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Published online by Cambridge University Press: 25 April 2017
Modern international private law has adopted the hypothesis of the equality of foreign and domestic law. As Savigny says, the judge must apply the law of the place with which the case is connected without considering whether this law is that of his own country or of a foreign country.
Translation of article in Svensk Juristtidning, August, 1944; reproduced by permission.The following abbreviations are used in the footnotes of this article:
NJA—Nytt juridiskt arkiv (Law Reports, Sweden)
RG—Entscheidungen das Reichsgerichts in Zivilsachen (Germany)
SvJT—Svensk juristtidning (Sweden)
TfR—Tidsskrift for rettsvidenskap (Norway)
UfR—Ugeskrift for Retsvaesen (Denmark)
1 Savigny, System des heutigen Römischen Rechts,1849, Vol. VIII, p. 32.
2 Savigny, p. 17.
3 RG,Vol. 69, p. 1 (1908).
4 Lecoulurierv. Rey.Law Reports, (1910) A. C. 262.
5 Lord Macnaghten: “To me it seems perfectly plain that it must be beyond the power of any foreign Court or any foreign legislature to prevent the monks from availing themselves in England of the benefit of the reputation which the liqueurs of their manufacture have acquired here or to extend or communicate the benefit of that reputation to any rival or competitor in the English market. But it is certainly satisfactory to learn from the evidence of experts in French law that the Law of Associations is a penal law—a law of police’ and order—and is not considered to have any extraterritorial effect.”
6 Ufr,1911, p. 724. The verdict of the Maritime and Commercial Court does not seem to have been appealed.
7 In Denmark a new lawsuit was brought in regard to trademarks consisting of words because in the first lawsuit the decision concerned only the right to trademarks consisting of designs.
8 See the special judicial decision concerning 15 Russian emigrants and Kunsthaus Lepke, LandgericmII Berlin, Zeitsckrift fur Ostrecht,1929, p. 1366. See also Hanseatische Rechts-zeitschrift,1924, p. 749.
9 RG,Vol. 129, p. 98 (1930).
10 Clunet, Journal du droit international,1924, p. 133.
11 Clunet, 1925, p. 391 (Tribunal de Commerce de Marseille),1926, p. 667 (Cour d'appel d'Aix)and 1928, p. 674 (Cour de Cassation).
12 Niboyet, Manuel de droit international privé,2nd edition, 1928, p. 565, especially footnote 2.
13 The ordre publicargument will recur in several other cases. See for example, Clunet, 1929, p. 115 and 1931, p. 400. See also Bartin, Principes de droit international prive,I, 1930, p. 60 ff. and III, 1935, p. 247 ff.; also Niboyet, p. 564 ff. and p. 614.
14 Law Reports (1921), 1 K. B. 456.
15 (1921), 3 K. B. 532.
16 Lord Bankes: “I do not see how the Courts could treat this particular decree (nationalization decree in question) otherwise than as the expression by the de factogovernment of acivilized country of a policy which it considered to be in the best interest of that country. It must be quite immaterial for present purposes that the same views are not entertained by the government of this country, are repudiated by the vast majority of its citizens, and are not recognized by our laws.” The same thoughts are expressed by Lord Scrutton: “I do not feel able to come to the conclusion that the legislation of a state recognized by my Sovereign as an independent sovereign state is so contrary to moral principle that the judge ought not to recognize it.”
17 The same argument reappears in the case of Princess Poky Olgav. Weisz(1929), 1 K. B. 718.
18 The Jupiter,1927, p. 250. The case concerned the ship Jupiterwhich belonged to the Ropit Company but which was surrendered by its captain to the representative of the Soviet Government in London. The ship was afterwards sold by the Soviet to an Italian company which was compelled by court action to transfer the ship to the Ropit Company's French agent.
19 NJA,1929, p. 471; 1931, p. 351; 1932, p. 217 and 225; 1938, p. 567.
20 From other Scandinavian countries may be noted following Danish cases: See Vfr,1924, p. 860 and 893. See also Vfr,1925, p. 260 H.
21 See NJA,1941, B 306, 351, 1942, B 160-163, 1943, B 190-193, NJA,1944, p. 264.
22 NJA,1941, p. 424. See also NJA,1942, p. 385.
23 Compare also NJA,1942, p. 382 and 389. Danish cases: Ufb,1939, p. 588 and 919.
24 NJA, 1941, p. 424 IV.
25 An excellent survey of the Anglo-Saxon doctrine of vested rights has been given in Beale, A Treatise on the Conflict of Laws,1935, Vol. 3, p. 1967.
26 See, for example, Cheshire, Private International Law,1938 (2nd edition), p. 431.
27 The Swedish expression offentligrättsliga lagarrefers to law which protects society; as distinct from private law (privaträttsliga lagar)which protects the individual.
28 “Gihl, “The State's Immunity before Foreign Courts,” SvJT,1944, especially p. 256, 268 ff., and 278.
29 Gihl, p. 285. Compare p. 264.
30 NJA,1937, p. 1.
31 NJA,1942, p. 65.
32 Neumeyer, Internationales Verwaltungsrecht,Vol. IV, Allg. Teil,especially pp. 115 and 430.
33 Bagge, “The International Effects of the American Gold Clause Legislation,” TfR,1937, p. 158. See also Bagge's dictain NJA,1937, p. 1, and 1942, p. 389.
34 The question of the application of foreign public law has also been discussed in Sweden by Nial in his recently published book, Internationell förmögenhetsrätt(International Property Rights). In contrast to Bagge, Nial maintains that public laws need not necessarily have a special position. Instead, an investigation should be made for every separate law (or type of law) of whether the general principles of international private law are applicable or whether the special nature of the law makes it necessary to follow other principles in the choice of the law to be applied (p. 115).
35 Compare Foster, La thèorie anglaise du droit international privé, Acadimie de droit international, Recev.il des cows,1938, Vol. III, p. 462.
36 Nial, p. 125.
37 Ufr,1922, p. 473.
38 A símilar case has also arisen in Germany. A Danish bank during the First World War had permitted a French administrator to collect assets which belonged to a German company in France. The case came up in Germany because the Danish bank had assets and the German courts had consequently jurisdiction over the matter in question. The decision was that the bank must repay the money; RG,Vol. 145 (1934), p. 16.
39 NJA,1942, p. 65.
40 Nial, p. 123.
41 See, for instance, Oppenheim, International Law,Vol. II, 1935 (5th ed.), p. 270, and Fauchille, Traite de droit international public,Vol. II, 1921 (8th ed.), p. 69.
42 The Norwegian Government has already passed a series of laws for this purpose; of particular importance is the law entitled Provisorisk anordning om ugyldiheten av rettshandler m.v. som har sammenheng med okkupasjonen(Provisional Act concerning the Invalidity ofLegal Measures, etc., in connection with the Occupation). This law is dated December 18,1942.