23
Public international law and the
conflict of laws

The distinctions between the fields of operation and the sources of public international law on the one hand and private international law (or conflict of laws) on the other have already been briefly mentioned. But further discussion is called for, since some doctrinal writers have put forward arguments saying that in some way private international law is regulated by overriding rules of public international law, that there are rules of the latter bearing on the former or that the latter is a source of the former.

A tribunal which exercised jurisdiction in the field of public international law, and whose authority was paramount in the enunciation of the rules of that system, clearly drew the distinctions between the two disciplines. In the Serbian and Brazilian Loans cases (1929)1 the Permanent Court of International Justice2 said with respect to a dispute between France, on behalf of French holders of Serbian state loans, and Yugoslavia, that

[a]ny contract which is not a contract between states in their capacity as subjects of international law is based on the municipal law of some country. The question as to which this law is forms the subject of that branch of law which is at the present day usually described as private international law or the doctrine of the conflict of laws. The rules thereof may be common to several states and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing the relations between states. But apart from this, it has to be considered that these rules form part of municipal law.

Nevertheless, some writers,3 sometimes referred to as 'internationalists', have explored the relationship between the two systems further, in an

____________________
1
France v. Yugoslavia PCIJ Ser. A, no. 20 (1929) at 41. See also France v. Brazil ibid. no. 21. These cases are commonly cited as the Serbian and Brazilian Loans cases. They were (rarely for a decision of the International Court) relied on by the House of Lords in Feist v. Société Intercommunale Belge d'Electricité [1934] AC 161.
2
Forerunner of the present International Court of Justice.
3
These are mainly continental jurists, of which Zitelman and Lévy-Ullman are the best known. Anglo-American support for this view is singularly lacking. 386

-386-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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