Lenhoff, Arthur

English

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Buffalo Law Review Volume 1 Number 1 Article 27 4-1-1951 Internationales Zivilprozessrecht. By Erwin Riezler. Arthur Lenhoff University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Civil Procedure Commons, and the Comparative and Foreign Law Commons Recommended Citation Arthur Lenhoff, Internationales Zivilprozessrecht. By Erwin Riezler., 1 Buff. L. Rev. 84 (1951). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol1/iss1/27 This Book Review is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWIt may also be that the authors abstained from including such analyticmaterial lest they be accused by many law professors (who should knowbetter) and law students (who are unsophisticated victims of "bias-baiters")that they were biased in their selections - either "pro-management" or "pro-labor." Disregarding for the moment the disdain with which such chargegshould be treated, the fact remains that there is enough "pro" and "con"analytic material available so that the authors could have included "both sidesof the story," thereby pleasing (almost) everybody - the law professors, thelaw students, and the publisher (to whom the volume of sales is of more thanpassing importance).But despite this shortcoming in the selection of the institutional material,the volume has the great merit of at least attempting to deal with the mainproblem of labor law training - namely, how to teach both the "purely legal"and the institutional aspects of collective bargaining. And as such it is recom-mended to those faculties that look upon law as a constructive social forcerather than an instrument to be exploited to the fullest for personal gain.Chairman, Department of Industrial RelationsUniversity of Buffalo.Joseph ShisterINTERNATIONALES ZIVILPROZESSRECHT. By Erwin Riezler, professor in Munich.XIII and 710 pages. (Nr. 20 der Beitrdge zum auslindischen und inter-nationalen Privatrecht. Herausgegeben vom Kaiser Wilhelm-Institut ftirauslindisches und internationales Privatrecht. In Gemeinschaft mit Wal-ter de Gruyter & Co., Berlin, Verlag J. C. B. Mohr (Paul Siebeck) Til-bingen (1949).As the author emphasizes in his preface, the book is an "attempt" to pre-sent a comparative discussion of the international procedural law.The author in his modesty speaks of an "attempt," but the book is muchmore. To explain this to American readers means to point out that courses orbooks on private international law on the Continent generally do not extendto jurisdictional and procedural questions whereas here jurisdictional prob-lems constitute an essential part of conflict of laws, and procedural questionsare usually taken up in connection with the subject of "substance" and "pro-cedure." The present volume, therefore, undertakes the discussion of theprocedural side (in the widest possible sense, as the survey of its contentsshows) of Private International Law.The book is divided into twelve chapters. The first deals with introductorymatters such as the concept of international procedural law and its sources,then with treaties, the freedom of parties to bargain on the application of legalrules, and with comprehensive if ever so concise historical outlines, as well as84BOOK REVIEWSwith the problem of characterization and the connections between internationalprocedural law and private international law (in the European sense).In the second chapter the author discusses the problem of nationality andcitizenship as well as that of stateless persons, of domicile and residence andthat of ethnic group membership ("Volkszugeh6rigkeit"). There is nothingin the book which would indicate that the author was taken in by Nazi racialideologies, save for the word "viilkisch" which has an aroma reminiscent ofNazi thought.With the third chapter the author enters the field of jurisdiction. He asksand answers the question as to how far the jurisdiction of a state or countrycan go if the decisions of its courts should be recognized in other jurisdictions.It is in this connection that the author discusses stipulations by which theparties agree upon a certain jurisdiction exclusive of all others. This is a pointin which our courts take a view diametrically opposite to that prevailing inmost of the European countries, including Great Britain and Sweden (since1942).The fourth chapter deals with the status of foreigners in civil proceedingsand the fifth chapter approaches the problem of the influence of a pending pro-cedure in one state upon an action concerning the same issue and the sameparties in another. Questions of evidence are the subject of the sixth chapterwhile the seventh chapter is partly devoted to the problem of proving foreignlaw, a discussion followed up in the eighth chapter entitled "Appellate Reviewon the Question Whether the Application and Interpretation of the ForeignLaw was Correct."The scope of chapter nine is very wide; it considers in detail, in 90 pages,the question of recognition and enforcement of foreign decisions. The readerfinds in various subchapters a special disquisition on the law in Germany,Austria, France, Italy, Great Britain, as well as the treaty law which springsfrom treaties adhered to by Germany.The book proceeds in chapter ten to the subject of arbitration and arbitraldecisions which means the question of tie enforcement of foreign arbitral de-terminations in the forum and includes also a discussion of a foreign compro-mise entered into before arbitrators. The book concludes with chapters elevenand twelve, the former of which deals with execution, arrest and injunctionwhile the latter discusses legal assistance between foreign authorities, includ-ing service of process. An appendix takes up material which the author couldnot use, for the obvious reason of the restrictions under which German scholarshad to labor for so many years. A topical index is added.It is obvious that within the limits of a book review only a very few pointscan be discussed.BUFFALO LAW REVIEWAs so many European legal scholars, Professor Riezler is mistaken as tothe significance and legal nature of the Restatement of the American law (pp.2, 23, 67), for he thinks it is the controlling source of law. Such an opinionmust be rejected, particularly when applied to the Restatement of the Con-flict of Laws.On the subject of the effect of war on treaties involving matters of privateinternational law including international procedural law the author seems tooverlook that in more recent years the view advanced by him that a war ispresumed to terminate a treaty (p. 28) has lost much ground. Judge Cardozoexpounded the new approach in Techt v. Hughes, 229 N. Y. 272 (1920). TheFederal Supreme Court, in Clark v. Allen, 331 U. S. 503 (1947) has extendedit. In this country, the ground was well prepared by earlier American cases,e.g., Society for the Propagation of the Gospel v. Town of New Haven, 8Wheat. 464 (1823). None of these American cases is even mentioned. Simi-larly neglected is the English case of Sutton v. Sutton, I R. & M. 663 (1832).The statement on p. 105 that the "whole field of evidence is by Anglo-American law characterized as procedural," oversimplifies a situation en-trenched in particulars.The substantial departure of the American law from English law (pp. 193)in the question of the domicile of a married woman would have deserved men-tion. On p. 195 the author speaks again of the American Restatement of theLaw of Conflict of Laws as if it were a code containing "rules" on the law ofdomicile. He is not aware of the rejection of its purely conceptualistic domi-cile treatment by most scholars and by the courts, for there is no single conceptof domicile - the basic error of the Restatement - for all purposes. Com-pare Townsend v. Townsend, 176 Misc. 19 (1946) with McGrath v. KristensenU. S. - , 71 S. Ct. 224 (1950).It is rather strange that the author did not become aware thereof for hecorrectly states for the German law (p. 186) that as for questions involvingprivate-law situations the concept of domicile differs from that used for pur-poses of taxation or of settlement. That this is also the view of the Americanlaws (not of the Restatement) can be seen from cases such as Winans v.Winans, 205 Mass. 388 (1910).Speaking of the question of whether the effectiveness of a judgmentabroad might cause the forum to take a relativistic view toward the jurisdic.tional issue, the author mentions only the singular provision of the Germanand Austrian procedural laws concerning jurisdiction over matrimonial mattersinvolving foreigners; for those laws deny jurisdiction in cases where the na-tional law of the parties would refuse recognition to their judgments in matri-monial matters. But those provisions do not reflect in Germany and Austria ageneral principle. The English law, however, has developed a "principle of86BOOK REVIEWSeffectiveness" and this should have been mentioned. See Tallack v. Tallack,"[1927] P. 211 and Goff v. Goff, [1934] P. 107.Conversely, quite a few European procedural statutes have provided forjurisdiction over a foreigner in retaliation. Thus, where the courts in the for-eigner's country have asserted the right of jurisdiction on grounds which arenot recognized as affording a jurisdictional basis in the forum, the forum mayretaliate by exercising jurisdiction against nationals of the offending state onidentical grounds. The author mentions only the new Yugoslavian code (p.205), but the idea originated in the old Austrian Act on Jurisdiction of 1852§ 29. Thence Franz Klein, the greatest creative mind in the field of modemEuropean Procedural Law, took it into the new Austrian Act of 1895, S 101,and thus it has become part and parcel of the law of all countries carved outof the Hapsburg Empire, including Yugoslavia.A problem neglected here, although it comes up, now and then, beforeAmerican fora engaged in international proceedings, is that of abstention ofthe controlling law from claiming jurisdiction over the matter involved in theaction. The law of many a European country, for instance, claims jurisdictionover a foreigner's estate only where the situs of the estate is wholly or partlywithin the country.Such an abstention is not yet a reference to the jurisdiction of the for-of jurisdiction in the forum. It is only an implied declaration of the absenceof jurisdiction in the forum. It takes a positive provision - see p. 209 - ora treaty for an interpretation which could argue for a reference of the matterto a certain foreign jurisdiction. The author may, in the next edition, mentionthe famous case in re Trufort, 36 Ch. D. 600 (1887) in this connection, as fortreaty-law.In his presentation of the subject dealing with foreign judgments, theauthor does not take stock of the American - formerly Anglo-American -peculiarity which requires a new proceeding to enforce a judgment even in asister-state and has not until quite recently adopted registration only for fed-eral judgments inter se. He refers to the British system as it stands since 1935(pp. 519, 535 and 590-594). But even in Great Britain wide areas are stillcovered by the old law only.The volume should be invaluable for a student of comparative legalhistory. In the discussion, for example, on the medieval history of Interna-tional Procedural Law (pp. 61-67) the author supplies a fascinating descriptionof the continental Fremdenarrest (which might be translated as attachimentof a foreign defendant) and of the Sacharrest (attachment of chattels), bothbeing methods to put him before the court. This was the origin of the forumarresti in Europe including Great Britain. Where the foreigner was not presentwithin the urban area [-the methods developed first in the municipal courtsBUFFALO LAW REVIEW(Stadtgerichten) -], the attachment of personal property created simul-taneously the basis for jurisdiction in those courts.Professor Riezler-alas--does not tell the whole story, he overlooks theEnglish part. It may be, therefore, permissible for this reviewer to submit afew supplementary lines. Heretofore, it was believed that foreign attachmentoriginated in the "custom of London," as one may see from the outline in Own-bey v. Mforgan, 256 U. S. 94 (1921). But is this true? First, as a privilegegranted to several cities in medieval times, and, later, at the beginning of theSixteenth Century incorporated in the Coutume of Paris ("Custom of Paris"),Article 173, a right arose for a citizen of the city who had lived there for morethan one year and one day to attach whatever was owned by a non-residentdebtor of his and was held within the city (p. 73). This was called the saisieforaine (foreign attachment).The history of foreign attachment seems to originate in the endeavor tofacilitate the satisfaction of the creditor's claim, an endeavor which probablyfirst in Italy and France, and later in England had struck roots. This reviewerhopes in a not too remote future to complete a more detailed examination ofthis subject.There are a great many other problems presented in the volume which goto the very essence of Conflict of Laws. Only one can be mentioned in pass-ing. In the middle of the Thirteenth Century the glossatores arrived atthe distinction between the lex fori as the law controlling ordinatoria and thelex causae as governing the decisoria litis. The former goes to questions ofprocedure, the latter to the choice-of-law problems. (See pp. 65 66).This is a voluminous, but a breat book. It forms a worthy counterpartof Ernst Rabel's great comparative work on Conflict of Laws. Both mono-graphs are, so far, the most important book contributions to comparative lawin the fields of Private International Law. Dr. Riezler supplies a monu-mental text of the procedural and jurisdictional problems while Dr. Rabel, fullyinvestigates the choice-of-law part of conflict situations. There is no dupli-cation. I emphatically suggest the translation of Riezler's volume into English.Professor of LawUniversity of Buffalo. Arthur LenhoffST. TH4oMAS AND THE WORLD STATE. By Dr. Robert M. Hutchins. Milwaukee:The Marquette University Press. 1949. Pp. 53. $1.50.In the spring of 1949, Robert M. Hutchins was invited to deliver the Four-teenth Aquinas Lecture under the auspices of the Aristotelian Society of Mar-quette University. With his customary informed urbanity, Dr. Hutchinsmerely varied a theme which he had been presenting for many years: the

Internationales Zivilprozessrecht. By Erwin Riezler.

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Internationales Zivilprozessrecht. By Erwin Riezler.

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