Report No. 65
IV. Nature of Rules as to Conflict of Laws
1.19. Nature of rules.-
At this stage, we would like to make certain observations as to the nature of rules as to conflict of laws. These rules are often mistaken to be rules of international law, but, in reality, they do not belong to the domain of the "law of nations",-they do not purport to regulate the conduct of nations inter se. Their subject-matter is "international" only in the sense that they involve relations, acts or events or other questions having a foreign element, or-to put it in different words-involving questions transcending the boundaries of one nation. But they are not administered by international tribunals. They do not draw their content from the traditional sources of international law.
1.20. Rules as to conflict of laws-Nature of.-
Essentially, conflict rules originate in each individual legal system. The expression "conflict" is, of course, merely a convenient simile, indicating two aspects, namely-(i) that the fact or legal relation in question is possibly governed by several legal systems or jurisdictions, and (ii) rules are needed to decide which of these several legal systems or jurisdictions should be applied to the actual case. Because several legal systems co-exist, it becomes necessary to determine their applicability.1 The decision as to which rule should apply has ultimately to be just and fair, as far as possible, to all concerned.
1. See "Current Development in Private International Law" (1964), Vol. 13, American Journal of Comparative Law, p. 542.
1.21. Courts enforcing homologous rights.-
One of the great American judges, Learned Hand, has repeatedly stated, in differing phrases,1 that courts enforce only rights of their own, and never 'foreign' rights.2
Thus, in Guinness v. Miller, (1923) 291 Fed 768 (770) quoted by Cheshire (1975), p. 28 and see Cavers, (1950) 63 Harvard Law Review 822, Judge Learned Hand said-
"When a court takes cognizance of a tort committed elsewhere, it is indeed sometimes said that it enforces the obligation arising under the law where the tort arises However, no court can enforce any law but that of its own sovereign, and, when a suitor comes to a jurisdiction foreign to the place of the tort, he can only invoke an obligation recognised by the sovereign. A foreign sovereign under civilized law imposed an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs."
Lord Parker spoke to much the same effect in an English case3:
"Every legal decision of our courts consists of the application of our own law to the facts of the case as ascertained by appropriate evidence. One of these facts may be the state of some foreign law, but it is not the foreign law but our own law to which effect is given, whether it be by way of judgment for damages, injunction, order declaring rights and liabilities, or otherwise."
1. (a) Guinness v. Miller, (1923) 291 F 769 (770);
(b) James's McGee, (1942) 300 F 93 (96);
(c) Direction der Disconto-Gesellschaft v. U.S. Steel Corp., (1924) 300 F 741 (744).
(d) Scheer v. Rockne Motors Corp., (1934) 68 F (2D) 942 (944).
(e) Siegman v. Meyer, (1938) 100 F (2D) 367.
2. See Earnest Lorenzen, Book Review in (1948) 64 LQR 129 (130).
3. Dynamit Action-Gesellshaft v. Rio Tinto Co., 1918 AC 292 (302).
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