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Dicey & Morris, The Conflict of Laws: A Review

Published online by Cambridge University Press:  17 January 2008

Ole Lando
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Extract

The twelfth edition of Dicey & Morris, The Conflict of Laws (hereafter Dicey & Morris) appeared in 1993 under the general editorship of Dr Lawrence Collins and with Professors Trevor C. Hartley, J. D. McClean and C. G. J. Morse as specialist editors. It has since been updated by a yearly cumulative supplement; the latest is from 1997. The book takes in the whole province of private international law and is rich in material and ideas. It shows how English lawyers have reacted to the outside world without forgetting that the conflict of laws has an international character. Its students consider it to be a noble science. As Arthur Nussbaum said, the student of private international law “feels himself, as it were, a member of an international community of learning. He will have to study foreign legal ideas and will thereby obtain insight into the variety and interplay of heterogeneous legal concepts and ideas all over the world.”

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 47 , Issue 2 , April 1998 , pp. 394 - 408
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. Arthur Nussbaum, Principles of Private International Law (1943), p.vii.Google Scholar

2. Dicey & Morris, p.7.Google Scholar

3. This applies, inter alia, to Rule 19, exceptions 1–11, which reproduce most of the sections of the State Immunity Act 1978, which again implements the European Convention on State Immunity of 1972; to the 20 sub-rules in Rule 27 on jurisdiction, which record the rules in RSC Ord.11; to the rules in chaps.11 and 12, many of which reproduce the Brussels and Lugano Conventions; and to the Rules in chaps.32 and 33, which render the articles of the Rome Convention.

4. See Dicey & Morris, pp.406–408Google Scholar and on Case C–406/92 Tatry [1994] E.C.R. I–5439, the 1997 Supplement, p.60.Google Scholar

5. See Dicey & Morris, p.401.Google Scholar

6. [1990] E.C.R 1–1845.Google Scholar

7. See the Schlosscr Report (1978) O.J. C59/97, No.78 et seq.Google Scholar

8. [1994] I W.L.R. 588 (CA).Google Scholar See Dicey & Morris, 1997 Supplement, pp.401, 422 and 437.Google Scholar

9. [1991] E.C.R. I–3317Google Scholar, ground No.24; see also Gaudement, Tallon, Les Conventions de Bruxelles et de Lugano (2nd edn, 1996), No.291Google Scholar, which seems to regret this result See also Kropholler, , Europäisches Zivilprozessrecht (5th edn, 1996), p.282, comment to Art.21, No.18.Google Scholar

10. Dicey & Morris, p.584.Google Scholar

11. UNIDROIT, Principles of International Commercial Contracts (1994), xx + 256 pp.Google Scholar

12. Lando, and Beale, (Eds), Principles of European Contract Law, Part 1: Performance, Non-performance and Remedies (1995).Google Scholar

13. A preliminary version of the articles of the PECL (which, however, need only final editing) has been made available on the internet by International Trade Monitor (http://.itl.irv.uit.no/trade_law/).

14. In 1989 and again in 1994 the European Parliament passed resolutions requesting a start on the necessary preparatory work on drawing up a European Code of Private Law: see (1989) O.J. C158/401Google Scholar and (1994) O.J. C205/518.Google Scholar In the Preamble to the 1989 Res. it is mentiosed that “unification can be carried out in branches of private law which are highly important for the development of a Single Market, such as contract law”. So far neither the European Commission nor the Council has taken any measures in this direction.

15. See Bonell, , An International Restatement of Contract Law (2nd edn, 1997).Google Scholar

16. Lando, , “The Lex Mercatoria in International Commercial Arbitration” (1985) 34 I.C.L.Q. 747, 748–751.Google ScholarSee also Carbonneau, (Ed.), The Lex Mercatoria and Arbitration (1990). Among the contributors to this work who are adversaries of the lex mercatoria are F. A. Mann, Georges Delaume and Keith Highet and, among the supporters, Berthold Goldman, who was one of the “inventors” of the modern lex mercatoria, and, furthermore, Andras F. Loevenfeld and Friedrich Juenger.Google Scholar

17. See Lando, idem, pp.752–755.

18. See Bernard Audit, “The Vienna Sales Convention and the Lex Mercatoria”, in Carbonneau, op. cit. supra n.16, at p.139.Google Scholar

19. Adopted by the UN Commission on International Trade Law on 21 June 1985, reprinted in Mustill and Boyd, Commercial Arbitration (2nd edn, 1989), p.730.Google Scholar

20. See Pieter, Sanders, “Unity and Diversity in Adoption of the Model Law” (1995) 11 Arbitration Int. 1.Google Scholar The other countries are Bermuda, Bulgaria, Cyprus, Egypt, Mexico, Nigeria, the Russian Federation, Peru, Tunisia and Ukraine. The eight US States are California, Connecticut, Florida, Georgia, North Carolina, Ohio, Oregon and Texas.

21. See Art.1496 of die French Code of Civil Procedure, Art.1054 of the Dutch Code of Civil Procedure and Art.834 of the Italian Code of Civil Procedure.

22. Department of Trade and Industry, Consultative paper on an Arbitration Bill (July 1995), Section 1 and Section 2: Draft Clauses of an Arbitration Bill, p.38.Google Scholar

23. [1990] 1 W.L.R. 153.Google Scholar

24. [1987] 2 All E.R. 769.Google Scholar

25. Dicey & Morris, 1997 Supplement [102].Google Scholar

26. Fraser, Davidson, “The New Arbitration Act—A Model Law?” (1997) J. Business Law 101, 122.Google Scholar

27. E.g. in Deutsche Schachtbau- und Tiefbohrgesellschaft, supra n.24.

28. I omit the cases where the parties to a so–called non-domestic arbitration in England have left open the possibility of the right to appeal to a court on a question of law: see Arbitration Act 1996, ss.69, 87.Google Scholar

29. One should also note the 1992 Cairo Resolution of the International Law Association adopted by its Committee on International Commercial Arbitration at the occasion of the 65 th ILA Conference held in Cairo in Apr. 1992. The Committee recommended that international commercial arbitrators should be permitted to apply transnational rules of law such as general principles of law, principles common to several jurisdictions, international law or usages of trade in two situations: (1) where the parties have agreed that the arbitrator may apply any such transnational rules; or (2) where the parties have remained silent concerning the applicable law. In these two cases the transnational rules may substitute the law of a particular State.

30. See eg. Danish Arbitration Act 1972 and Hjejle, Voldgift (3rd edn, 1987), pp.88 and 130Google Scholar; French Code of Civil Procedure, Arts.1496 and 1502; Italian Code of Civil Procedure, Art.834; Netherlands Arbitration Act (Code of Civil Procedure) 1986, Arts.1054 and 1065Google Scholar; Swedish Arbitration Act 1929, ss.20 and 21Google Scholar (see Arbitration in Sweden, published by the Stockholm Chamber of Commerce (2nd edn, 1984), p.126); Swiss Private International Law Act 1987, Art.190.Google Scholar

31. In 1971 and 19721 took part in a sociological investigation on how arbitrators in Sweden and Denmark conducted themselves. We sent out questionnaires and had interviews with lawyers and with judges, who in Sweden and Denmark could and did act as arbitrators. The answers of the lawyers and judges included how issues on points of law were to be treated. They were published in the report, “Arbitration as Means of Solving Conflicts”, New Social Science Monographs E6 (Copenhagen, 1973) by Britt Man Blegvad, P. O. Bolding and Ole Lando in co-operation with Kirsten Gainst Nielsen. I remember interviews with prominent Danish jurists who told me that as arbitrators they always applied the strict rules of law. Later I had the opportunity of seeing how two of these jurists, one of them a judge and the other a lawyer, handled the merits of a reference which was to be decided by the rules of law. I discovered that they let their sense of equity and not the rules of law dictate their awards, which, in my view, profited from this.Google Scholar

32. [1920] 2 K.B. 287 (CA).Google Scholar

33. Notably Ph. Francescakis, Conflits de lois (principes géneraux), Encyclopédie Dalloz (1968), No.122–146.Google Scholar

34. Dutch Supreme Court 13 May 1966Google Scholar; see (1967) 56 Rev.Crit. de dr.int privé 522.Google Scholar

35. Dicey & Morris, p.1244, fn.32.Google Scholar

36. (1980) O.J. C282/1, 26 (31 Oct.).Google Scholar

37. The House of Lords in Kahler v. Midland Bank [1950] A.C. 36.Google Scholar

38. See Dicey & Morris, p.1245, fn.33 citing other British (and foreign) authors.Google Scholar

39. Reading idem, pp.1243 et seq. I am not quite dear whether this test is to be carried out by the law of the forum or by the law governing the contract. I presume by the latter; see chap.2, Characterization.

40. See idem, p.1243.

41. See idem, p.1247.