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

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

Validity and Effects of Contracts in the Conflict of Laws (Part 3)

A question may arise whether there was in legal contemplation a meeting of minds. Suppose that A in New York makes an offer to B in Germany by mail, and that he revokes it by cable after B has received the letter containing the offer. Under the German law A is bound by his offer if it is accepted within the period within which A would under ordinary circumstances expect an answer. If the transmission of a letter between New York and Germany takes two weeks B could accept the offer by cable at any time before the expiration of the two weeks after the receipt of the offer. Under the law of New York A is not bound by his offer and can withdraw it at any time before it is accepted. If B accepts the offer within the period mentioned, has a contract been formed? It has been said that the offeror is deemed present in the state in which his offer has been received, \u27and the conclusion has been drawn that A\u27s duty to keep his offer open should be governed in the above case by German law. Such a deduction involves, however, a process of reasoning that starts from a false premise. If the law of the forum regards the contract as made in the state from which the acceptance is sent, in our case, Germany, the consequences will be the same, of course, as if A had made the offer in person in Germany. But the preliminary question, where the .contract was made, is actually decided by the law of the forum without reference to the German law. If the German law had been consulted the contract would have been made in New York. For the same reason the law of the forum must determine, in accordance with its own views, the preliminary question regarding the binding nature of an offer. There is no more reason why the court should consult German law on this point than there was in determining the situs of the contract. These preliminary questions must in the nature of things be determined by each court in accordance with its own law except perhaps where a contract is concluded between two foreign states or nations whose laws agree on the subject. The other possible alternative, that of requiring compliance with the law of both states under all circumstances, does not commend itself because it restricts too greatly the formation of contracts from an international point of view

Extraterritorial Divorce -- Williams v. North Carolina II

Williams v. North Carolina I simplified the law on interstate divorce by compelling the recognition of foreign divorces it the petitioner was domiciled in the state granting the divorce, and without reference to which of the spouses was at fault.· In doing so, it overruled the doctrine of the Haddock case, according to which the domiciliary state of the respondent, who was not personally before the divorce court, need not recognize the foreign divorce. It also did away with the special doctrine laid down in Atherton v. Atherton, which made the recognition of the foreign decree upon substituted service compulsory if it was rendered by the courts of the last matrimonial domicil, that is, of the state in which the parties last lived together as husband and wife. Williams v. North Carolina I was tried on the assumption that North Carolina had the power under the Haddock doctrine to attack the Nevada decree because the Nevada court had no personal jurisdiction over the respondent. For that reason it did not challenge the finding of the Nevada court that the petitioners had acquired a domicil in Nevada. The Supreme Court of the United States did not find it necessary, therefore, to discuss the subject of domicil as a prerequisite for divorce jurisdiction. The existence of domicil in Nevada became the decisive issue upon review by certiorari, in Williams v North Carolina II, of the judgment of the Supreme Court of North Carolina which convicted the Nevada divorcees of bigamous cohabitation