the right was already val-
idly gained, according to the applicable law in the foreign jurisdic-
tion. This means that, even if in the recognizing forum a different
law should have been applied, which would lead to a different final
result, this consideration is not longer relevant, since the right
already stands and all the forum has to do is to respect it.
The principle of vested rights, as formulated by Pillet 128, has the
125. See E. G. Lorenzen, "Huber's De Conflictu Legum", Selected Articles

on the Conflict of Laws, New Haven, Yale University Press, 1947, p. 164.
126. Cheshire and North's, op. cit., p. 8. The practical consequence of treat-
ing the foreign law as a fact can be seen in Dicey and Morris, op. cit., p. 226:
"Rule 18 - (1) In any case to which foreign law applies, that law must
be pleaded and proved as a fact to the satisfaction of the judge by expert
evidence or sometimes by certain other means."
127. A. Pillet, Principes de droit international privY, op. cit., pp. 495
et seq.
128. There has been considerable opposition to the "droits acquis" as formu-
lated by Pillet, including in his own country by E. Bartin, Principes de droit
international privi, Paris, tditions Domat-Montchrestien, 1930, pp. 193 et seq.
See also P. Arminjon, "La notion des droits acquis en droit international privd",
Recueil des cours, Vol. 44 (1933), pp. 5 et seq.
power to neutralize conflict of laws' rules, as these are not to be

applied whenever the situation has already been consolidated by the
earlier application of a foreign law in its jurisdiction. So we have
again a principle that supersedes the rules of private international
law.
This principle extends its effects to the recognition of foreign
judgments which is basically the judicial recognition of a right
legally and validly acquired abroad 129.
The vested rights principle - Pillet style - is found in various
modem private international law instruments, mainly in the Hague
conventions 130, where recognition of acts and judgments of other
jurisdictions is provided for. The 1996 Hague Convention on Juris-
diction, Applicable Law, Recognition, Enforcement and Co-opera-
tion in respect of parental responsibility and measures for the Protec-
tion of Children, Article 26, contains the following provision:
"1. If measures taken in one contracting State and enforce-
able there require enforcement in another contracting State,
they shall, upon request by an interested party, be declared
enforceable or registered for the purpose of enforcement in that
other State according to the procedure provided in the law of
the latter State."
Preliminaryquestion
Sometimes the solution of a legal problem will depend on the

solution of a previous matter, such as the validity of a marriage (pre-
liminary matter) in relation to a succession case (principal matter).
One theory advocates that the whole foreign law indicated by the
connecting rule must be followed, meaning that the preliminary mat-
ter has to be governed by the same legal system that controls the
principal matter, namely by the conflict rules of the foreign jurisdic-
tion and not by the forum's conflictual rules. So, for instance, if the
forum applies law of State X for the principal matter, the preliminary
matter should be governed by the private international law rule of
129. See H. Batiffol and P. Lagarde, Droit internationalprivi, op. cit., p. 517.
130. See the 1956 Hague Convention on recognition of the legal personality
of foreign societies, associations and foundations, Art. I ; the 1958 Hague Con-
vention on the Recognition and Enforcement of Alimony Judgments regarding
children, Art. 2, and many others.
J. Dolinger
the same State. This is in accordance with the principle that orders
the forum to judge exactly as would the court in the State of the
applicable law. This theory's objective is international harmony,
meaning that the forum has to come to the same final solution as
would the court of the State whose law was chosen by the forum for
the principal matter.
Another theory is that the preliminary matter has to be governed
by the conflict rules of the forum because this preliminary matter
could tomorrow appear as a principal matter in another case in the
same forum and both decisions must harmonize, the objective being
internal harmony.
Both theories expound a principle - whether international har-
mony or internal harmony - that commands which conflict rules
will apply to the preliminary matter - the forum's or of the jurisdic-
tion chosen for the principal matter.
Those are the negative principles of private international law,

excepting one more that, due to its importance and singular evolu-
tion, will be dealt with independently in the next chapter. Those
principles affect and/or modify one way or another the application of
the conflict rules in a methodology that I denominated "check and
balance". It is natural that whenever a conflict should occur between
a rule and a principle, the latter one will prevail.
Principlesof Positive Nature
Party autonomy
This is the oldest of the principles of private international law,

starting with the matter of the Ganney couple's community of prop-
erty in the sixteenth century when Dumoulin elaborated the theory of
party autonomy. This theory has become a principle in civil law as
well in the sense that parties' wills are to be regarded as the law
between them 131. Besides being the oldest, it has been considered as
perhaps the most widely accepted private international law rule of all
131. Art. 1.134 of the French civil code: "Les conventions 1galement
fortndes tiennent lieu de loi A ceux qui les ont faites."
time 13 2. Some authors, however, did not accept the sovereignty of

parties' will to choose the applicable law. In France, Antoine Pillet
held that the will of the parties could not extend or restrict the appli-
cation of a law that by nature is superior to this will ' and J. P.
Niboyet was also against the right of parties to choose the applicable
law to their contract, which would mean that they are out or above
any law, and that is against the technical nature of a legal act, espe-
cially a contract, which is like the machine of a clock from which
you may not remove any piece lest you stop the functioning of the
system 134.
European courts have been favourable to the choice of law by the
parties. In England, the case of Gienar v. Meyer, in 1796, is sup-
posed to be the oldest authority for expressly allowing parties to
select the governing law 135 . The modern source is Vita Food
Product, Inc. v. Unus Shipping Co., Ltd. where the Privy Council
proclaimed that
"It is now well settled that by English law ...the proper law
of the contract 'is the law which the parties intended to apply'
...Where there is an express statement by the parties of their
intention to select the law of the contract, it is difficult to see
what qualifications are possible, provided the intention
expressed is bona fide and legal, and provided there is no rea-
son for avoiding the choice on grounds of public policy." 136
In France, a classical case judged by the Cour de Cassation in
1910 said that "the law governing contracts, their formation, their
132. R. J.Weintraub, "Functional Developments in Choice of Law for Con-
tracts", Recueil des cours, Vol. 187 (1984), p. 271. K. Lipstein, op. cit., p. 65,
wrote that party autonomy is one of the "true principles of Private International
Law"and 0. Lando, "The Conflict of Laws of Contracts - General Principles",
Recueil des cours, Vol. 189 (1984), p. 284, classifies parties' freedom to choose
the law which governs the contract as a "general principle of law recognized by
civilized nations".
133. A. Pillet, Principes.. pp. 143 and 443.
134. J.P. Niboyet, Traitj de droit internationalprivifranfais, Vol. 5, Paris,
Sirey, 1948, p. 56.
135. Cheshire and North's, op. cit., p. 476. According to F. Vischer, op. cit.,
Robinson v. Bland, 1760 was the first decision on parties' intention as a govern-
ing principle, where Lord Mansfield applied English law because it was this law
which the parties envisaged.
136. [193911 All ER 513 (Privy Council). See J.H. C. Morris, "The Proper
Law of a Tort", Harvard Law Review, Vol. 64 (1951), p. 881, where he quotes
Dicey, Conflict of Laws, 6th ed., that the proper law of the contract is "the law,
or laws, by which the parties intend, or may fairly be presumed to have
intended, the contract to be governed".
J. Dolinger
conditions and their effects, is the law which the parties have
selected" 137. Excepting a few authorities, such as Pillet and Niboyet,
legal commentators have been favourable to the freedom of parties
to choose the applicable law, but disagreement has been constant
regarding the extent of this autonomy. Can parties choose any law or
must the choice fall on a legal system that has some connection with
the legal relationship ?
Professor Ernst Rabel was adamant about absolute freedom. He
spoke at the University of Michigan in 1949 and said that,
"the parties are entitled to agree in contracting on the law
applicable to their contract, and this with entire freedom;
otherwise, the parties would go devious ways where no law
can catch them, and at the same time the most effective, honest
means to reach predictable certainty would be destroyed. This
has been fully understood by the bulk of judicial authority in
mercantile countries cultivating world trade, such38as England,
Germany, Switzerland, Sweden and also France"'
and quoting Julliot de la Morandire in his report on a French draft
of conflict rules for sales,
"The freedom accorded to the parties is as wide as possible
in respect of the laws among which the choices of the parties
39
may be exercised." 1
The total freedom of choice has been advocated by numerous
authorities, of different countries, as Paul Lagarde 140 in France,
Aubrey L. Diamond 141in England, and Ole Lando 41 2 in Denmark.
137. Encyclopddie Dalloz - Ripertoire de droit international,Vol. 1, Paris,

Dalloz, 1968, p. 563, n. 2.
138. E. Rabel, "Conflicts Rules on Contracts", Lectures on the Conflict of
Laws and International Contracts, New York, William S. Hein, 1982, p. 129.
See Chapter V, section "The Principles of Party Autonomy and of Proximity".
139. Ibid.
140. P. Lagarde, "Le nouveau droit international privd des contrats apr s
I'entrde en vigueur de la Convention de Rome du 19 juin 1980", RCDIP, Vol. 80
(1991), p. 301, says that the parties can choose any law, for example a "neutral"
law, without any need to justify their choice.
141. A. L. Diamond, "Harmonization of Private International Law Relating to
Contractual Obligations", op. cit., pp. 265-267, who invokes the Rome Conven-
tion to exclude from the choice of law only mandatory rules of the country of
the closest connection.
142. 0. Lando, "The EEC Convention on the Law Applicable to Contractual
Obligations", op. cit., p. 181, interprets the Rome Convention's exception of
mandatory rules as referring to domestic contracts, exclusively.
Professor Adolf F. Schnitzer remarked in his course at this Acad-

emy that parties' choice will often be guided by what is considered
as the most appropriate, either because it contains the most advanced
rules on the subject matter, like English admiralty law if the transac-
tion has to do with sea transportation, even if it will never leave or
reach an English port, or the particular law is chosen because it is
the most recently enacted law on this matter and therefore deals with it
according to the needs of the present times 143. Professor F. Vischer,
also in his course at this Academy, said that the parties may wish to
choose a well-developed law which has special provisions for the
type of contracts in question, or they may look for a neutral law as
governing their contractual relationship 44
Another school of thought, although admitting party autonomy,
does not accept a choice of law of a country that has no relation to
the contract. Henri Batiffol in France, who dedicated much attention
to contracts since his comparative study on this subject in 1938145,
held that there must be some connection of the contract with the
chosen law. He wrote:
"I am not sure that the best way of protecting the liberty of
the parties is to allow them the possibility of choosing any law
they wish. Extreme positions are seldom the best, and it may be
asked if an unreasonable liberty is really an advantage for the
contracting parties." 146
This was also the position of David Cavers in the United States,
who included party autonomy among his "Principles of Preference",
which he drafted in the following way:
"If the express (or reasonably inferable) intention of the par-
ties to a transaction involving two or more states is that the law
of a particular state which is reasonably related to the transac-
tion should be applied to it, the law of that state should be
143. A. F. Schnitzer, "Les contrats internationaux en droit international priv6

suisse", Recueil des cours, Vol. 123 (1968), p. 588.
144. F. Vischer, "The Antagonism between Legal Security and the Search for
Justice in the Field of Contracts", Recueil des cours, Vol. 142 (1974), p. 33.
145. H. Batiffol, Les conflits de lois en mati~re de contrats - etude de droit
internationalprivi compar6, Paris, Sirey, 1938.
146. "Public Policy and the Autonomy of the Parties: Interrelations between
Imperative Legislation and the Doctrine of Party Autonomy", Lectures on the
Conflict of Laws and InternationalContracts, p. 7 1.
J. Dolinger
applied if it allows the transaction to be carried out, even

though neither party has a home in the state and the transaction
is not centered there. .... 147"
In 1991 at its session in Basle, the Institut de droit international

adopted a resolution on party autonomy in international contracts, in
which it established that, "Considering that autonomy of parties'
wish is one of the fundamental principles of private international
law" set forth in Article 3 the rule that "The choice of the applicable
law results from an agreement of the parties." 148
The principle of party autonomy will be restricted when it con-
flicts with another principle, such as the one that protects weaker
parties, which will not allow that the party with the greater bargain-
ing-power should impose on the other party a choice which will dis-
regard the protection given by that law on which the weaker party
reasonably relies 149.
Having been consecrated by courts of many lands 150 and accepted
by the absolute majority of scholars of private international law, the
principle of party autonomy was inserted in all conventions that deal
with contractual obligations, the Hague conventions on sales, trusts,
agency, the Rome Convention on the Law Applicable to Contractual
Obligations, the Inter-American Convention on the Law Applicable
to International Contracts, various conventions and institutional rules
dealing with arbitration and with dispute settlement. We will see in
Chapter V, dealing with contracts, how the principle has been estab-
lished in practically all conventions, modem statutes on private
international law and in case-law 151
147. D. F Cavers, "Principles of Preference: Excerpts from the Choice-of-

Law Process", The Choice of Law, Selected Essays, 1933-1983. See H. F.
Goodrich and E. F Scoles, Conflict of Laws, St. Paul, West Publishing, 1964,
p. 202: "The State of the most significant relationship is that effectively chosen
by the parties ... ".
148. RCDIP, Vol. 81 (1992), p. 198.
149. See F Vischer, op. cit., p. 42. See Chapter IV, section "Conflict of Prin-
ciples and Hierarchy of Principles".
150. See the Giuliano-Lagarde Report on the Rome Convention, specifically
on Article 3, where it refers to the jurisprudence of various countries and to the
international conventions that include the principle of party autonomy in their
texts. Professor M. Giuliano, in his lectures at this Academy, "La loi applicable
aux contrats: probl~mes choisis", Recueil des cours, Vol. 178 (1977), pp. 199-
229, dealt extensively on the doctrine and jurisprudence of many countries
regarding this subject.
151. See Chapter V, section "The Principles of Party Atonomy and of Prox-
imity".
In the United States, the principle of party autonomy to choose

the applicable law has been understood as a means to guarantee cer-
tainty and predictability 152
In French literature, the application of the law by the choice of
the parties is explained as the localization of the contract's seat 153
and in England as the means to ascertain the "proper law of the
contract".
Nationality
In the nineteenth and early twentieth century nationality was per-

ceived by some of the most important authors of international law as
a principle of major relevance. Mancini titled his inaugural address
to the Turin University in the year 1851, which he continued in the
year 1852, as "Della nazionalitA comme fundamento del diritto delle
gente". He continued to teach and to advocate in the political arena
his ideas on the importance of nationality for every person wherever
he is in the world; his proposition finally materialized in Article 6 of
the 1865 Italian civil code, which reads that "the status and capacity
of people as well as family relations are ruled by the law of the
nation to which the person belongs". In a Report to the Institut du
droit international, so spoke Mancini:
"The treatment of foreigners may not depend on the comitas
and the will, sovereign and discretionary, of each State. Science
cannot consider this treatment as anything else but the rigorous
obligation of international justice, from which no nation can
free itself without violating jus gentium, without breaking the
liens that unite the human species into one great community of
law founded upon the community and the sociability of human
nature." 154
Josephus Jitta refers that many States considered nationality as the
relatively reasonable principle at least as to their own citizens, resid-
152. See Professor Reese's rationale in this sense as reproduced in R. Cram-

ton et al., op. cit., p. 105. See Chapter V, section "The Principles of Party Auton-
omy and Proximity", regarding the criteria of both US Restatements on Conflict
of Laws.
153. See Batiffol and Lagarde, op. cit., 2nd vol., p. 265, and B. Audit, Droit
internationalprivi, Paris, Economica, p. 141.
154. See F. Laurent, Le droit civil international, Brussels/Paris, Bruylant-
Christophe/A. Marescq, 1881, p. 637.
J. Dolinger
ing abroad155 . In another moment, Jitta informs that many authors

considered the principle of nationality "the most important of all
principles of our science" 156.
In 1889, the Journal de droit international priv6 published an
article by F. Surville under the title "De la personnalit6 des lois
envisagde comme principe fondamental du droit international
priv" 157, in which the author ties the nationality principle to the rule
of Article 3 (3) of the French civil code, which provides that French
law applies to the status and capacity of French citizens wherever
they live.
Nationality is a principle of international law latu sensu, from
which a rule of private international law is derived, namely the con-
necting rule that sets the nationality law to be applied in status and
personal legal matters, just as in some legal systems the rule of dom-
icile is the prevailing connection, both of which - nationality and
domicile - are to be compared to the locus of a property, to the
place of contracting or to the place of contract performance: these
are all connecting rules.
In other words, nationality is conceived as a principle, but its
practical application in private international law has the connotation
of a connecting rule, a very important one, it is true, but still a rule
and not a principle.
Basically, this does not contradict what Surville wrote, because he
was referring to the personnalit des lois, namely that a person has
to be ruled by one single law wherever he is found, because "his"
law accompanies him wherever he goes, and in that sense the notion
that every person has a law that is incorporated in his legal person-
ality, characteristically denominated "personnalit6 des lois", is indeed
a principle. It is basic in the philosophy of private international law,
that every jurisdiction ought to recognize that there are situations
and relationships that are to be ruled by a foreign legal system and
not by lexfori - the extraterritoriality of law - and one of the out-
standing manifestations of this extraterritoriality is the governing
law of each individual in the realm of his capacity, status, family and
succession. Which is the law that rules a person wherever he goes in
the world? For some, the person's nationality, for others, his domi-
155. J. Jitta, The Renovation of International Law, The Hague, Martinus
Nijhoff, 1919, p. 107.
156. J. Jitta, Mtodo de derecho internacionalprivado, op. cit., p. 144.
157. Clunet, Vol. 16, p. 530.
cile - these are two of the connecting rules that indicate the law to
be chosen in different occasions and situations 158
In brief, nationality should be understood as a principle that is
born in public international law, from which derive various rules,
such as diplomatic protection and exemption from extradition, and
then the principle flows into private international law, where it
creates the choice of law rule that points to the applicable law in
various matters such as status, family law and others.
Lex rei sitae and locus regit actum
The proposition that immovables are ruled by the law of the place
where they are located is one of the classical conflicts connecting
rules, but some authors insist in elevating this rule to a "general
principle" 159, perhaps due to its universal acceptance 160. Professor
K. Lipstein considers that the rule that immovables are governed by
the lex situs and that rights in movables acquired in virtue of a
previous lex situs must be respected, are "true principles of pri-
vate international law", though he does not agree that they are uni-
versally applied 161. 1 say that to rule immovables by the lex situs is
actually a matter of public policy - in its more common meaning
- the undeniable right of each State to rule over lands and proper-
ties situated in its territory in accordance with its own legal system.
I go further and say that the application of any foreign law over
properties situated in my State is blocked by the private international
law notion of public policy, because it is incompatible with my legal
system that different pieces of property in my territory should be
ruled by different laws, depending on the circumstances of each
158. But see W. Wengler, "General Principles of Private International Law",

Recueil des cours, Vol. 104 (1961), p. 359, and E. Palmer, op. cit., pp. 214 and
215, who denominate nationality and domicile in private international law as
principles.
159. J. Jitta, Metodo.. ., p. 129. M. Gutzwiller, op. cit., p. 385, refers to lex
rei sitae and to locus regit actum as the "principles with roots from the begin-
nings", and at page 305 he says that things are ruled by the law of the place of
which they have their "citizenship" (citoyennetd des choses).
160. H. U. J. D'Oliveira, "'Characteristic Obligation' in the draft EEC
Obligation Convention", AJCL, Vol. 25 (1977), p. 321, says, in the name of
F. Vischer, that lex rei sitae is applicable in view of the strong influence on
the transaction by the mandatory regulations on title registration and recording
of deeds in force at the place of the property. See W. L. M. Reese, "Choice
of Law in Torts and Contracts and Directions for the Future", op. cit., p. 41.
161. K. Lipstein, op. cit., pp. 64 and 65.
J. Dolinger
legal relationship as this could lead to legal chaos in the national ter-
ritory. So we have here a matter that touches upon the sovereign
right of the State and that justifies elevating the conflictual rule of
lex rei sitae to the status of a principle. The principle of sovereignty
that each State exercises over all the properties located in its territory
leads to the lex rei sitae connection.
The respect due to the rights over movables acquired by virtue of
a previous lex situs is justifiably a principle because it is based on
the vested rights theory, one of the classical principles of private
international law, as seen above.
Lipstein 162 also elevates lex loci actus, or locus regit actum - the
classical rule that the formalities of a legal act obey the law of the
place where the act is performed - to principle status 163, which is
not justified. I maintain that since the rule of locus regit actum is not
obligatory, as contracting parties are allowed to choose any other
formality, of different legal systems, it is merely an optional rule and
should remain classified as a conflicts rule 164.
Principleof sovereignty
The statutists held that a sovereign State is entitled to demand that

certain legal relationships of private law should always be submitted
to its law. This was the main point of Ulrich Huber's territorialist
theory 165 and also of the French d'Argentr6 166. Professor Lagarde
goes further and claims that Mancini's insistence on the application
to every person of his national law could very well have been
grounded on the same notion of the sovereign authority of the
national law. According to him, locus regit actum and lex loci delicti
for delicts committed in France, can be equally ascribed, at some
162. K. Lipstein, op. cit.

163. See R. Genin-Meric, La maxime locus regit actum - Nature etfonde-
ment, Paris, LGDJ, 1976, pp. 148, 167 et seq.
164. See ibid., pp. 148 and 167, where the author considers it as a principle.
165. Huber in his "De Conflictu Legum Diversarum in Diversis Imperiis"
established three maxims, the first two containing the essence of his territorial
theory: the law of each State has force within the limits of that government and
bind all subjects to it, but not beyond (1) and all persons within the limits of a
government, whether they live there permanently or temporarily, are deemed to
be subjects thereof (2). See E. G. Lorenzen, Selected Articles on the Conflict of
Laws, op. cit., pp. 136-137.
166. See F. Juenger, "A Page of History", Mercer Law Review, Vol. 35
(1984), pp. 431-432, M. Gutzwiller, op. cit., p. 327, and P. Lagarde, "Le principe
de proximit6.. .", pp. 49-50.
time in the evolution of our field, to the principle of sovereignty, the

last one as a manifestation of Article 3, paragraph 1, of the French
civil code that states that the "lois de police et de sfiret" are appli-
cable to all those that live in the French territory 167
A French Cassation decision held that an Algerian nationalization
measure cannot have effects beyond the national borders due to the
principle of sovereignty and therefore would not be enforced in
French territory 168 , which should be seen as a public international
law measure 169.
Actually, sovereignty should be seen as a principle of public inter-
national law, or perhaps a general principle of international law, with
effects upon all its divisions, and naturally also on private interna-
tional law 170. In a wider perspective, the principle of sovereignty is
the basis for various other principles of private international law,
such as the principle of nationality, the principle of ordre public, the
principle of respect for lois de police or mandatory rules and also for
lex rei sitae. On the other hand, sovereignty can conflict with mod-
em principles, such as the principle of proximity 171.
Protective principles
Private international law gives due consideration to the protection

of certain persons and certain institutions, basing its choice of law
criteria on considerations for the well being of the former and the
167. P. Lagarde, "Le principe de proximitd...", p. 50.

168. SocWti mditerraniennede combustible v. Sonatrach, RCDIP, Vol. 68
(1979), p. 803. The syllabus reads: "Le principe de souverainetd des Etats a
pour consdquence qu'une mesure de nationalisation ne peut avoir d'effet que sur
le territoire de l'Etat qui la prend." But the syllabus also contains the following
affirmation: "Viole ce principe d'ordre public et ne peut recevoir l'exequatur en
France la decision algrrienne . . ." which could indicate that the sovereignty
principle referred by court is nothing more than the private international law
public policy principle.
169. H. Batiffol, in his comment on the Cassation decision, ibid., p. 807, says
that probably the most important consideration in such cases is to know whether
the foreign State exceeded or not its powers in accordance with public interna-
tional law. See B. Oppetit, "Les principes g~n~raux...", p. 186.
170. See H. Kelsen's theory on sovereignty in Chapter I, section "Principle of
Law". But see P. H. Neuhaus's opinion, brought down by F. Juenger, "A Third
Conflicts Restatement?", Indiana Law Journal,Vol. 75 (2000), p. 415, that "the
idea of sovereignty, which in our century has become dubious even in interna-
tional law, does not, at least in private international law, perform any useful ser-
vice".
171. See Chapter IV, section "Conflict of Principles and Hierarchy of Prin-
ciples".
J. Dolinger
stability of the latter. Favor infans,favor matrimonii (and sometimes

even favor divortii), favor testamenti, due consideration for third
parties' rights 172 and protection of impaired adults 173. In some coun-
tries nationals receive preferential treatment in inheritance matters.
In the fields that this study deals with - contracts and torts - we
have the protection of the weaker party (employee and consumer) in
contracts 174 and favor laesi in torts 175. Lex rei sitae's provisions will
protect the lessee in matters related to rent control and termination of
leases 176
This protective philosophy is reflected in conflict rules that will
lead to the lexfavoritatis- the more favourable law - as the appli-
cable legal system. It has been understood that the tendency to apply
the law of the person's habitual residence to certain matters stems
from the protective principle 177
Protection materializes through the subsidiarity of various con-
necting factors as in the 1961 Hague Convention on Conflict of
Laws Relating to the Form of Testamentary Dispositions which
enumerates eight different laws that can be applied to establish the
formal validity of a testamentary disposition 178
The Swiss statute on private international law protects the recog-
nition of a child by providing in Article 73 that when it is established
abroad, it is recognized in Switzerland if it is valid in any of the fol-
lowing States: the habitual residence of the child, his national State,
the domicile or national State of the father or the mother. In France,
Article 311 (16), (17) and (18) of the civil code protects legitimiza-
tion through marriage, recognition of paternity or maternity and
children's alimony, by establishing the various legal systems that can
172. See Art. 3 (2) of the Rome Convention on the Law Applicable to Con-
tractual Obligations, in fine: "Any variation by the parties of the law to be
applied made after the conclusion of the contract shall not prejudice its formal
validity under Article 9 or adversely affect the rights of third parties."
173. See the Hague Convention on the International Protection of Adults,
ILM, Vol. 39 (2000), pp. 7 et seq.
174. In Chapter V, dedicated to contracts, we shall see how the principle of
protection of employees and consumers materializes.
175. In Chapter VI, we shall see how the protective principle influences the
rules on transnational torts.
176. See E. Palmer, op. cit., p. 220.
177. F. Vischer, op. cit., p. 30.
178. An earlier manifestation of form validity is found in the 1902 Hague
Convention on the Resolution of Conflict of Laws in matters of marriage,
Article 5 providing the lex loci celebrationisrule, which was slightly broadened
by Article 9 of the 1978 Hague Convention on celebration and recognition of
the validity of marriages.
be resorted to for these purposes, in accordance with the modifica-

tions introduced by a 1972 statute.
Principleof validity
The preoccupation with the validity of legal acts has been an

important guideline in the choice of law ruling, regarding both the
form and substance of legal acts. This principle is sometimes close
to the protective principle because it deems to protect legal acts from
invalidity. The option given to contractual parties of following or not
the locus regit actum rule regarding the form of contracts is an indi-
cation of the purpose of validating the legal act, accepting it whether
accomplished according to the form of the place of its execution or
in accordance with the form used in the legal system that is appli-
cable to its substance 179
The principle of validity was registered by Savigny, when he said
that,
"If the application of the rules above laid down would lead
us to subject the contract to a law, according to which it would
be invalid, while it would be valid by the law of the domicile,
it is then certainly not to be presumed that the parties intended
to subject themselves to a local law which is entirely opposed
to their purpose." 180
Ehrenzweig notes that "the principle that a contract will be upheld
whenever possible, the favor negotii, is well established in the laws
of all countries" and qualifies the principle as "one of the true rules
of conflicts law of contracts. Wherever the court's choice is between
the assumption of an invalidating or a validating rule, it will assume
the latter." 181
179. See B. Audit, op. cit., p. 427. On p. 428: "le juge s'6tant prononc6 en
faveur de celle des lois en pr6sence qui validait I'acte". And see F. Vischer,
op. cit., p. 56, who brings down Lord Denning's opinion in Coast Ltd. v. Hudig
& Veder Chartering N.V., that "it is an accepted principle that a contract is, if
possible, to be construed so as to make it valid rather than invalid".
180. Savigny, op. cit., English translation, pp. 223-224.
181. A. A. Ehrenzweig, Treatise on the Conflict of Laws, St. Paul, West Pub-
lishing, 1962, p. 465. The author indicates that the principle goes back to Barto-
lus in the sixteenth century, quotes the Prussian Code of 1794 and the Austrian
Code of 1811. See W. Reese, "Choice of Law: Rules or Approach", Cornell Law
Review, Vol. 57 (1972), p. 331, where he refers to various rules of the Restate-
ment Second, Conflict of Laws that reflect the validating principle.
J. Dolinger
The conventions that deal with contractual obligations and with

sale contracts contain rules that are based on the principle of valid-
ity, such as the Rome Convention on the Law Applicable to Contrac-
tual Obligations, Articles 3 (2) infine, 9 and 14 (2), on formal valid-
ity, and Article 11, on substantial validity, and in the 1986 Hague
Convention on the Law Applicable to Contracts for the International
Sale of Goods, Article 11, on formal validity. The same principle
underlies the rule contained in Article 14 of the 1985 Hague Con-
vention on the Law Applicable to Trusts and Their Recognition,
which provides that the convention shall not prevent the application
of rules of law more favourable to the recognition of trusts.
The conventions approved by the Inter-American Specialized
Conference on private international law also contain rules based on
the validity principle such as Articles 1 and 4 of the 1975 Panama
Convention on Conflict of Laws Concerning Bills of Exchange,
Promissory Notes and Invoices, Articles 1 and 4 of the 1979 Mon-
tevideo Convention on Conflicts of Laws Concerning Cheques, and
Article 13 of the 1994 Mexico Convention on the Applicable Law to
International Contracts.
The validity principle relates to the objective of not disappointing
the expectation of the parties 182, or, as some put it, for the purpose
of reaching a result 183 . The validation principle is actually remi-
niscent of the principle that commands respect for the autonomy of
the parties to choose the applicable law, as both principles - parties'
autonomy and validity - aim at guaranteeing that the wish of the
parties materializes. The validity principle is very present in the
UNIDROIT Principles of International Commercial Contracts 184.
An illustration of how the validity principle has been expanding
in all fields of conflicts law is the rule of Article 36 of the Swiss
1987 law on private international law regarding the capacity of
natural persons 185.
182. See W. Reese, "Choice of Law in Torts and Contracts and Directions for
the Future", op. cit., p. 29.
183. P. Lagarde, "Le principe de proximit", pp. 56-57, and B. Audit, op. cit.,
p. 427.
184. See M. J. Bonell, op. cit., p. 117.
185. Article 36 provides:
"If, according to the law of his domicile, the party to a legal document is
incapable, he cannot invoke this lack of capability if he would be capable
pursuant to the law of the State where the legal document was accom-
plished, unless the other party was unaware or should have been aware of
this lack of legal capability."
Equality/fairness/reasonableness/suitability,
or the principle of equity
The idea of what is just, fair and reasonable, Ulpiano's three

golden rules (honeste vivere, alterum non laedere, suum cuique tri-
buere) 186, the aequo et bono - good and equitable - which the
Western world has inherited from Roman law 187 and the principles
of good faith which pervades private law' 88 have always been
present in the theories of private international law. The first recom-
mendation that one should strive to choose the best law occurred at
the end of the twelfth century in the writings of Aldricus, one of the
famous glossators. Which law should be applied in litigation
between people of different provinces that are governed by different
rules, asked Aldricus; his answer was "quae potior et utilior videtur
debet enim judicare secundum quod melius ei visum fuerit", which
means that the judge should apply the law that would seem to him to
be better and more useful. Authors speculated whether the mediaeval
author meant the law more intimately connected to the matter liti-
gated or was he referring to the quality of the actual substantive rule
of law. The second alternative has been preferred by the historians of
private international law 189 .
For centuries the idea of the better law was left in the background
of the discussions on choice of law as the two schools - the univer-
salist and the unilateralist - applied a dogmatic approach and a
technical method to find the solution to conflicts of laws. In the last
hundred years, Aldricus's proposition, under a different terminology,
has been appearing in the study and practice of the conflict of laws
science.
For Antoine Pillet the principles of private international law are
based on public international law and the first of these principles is
186. See supra Chapter I, under section "Philosophy/Theology as Introduc-

tions to Law".
187. See J. Dolinger "Unconscionability around the World: Seven Perspec-
tives on the Contractual Doctrine - Introduction", Loyola of Los Angeles Inter-
national and Comparative Law Journal, Vol. 14 (1992), p. 437.
188. We have seen in Chapter I, under section "Absolute and Relative Prin-
ciples" about European codes' provisions on good faith. China adopted in 1986
the General Principles of Civil Law of the People's Republic of China, Article 4
stating that "civil activities must be carried out in accordance with the principles
of voluntariness, fairness, exchange of equivalent values, honesty and good
faith".
189. See M. Wolff, Derecho Internacional Privado, Spanish translation by
A. M. L6pez, Barcelona, Bosch, 1958, p. 22, M. Gutzwiller, op. cit., p. 301.
And see Chapter V, section "An Old Source for the Principle of Proximity".
J. Dolinger
the one that orders equality. David Cavers proposed in one of his
Principles of Preference that, as the Minnesota saloon-keeper was
judged liable for injuries sustained in Wisconsin by a Minnesota pas-
senger travelling in a car driven by another citizen of Minnesota who
had too freely imbibed at the defendant's Minnesota bar, the liquor
sales having been in violation of Minnesota law 11, the same should
apply if the injured party had been a Wisconsin passenger instead of
a Minnesota passenger. This was most probably Cavers's expression
of the equality principle. Cavers explained that
"the conduct is just as bad when the victim is an outsider as an
insider . . . Plainly it would be unjust - and quite possibly
unconstitutional - for Minnesota to protect Minnesotan hurt in
Wisconsin and not to protect Wisconsinians."
So here we have the idea of applying Minnesotan and not Wisconsin
law, in order to maintain the principle of equality in the law. This
statement of Professor Cavers is, in a certain measure, reminiscent of
the principle that commands respect for the public policy of another
jurisdiction, despite its omission in protecting itself, which we will
discuss in Chapter III.
In recent years we have witnessed an increasing tendency to intro-
duce the reasonableness/fairness principle to legal sources, to stat-
utes as well as to dispute resolutions. In the Netherlands an Outline
of a General Statute on Private International Law was published in
1992, Article 8 of which contains the ordre public exception fol-
lowed by another exception which says: "This may also be the case
if in the given circumstances the result would be unacceptable
according to the criteria of reasonableness and fairness." 19'
Some propositions prefer to speak of suitability and dress it as a
general exception clause, such as the one suggested in Canada by
J. G. Castel, which reads: "The law designated by statute is, by way
of exception, not applied if, taking all the circumstances into account,
it would be more suitable to apply the law of another State." This
proposition does not consider the intensity of the connection to
another law as the Swiss Article 15 does. The Castel proposition is
meant as a correction to the principle of the closest connection -
190. Schmidt v. Driscoll Hotel, Inc. [27] 249 Minn. 376, 82 NW 2d 365
(1957). See D. Cavers, op. cit., p. 169.
191. See K. Boele-Woelki, "Exception Clauses in Private International Law
Netherlands", K. Iatridou, op. cit., p. 266.
principle of proximity - when the law resulting from this indication

would lead to a less suitable outcome than if another State's law
were to be applied. The suitability principle seems very close to the
principle of fairness and reasonableness; perhaps it is actually the
very same idea.
One of the purposes of the American Law Institute's Complex Liti-
gation Project 92 is to facilitate and promote the application of a
single law to all similar claims being asserted against one defen-
dant in a mass tort or mass contract case, in an effort to ensure that
all similar tort claims against the same defendant and all claims
under the same or similar contracts with a common party be treated
equally, which once more demonstrates the care with equality/fair-
ness.
The UNIDROIT Principles of International Commercial Contracts
are thoroughly inspired in the good faith and fairness principles.
"Each party must act in accordance with good faith and fair dealing
in international trade" is established in Article 1.7, from which stem
various other rules of the UNIDROIT Principles, such as Article
3.10193 and Article 7.1.6194. The UNIDROIT principles co-exist and
support the rules contained in the United Nations Convention on
Contracts for the International Sale of Goods (CISG), especially
regarding the principles of fairness and good faith 95.
A strong manifestation in favour of the principle of equity is con-
tained in the Inter-American Convention on the Law Applicable to
International Contracts, Article 10, which states:
"In addition to the provisions in the foregoing articles, the
guidelines, customs and principles of international commercial
law as well as commercial usage and practices generally
192. See S. C. Symeonides, "Exception Clauses in Conflicts Law - United

States", K. Iatridou, op. cit., p. 125.
193. Article 3 (10) sets that "a party may avoid the contract or an individual
term of it if, at the time of the conclusion of the contract, the contract or term
unjustifiably gave the other party an excessive advantage. .
194. Article 7 (1) (6)
"A clause which limits or excludes one party's liability for non-perfor-
mance or which permits one party to render performance substantially dif-
ferent from what the other party reasonably expected may not be invoked if
it would be grossly unfair to do so, having regard to the purpose of the con-
tract."
195. See M. J. Bonell, op. cit., Chap. 4 on "The Unidroit Principles and
CISG", pp. 61 et seq.
266 J. Dolinger
accepted shall apply in order to discharge the requirements of

justice and equity in the particular case."
Arbitral awards constitute a rich source for the setting of the gen-
eral principles of law and equity that must govern international com-
mercial transactions, such as the equilibrium of the reciprocal obli-
gations and the good faith in the interpretation of agreements 196.
Arbitral courts have a wide repertoire of terms regarding the prin-
ciples that govern international commercial transactions: the "general
principle of good faith", "the fundamental principle of the obligatory
force of obligations undertaken (pacta sunt servanda)", "principles
that are at the base of all contractual relationships, especially in inter-
national relations and that are consecrated by the usages of interna-
tional commerce and by international law" and many more expres-
sions that are found in the growing number of arbitral awards 197.
French courts have confirmed arbitral awards based on interna-
tional lex mercatoria,on the
''general principles of obligations that are generally applicable
in international commerce, such as the good faith that has to
preside the execution and performance of contracts and that
expresses a moral rule of behavior that can be connected to the
general principle of responsibility" 198
As already mentioned, the modern approach to resolution of con-
flicts is twofold: uniformization and harmonization. The CISG and
the UNIDROIT Principles unify the rules of international commer-
cial transactions, whereas the conflict rules that are set in conven-
tions such as the 1980 Rome Convention and the 1986 Hague Con-
vention harmonize the choice of law in cases of conflicts in contract
law. The proper conventions establish the bridge between the two
methods, such as Article 7 (2) of CISG 199 and Article 9 of the Inter-
196. See International Chamber of Commerce award in case 2291 of 1975,
Clunet, Vol. 193 (1976), p. 989; award in case 3267 of 1979, Clunet, Vol. 107
(1980), p. 962; award in case 3327, Clunet, Vol. 109 (1982), p. 971.
197. See B. Oppetit, "Arbitrage et contrats d'Etat - L'arbitrage Framatome
et autres c/Atomic Energy Organization of Iran", Clunet, Vol. 111 (1984), p. 37.
198. Decision of Tribunal de grande instance de Paris, Clunet, Vol. 108
(1981), p. 836.
199. Art. 7 (2) of CISG provides:
"Questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general principles
on which it is based or, in the absence of such principles, in conformity
with the law applicable by virtue of the rules of private international law."
American Convention on the Law Applicable to International Con-

tracts 200
Each of the principles under the heading of Positive Principles has

different and specific characteristics, but what is alike in them is that
they lead to the application of a rule that is capable of resolving a
conflict. Yet it has to be admitted that the principle of sovereignty,
when it leads to the exception clauses - or principles - of ordre
public and lois de police, which we will be discussing in the next
chapter, carries a negative aspect, but not so when it leads to the
principle of nationality and to lex rei sitae. In any case I do not
refrain from including sovereignty among the positive principles.
Guiding (or Policy) Principles
The principles of this section are basic policy orientations in the

solution of conflict of laws, the first two directed to the courts, the
third one to the legislator. Effectivity teaches courts how to choose
the applicable law, or rather how not to choose the wrong law and
harmony orientates courts how to apply the chosen laws when
djpegage occurs with a view to attain internal harmony and equi-
table solutions. Uniformity is the fundamental orientation that legis-
lators should follow in order to achieve international harmonization
in the solution to problems caused by conflicting laws that affect
people that live and work transnationally.
Principle of effectivity
In choosing the applicable law a court should consider the
enforceability of the decision based on that law. In other words, a
200. Article 9 of the Convention reads:

"If the parties have not selected the applicable law, or if their selection
proves ineffective, the contract shall be governed by the law of the State
with which it has the closest ties. The Court will take into account all objec-
tive and subjective elements of the contract to determine the law of the
State with which it has the closest ties. It shall also take into account the
general principles of international commercial law recognized by interna-
tional organizations."
See Chap. V, sections "The Proximity Principle and Other Principles in the Inter-
American Convention on the Law Applicable to International Contracts" and
"The United Nations Convention on the International Sale of Goods".
J. Dolinger
choice of law that leads to a result that will not be enforced in the
jurisdiction where it would normally have to be enforced is not a
good choice2"'. Professor Wilhelm Wengler, in his course at this
Academy, has set this idea in a very clear manner:
"Every forum should apply to every legal question ... the
appropriate rule enacted by that state which has the greatest
chance to ensure the carrying into effect of its rule ... " 202
And again:
"One might even imagine that every conflict rule of a coun-
try contains a tacit proviso that the law to be applied according
to the normal conflict rules of the forum shall be applied only
if, in the individual case, the execution of the judgment might
be ensured effectively by the authorities of the forum state or
by the authorities of another state. If it is found that a decision
on the basis of the conflict rules of the forum could not be car-
ried out in one or the other way because of the opposition of
other states which prefer the application of another law, another
time the question would arise what law should be applied
instead of the law indicated by the normal conflict rule, or what
other solution is appropriate if the law which ought to be
applied cannot be applied because the decision could not be
carried out. The most appropriate solution in such a case would
perhaps be to allow the court to decline the exercise of jurisdic-
tion; in the United States the so called forum non conveniens
doctrine might perhaps be used for that purpose ... " 203
It could be argued that forum non conveniens is not really the
answer to the effectivity problem, because one should distinguish
between procedural aspects and judgment enforceability. Forum non
conveniens allows a court to decline jurisdiction when another forum
would be more appropriate because the chosen forum is inconven-
ient for the defendant, witnesses and/or the court, due to procedural
considerations, whereas the effectivity doctrine concerns the need
for certainty that the final judgment will be enforceable in another
201. See Camelutti, "Limiti della Giusisdizione del Giudice Italiano", Rivista
Diritto Processual Civile, Vol. 8, 11 (1931) pp. 218 et seq.
202. W. Wengler, "The General Principles of Private International Law",
op. cit., p. 360.
203. Ibid., p. 396.
jurisdiction and so is in the exclusive interest of the plaintiff. It

amounts to saying to plaintiff that from his point of interest he has
chosen a non-suitable jurisdiction. But there is no denial that in Gulf
Oil Corp. v. Gilbert2°4, the Supreme Court of the United States
stated, among other considerations that "there may also be questions
as to the enforceability of a judgment if one is obtained", which
clearly indicates that forum non conveniens can also reflect consid-
erations of the judgment's effectivity.
The Quebec civil code, Article 3 (135), which admits that a local
authority may, exceptionally, decline its jurisdiction if it estimates
that the authorities of another State are better able to solve the litiga-
tion, does not fit into the effectivity principle because it conditions
this decision to the request of a party, and this could hardly material-
ize as the defendant will not have any interest in removing a case
because the judgment would not be enforceable, and the plaintiff is,
after all, the one who already chose the particular jurisdiction where
he started the suit.
The effectivity principle does not affect a choice of law by the
forum only because it differs from the choice of law rule of the
future recognizing jurisdiction, because this does not justify the
refusal of recognition 2 °5 , except in the French system 2". What has
to be considered under this principle is whether the decision the forum
may reach might be incompatible with the ordre public of the
enforcing jurisdiction, which would inevitably lead to the unenforce-
ability of the judgment. The Inter-American Convention on Extra-
territorial Validity of Foreign Judgments and Arbitral Awards sets in
Article 4 that "if a foreign judgment, award or decision cannot be
executed in its entirety, the judge or tribunal may agree to its partial
execution at the request of an interested party"; this possibility may
be good enough reason for a tribunal to refuse jurisdiction in order
not to have its judgment enforced only in part.
204. 330 US 501.

205. The 1971 Hague Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters states, in Article 7, that
"recognition or enforcement may not be refused for the sole reason that the court
of the State of origin has applied a law other than that which would have been
applicable according to the rules of private international law of the State
addressed". But, as seen above, Wengler holds that a different choice of law in
the recognizing/enforcing State does materialize the effectivity problem and
should lead to the non-exercise of jurisdiction.
206. See H. Batiffol and P. Lagarde, op. cit., Vol. 2, p. 582, and P. Mayer,
op. cit. p. 257.
J. Dolinger
So effectivity is a principle that can either lead court to choose

another law than the one normally applicable according to its confict
provisions, or can result in a jurisdictional solution, for example, the
decliner of the exercise of jurisdiction.
Principle of harmony
Another guiding principle in working with private international

law rules is the one that recommends the need to conciliate different
legal issues, parts of the same relationship, that are ruled by differ-
ent legal systems as a consequence of different connecting factors.
This has been expressed by the Inter-American Convention on Gen-
eral Rules of Private International Law, Article 9, which reads:
"The different laws that may be applicable to various aspects
of one and the same juridical relationship shall be applied har-
moniously in order to attain the purposes pursued by each of
such laws. Any difficulties that may be caused by their simulta-
neous application shall be resolved in the light of the require-
20 7
ments of justice in each specific case.
When different aspects or issues of a complex legal relationship

are ruled by different legal systems we have the dipefage phenome-
non. Contracts which have connections with different legal systems
are known in French literature as "plurilocalisgs"208. The Rome and
Inter-American Conventions on the Law Applicable to Contractual
Obligations foresee the possibility of different aspects of the same
contract ruled by different laws 2" 9 . The Inter-American Convention
on General Rules of Private International Law refers to two situa-
tions: contradictory solutions indicated by the different applicable
laws and inadequate, unjust results. For the first situation the Con-
vention recommends that a harmonious solution should be found and
for the second one, that a solution be found which is just and equita-
ble for the specific case 210 . Here we have the substantive law
207. See ILM, Vol. 18 (1979), p. 1236. The convention is in force in Argen-
tina, Brazil, Colombia, Ecuador, Guatemala, Mexico, Paraguay, Peru, Uruguay
and Venezuela.
208. H. Batiffol and P. Lagarde, op. cit., Vol. 2, p. 274.
209. Rome Convention, Arts. 3 (1) and 4 (1); Inter-American Convention,
Arts. 8 and 9 (3).
210. See T. B. de Maekelt, Normas Generales de Derecho InternacionalPri-
vado en America, Caracas, Universidade Central de Venezuela, 1984, p. 174.
approachthat leads to result selectivity, which in the United System

system of conflicts is used as a general approach to choice of law
and in the Inter-American convention only in plurilocalisi situa-
tions.
The recent Venezuelan statute on private international law has set
the same principle in its Article 7:
"The various laws that may be competent to govern different
aspects of the same legal relationship, shall be applied harmo-
niously, trying to materialize the purposes aimed by each of the
referred laws. The possible difficulties caused by their simul-
taneous application shall be settled by taking in consideration
the demands of equity of the concrete case."
Principlesof uniformity
I shall deal here with three methods to resolve conflict of laws

that Governments and their legislators have to take into considera-
tion in order to decide how to regulate transnational legal situations,
unilaterally sometimes, multilaterally on other occasions.
(1) Uniformity of substantive rules reached through Uniform Laws,
which occurs when different States agree, by means of a conven-
tion, to uniformize the provisions that govern a certain legal
institution, as done by the 1930 and 1931 Geneva Conventions
on Promissory Notes and Cheques, the 1980 Vienna Convention
on International Sales and other conventions in different areas,
especially in those where there is transnational activity. This I
call Uniformization of Substantive Rules.
(2) Domestic conflict rules form what I call Harmonizationbecause
they harmonize the conflicts by means of choice of law and once
you choose one law out of two or more, the conflict between the
substantive rules of the different jurisdictions becomes irrelevant
as the situation has been put under the command of one specific
domestic legal system. The conflict between the different
domestic laws has not been affected, it continues, but the partic-
ular situation was harmonized by the decision regarding which
of the conflicting laws will apply. In a legal relationship where
two parties of two different nationalities, or two different domi-
ciles, sign a contract, the legal capacity of each party will be
decided by the law of the nationality, or the domicile of each
J. Dolinger
party. So two laws apply in harmony. Or when the capacity of

the party is ruled by the law of his domicile and the contract is
ruled by the law of the State with which it has the closest con-
nection, we again have harmony. It is as the harmony in concert
music in which each instrument plays according to his score,
forming a harmonious whole.
(3) The third method consists in the uniformization of the conflict
rules of different States by means of private international law
conventions such as the 1928 Bustamante Code, the Hague and
the Inter-American conventions, and the Rome Convention on
the Law Applicable to Contractual Obligations. This I denomi-
nate Uniformized Harmonization, i.e. the uniformization of con-
flict rules, while the substantive rules of the countries that har-
monized their conflicts law remains different and in conflict.
The advantage of international conventions on private interna-
tional law over domestic legislation on conflicts' solutions is
that the former uniformizes the harmonization method, avoiding
conflicts of conflicts rules (conflicts of the second degree) that
bring about such problems as renvoi and characterization.
Josephus Jitta, in his work on the method of private international
law, showed how both - uniformization and harmonization - co-
operate for the same purpose of resolving conflicts of laws2 .
Whether we have Uniformization (1) or Uniformized Harmoniza-
tion (3), parties and courts feel protected by the certainty and pre-
dictability that both provide. When the Restatement of Conflict of
Laws, Second, establishes in Section 6 as one of the choice of law
principles, "certainty, predictability and uniformity of results" the
reference to uniformity of results could be understood as pointing
towards harmonization through uniformized conflict of law
rules 212 .
European scholars have called this principle "harmony of laws",
211. J. Jitta, op. cit., pp. 248 et seq. At p. 253 Jitta says:
"The systems of harmony within dissension and total assimilation (uni-
formization) are not enemy systems, but rather different degrees in the
development of the common conviction of the States regarding a certain
legal institution."
212. See W. Reese, "Choice of Law in Torts... ", p. 37:
"For these reasons, there is need to precise rules of choice of law so that
parties to a multistate contract have a fair basis for predicting what law will
be applied to determine their obligations."
or "unison of decisions", or "minimum of conflicting decisions"12 1 3.

Wengler advises that States should adapt their conflict rules to those
of the other States with which their citizens have frequent relations
in order to guarantee the desired harmony 21 4. Here we have the con-
cept of international uniformization of conflict of laws rules.
This uniformization of the harmonization method has materialized
in the uniform private international law conventions that have been
careful to the point of instructing us regarding even further uniform-
ization: uniform interpretation of uniform rules of conflicts law; this
is expressed in various conventions: (a) the 1980 Rome Convention
on the Law Applicable to Contractual Obligations, Article 18, states
that "in the interpretation and application of the preceding uniform
rules, regard shall be had to their international character and to the
desirability of achieving uniformity in their interpretation and appli-
cation" 215 ; (b) the 1986 Hague Convention on the Law Applicable
to Contracts for the International Sale of Goods, Article 16, sets that
"in the interpretation of the Convention, regard is to be had to its
international character and to the need to promote uniformity in its
application".
I would say that we have here a principle that goes beyond private
international law, that it is a principle of international law latu sensu,
which tells us that conventional rules in general, whether they are
uniform rules on substantive matters, on procedural matters or on
matters of public and/or private international law should always be
interpreted and applied in a uniform manner.
We find the same recommendation of uniform interpretation in the
213. See Wengler, op. cit., p. 365.

214. Ibid., at 366. At 375 the author says:
"The principle of minimum of conflicts means that, even if every state is
entitled to enact unilaterally and independently allocation rules to be fol-
lowed by its own courts, it is wise that each one should have a look at what
other states do, in order to avoid as far as possible that contradictory legal
duties are imposed upon the same person or that other inconsistent deci-
sions are given by the courts of different territories."
215. See Cheshire and North, op. cit., p. 464: "This means that courts should
not define concepts by reference to national systems, but instead give indepen-
dent community meanings to the terms used in the Convention", a reference to
the characterization to be given to the terminology used in the Convention. This
by itself would be a restrictive interpretation of the conventional rule on uniform
interpretation and application, because interpretation matters go much beyond
characterization of terminology. Perhaps this is what the authors mean when
they add that "this provision also has important consequences when it comes to
aids to interpretation, which will now be considered".
274 J. Dolinger
system of Uniformization of substantive rules of law: Article 7 of

the Vienna Uniform Law for International Sales provides that "In the
interpretation of this convention, regard is to be had to its interna-
tional character and to the need to promote uniformity in its applica-
tion and the observance of good faith in international trade" and the
same in the UNIDROIT Principles of International Commercial
Contracts, Article 1.6: "In the interpretation of these principles,
regard is to be had to their international character and to their pur-
poses including the need to promote uniformity in their application."
Uniformity of interpretation is directed mainly to the courts, tell-
ing them to try to come to a decision that will harmonize with a
decision that would be taken by another State's courts, so as to attain
the goal of unison of decisions or international harmony of deci-
sions.

B. Dolinger

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THE CLASSICAL PRINCIPLES

"There are therefore different orders of laws and the sublim-

The classical structure of private international law has been com-

would conflict with the conflict rule of the other jurisdiction

The circumstances that would thus hinder the application of the

Principlesof Negative Nature

The classical principles have a negative function as they control

108. S. C. Symeonides, "Exception Clauses in Conflicts Law - United

First in an English court, then in a French court, renvoi was born

114. B. Ancel and Y. Lequette, op. cit., pp. 52 et seq.

viding that the reference to a foreign law is directed exclusively to

The application of the law indicated by the forum's conflict rules

116. E. Palmer, "The Austrian Codification of Conflicts Law", op. cit.,

The Bartholo case decided in 1889 by the Court of Appeals of

in every legal system and in private international law different legal

122. 7 Wisc. 2d 130, 95 NW 2d 814 (1959).

"Sovereigns will so act by way of comity that rights

125. See E. G. Lorenzen, "Huber's De Conflictu Legum", Selected Articles

power to neutralize conflict of laws' rules, as these are not to be

Sometimes the solution of a legal problem will depend on the

Those are the negative principles of private international law,

Principlesof Positive Nature

This is the oldest of the principles of private international law,

time 13 2. Some authors, however, did not accept the sovereignty of

137. Encyclopddie Dalloz - Ripertoire de droit international,Vol. 1, Paris,

Professor Adolf F. Schnitzer remarked in his course at this Acad-

143. A. F. Schnitzer, "Les contrats internationaux en droit international priv6

applied if it allows the transaction to be carried out, even

In 1991 at its session in Basle, the Institut de droit international

147. D. F Cavers, "Principles of Preference: Excerpts from the Choice-of-

In the United States, the principle of party autonomy to choose

In the nineteenth and early twentieth century nationality was per-

152. See Professor Reese's rationale in this sense as reproduced in R. Cram-

ing abroad155 . In another moment, Jitta informs that many authors

Lex rei sitae and locus regit actum

158. But see W. Wengler, "General Principles of Private International Law",

The statutists held that a sovereign State is entitled to demand that

162. K. Lipstein, op. cit.

time in the evolution of our field, to the principle of sovereignty, the

Private international law gives due consideration to the protection

167. P. Lagarde, "Le principe de proximitd...", p. 50.

stability of the latter. Favor infans,favor matrimonii (and sometimes

be resorted to for these purposes, in accordance with the modifica-

The preoccupation with the validity of legal acts has been an

The conventions that deal with contractual obligations and with

The idea of what is just, fair and reasonable, Ulpiano's three

186. See supra Chapter I, under section "Philosophy/Theology as Introduc-

principle of proximity - when the law resulting from this indication

192. See S. C. Symeonides, "Exception Clauses in Conflicts Law - United

accepted shall apply in order to discharge the requirements of

American Convention on the Law Applicable to International Con-

Each of the principles under the heading of Positive Principles has