Commercial Arbitration -- Enforcement of Foreign Awards

J N AN earlier article an attempt was made to present the problems created by commercial arbitration in its international and interstate aspects, so far as they related to the validity and enforcement of the submission agreement. To complete the survey it will be necessary to consider the award and its enforcement in other countries. As between many continental countries the enforcement of foreign awards is today governed by the Geneva Convention of 1927, or by bilateral treaties containing more favorable conditions for the enforcement of awards. The Geneva Convention is substantially in force also in England, but not in the United States and Latin-America. With respect to these non-contracting countries, the former state of the law is still in force. A general presentation of the subject will require, therefore, a discussion of foreign awards apart from the Geneva Convention, and under the provisions of the Convention. No attempt will be made to deal with the bilateral treaties that have been entered into, and the discussion will be limited to a few European and Latin-American countries whose law is of special interest. Before proceeding to the consideration of foreign awards a few words will be necessary with respect to the validity and enforcement of local awards

DEVELOPMENTS IN THE CONFLICT OF LAWS, 1902-1942

The writer\u27s interest in the conflict of laws coextends substantially with the life of the Michigan Law Review. This may be some excuse for attempting to trace some of the developments in this field in the intervening years. Let us consider first what has happened in this country and thereupon what has occurred in the rest of the world

Renvoi Theory and the Application of Foreign Law: Renvoi in Particular Classes of Cases

It has been intimated that renvoi might be allowed as an exceptional doctrine with respect to the lex domicilii. The theory suggested is that since the adoption of the le.~ domicilii in the Conflict of Laws arose from a desire that the rights governed thereby be subject to one law -an aim impossible of realization after many countries have gone over to the lex patrie-_courts still adhering to the old rule would be justified in interpreting the same in a renvoi sense. This conclusion, however, is inadmissible. Could the question be examined de novo, English and American courts, for example, might hold, in view of their tendency to subject transfers of personal property inter vivos to the lex rei site, that the same rule should govern its distribution upon death. But as long as the lex domicilii is retained as the general principle a substitution of the lex fori for the foreign law upon the sole ground that the foreign country had become a convert to the lex patrie could be supported neither upon principle nor upon grounds of policy. The objections raised against renvoi in general apply with full force to this class of cases

Restatement of the Conflict of Laws

This latest product of the American Law Institute bears the unmistakable imprimatur of the man who has done most in this country to make popular the teaching of the Conflict of Laws. To Professor Beale more than to any other man is due the credit for the place of prominence that the subject of Conflicts now has in the curricula of American law schools. For more than thirty years he and his students, known collectively as the American territorial or pseudo-territorial school , have dominated our academic thought on choice-of-law problems. That this group should have a paramount influence in determining the content of the Restatement was to be expected; and the completed work does very largely reflect their views.Though the fallacies and general insufficiency of the doctrines of the territorial school have already been pointed out by various writers, any adequate evaluation of the Restatement must, because of the origin of the work, begin with an examination of the theoretical foundations upon which Professor Beale and his followers have built

Huber\u27s De Conflictu Legum

Of the vast number of treatises on the Conflict of Laws Huber\u27s De Conflictu Legum Diversarum in Diversis Imperiis is the shortest It covers only five quarto pages; and yet it has had a greater influence upon the development of the Conflict of Laws in England and the United States than any other work. No other foreign work has been so frequently cited. Story himself relied upon Huber more than upon any of the other foreign jurists. Indeed, Laine goes so far as to say that Story\u27s celebrated work on the \u27~Conflict of Laws is in reality nothing but a paraphrase\u27\u27 of Huber. In the estimation of continental jurists, Huber does not occupy such a prominent position. He is considered one of the lesser writers on the subject. Whence comes this difference in the appreciation of Huber? Before this question is answered it will be profitable_ to set forth very briefly Huber\u27s views on the subject of the Conflict of Laws and to compare them with the views of the other leading statutists

Application of Full Faith and Credit Clause to Equitable Decrees for the Conveyance of Foreign Land

The Constitution of the United States provides: Full faith and credit shall be given in such state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be approved, and the effect thereof. In pursuance of the power vested in it, Congress has prescribed the mode of authentication and the effects of such acts, records and proceedings as follows : and the said records and judicial proceedings so authenticated shall have such faith and credit given to them in· every court within the United States as they have by law or usage in the courts of the state from which they are taken. It is a settled rule that the full faith and credit clause applies only to substantive rights and that it has· no application to matters of procedure. Hence, if \u27it can be shown that equitable decrees do not establish obligations, that is, right-duty relations, but are merely methods for the enforcement of existing legal relations,· it follows of course that they are not within the purview of the full-faith and credit clause. The first issue relates therefore to the nature and effect of equitable decrees in general