46 Int’l
& Comp. L. Q. 437 (1987)
THE PROPER LAW IN THE CONFLICT OF LAWS
F. A. Mann*
I.
INTRODUCTION
John Morris, who died in September 1984, belongs to that
small number
of academics who, like very many members of the judiciary, will live
in
the minds of future generations of lawyers.
The principle of the personality of the judge is, as we
all know, one of
the characteristic features of the English legal system: even if he
does
not become a Lord Chancellor, a judge’s character,
intelligence, originality and authority—indeed his whole personality-speak
through his
judgments. Although nowhere described or defined, these are matters
which one learns to assess and to distinguish, which make up
the vividness and the strength of the English legal system. Similarly, there
are a
few academic teachers who for ever remain alive through their
written
work. As Dicey lived through his Conflict of Laws (among other works)
for about half a century, so Dicey and Morris dominates the field
during
the succeeding period, and John Morris in particular lives also
through
his textbook on the subject (Conflict of Laws), the third edition of
which
appeared not long before his death. It is full of typical “Morrisiana”,
enriched by an illuminating chapter on American doctrines
(or, perhaps, one should say heresies). Together with Dr North he edited a
casebook which not only reproduces important decisions, but
adds trenchant questions and sometimes equally trenchant criticism or
comment
(Cases and Materials on Private International Law).[1]
His obligations as a teacher and his work on Theobald on Wills or the
problem of perpetuities did not leave him much time for monographic
work, but his writings on the conflict of laws reveal one theme
which
recurs between 1940 and 1950 and which it may be useful to
review.
That is the doctrine of the proper law.
The expression “the proper law”; is peculiar to the law of England and
the Commonwealth. It does not seem to be usual in the United States
and it means little, if anything, to
a Continental lawyer, for it makes
[*438] sense only in an uncodified system of law. Taken literally, the
term
simply denotes the appropriate legal system. It says nothing about
the
all-important question how you find that system, how you identify it.
There
is, however, room for the impression that if you ask an English
lawyer for a definition he will go a little further and mention the
legal
system with which the matter in issue is closely or, perhaps, most
closely
connected. John Morris certainly used the phrase in this sense. But
even
so—and here we reach more controversial aspects—we have not
made
much progress, we still talk in generalities. The whole of the conflict
of
laws is concerned with the question: which, in a given situation, is
the
legal system closely or most closely connected with the matter in
issue?
The real problem of the conflict of laws is whether that system can
be
more closely defined, whether we can eliminate
general phrases and find
a specific formula. Frequently we do, and then discontinue
the use of
general terms. Status is governed, not by the proper law or by the
law
indicating the closest connection, but by the law of the domicile.
The
title to property is governed, not by the proper law of the situation, but
by the lex situs. A
corporation is governed, not by the law with which it
is most closely connected, but by that of the country where it was
incorporated. The last example shows the insipid, even dangerous implication of
the test of close connection. Is the connection intended to be
factual or legal? If it were factual a corporation with a centre of management
outside England would be subject to the law of that country. In
other words, English law would be saddled with that
unfortunate
French-German practice which submits a corporation to the law
of the
country where its administrative centre is situate. But England adheres
to the sound doctrine according to which the legal connection is decisive,
that is to say a corporation is governed by the law of the
country
under which it was created.
If, then, the proper law is an imprecise phrase and if synonymity with
a closely or most closely connected law does not convey a more definitive
meaning, the fact remains that in three connections John Morris
propagated its use for the very
purpose of securing flexibility and discrimination. It is not without interest
to investigate how his research in
these three fields should be viewed today.
II.
THE PROPER LAW
OF THE TORT
THE most important and, indeed, most original piece of
work came into
existence while he was Visiting Professor at Harvard University in
1951.
Having previously indicated the idea in England,[2]
Morris published
what became a famous and highly influential article in the Harvard
Law
[438] Review[3] by which, in
his own words, he “invented”[4]
the theory of the
proper law of the tort, although it would probably have been more accurate to
admit to having “discovered” it.
The article was written against the background of the then
prevailing
American view that a tort is governed by the law of the place
where the
wrong was committed, and was primarily designed to attack what Morris
described as the “mechanical last event doctrine”,[5]
i.e. the doctrine
according to which the wrong is committed where the last
event constituting the wrong occurs. His object was to prove the inadequacy of
what
he described as the “single formula”.[6]
He asked the question: “Is it
inherently probable that courts will achieve socially desirable results
if
they apply the same conflict rule to liability for automobile
negligence,
radio defamation, escaping animals, the seduction of women,
economic
conspiracies and conversion?[7]
He gave a negative answer and suggested the substitution of the theory of the
proper law of the tort which,
by a single, subordinate, almost hidden sentence he defined as
“the law
which, on policy grounds, seems to have the most significant
connection
with the chain of acts and consequences in the particular situation
before us”.[8]
He was quite specific in suggesting that “the proper law of
the tort doctrine ... would enable the problems to be broken down
into smaller groups and thus facilitate a more adequate analysis of
the
social factors involved”.[9]
Around the middle of the century this was undoubtedly a
novel and
highly stimulating approach which was rewarded by the rare distinction
of being adopted by the American Law Institute’s
Restatement Second
of the Conflict of Laws in 1971. This provides by section 145 that
“the
rights and liabilities of the parties with respect to an issue in tort
are
determined by the local law of the State which, as to that issue has
the
most significant relationship to the occurrence and the parties”. If one
disregards the very questionable submission
of issue rather than a set of
facts to a variety of legal systems, the real point and, let it be emphasised,
the great attraction of the doctrine becomes apparent in what one
may describe as the
“group cases”. These, indeed, are very
troublesome
cases which Morris himself described by the following example:[10]
An American co-educational school establishes for its
students a summer
vacation camp in the lake and forest country of northern Quebec. The
camp is entirely self-contained and
self-supporting and there is no other
[*439] human being within 50 miles. One
of the girls is seduced by one of the
boys so that she becomes pregnant;
another is bitten by a dog kept in
the camp by another boy.
Neither incident would have happened but for
the negligence of the camp organisers, who are instructors in the
school.
The girls, the boys and the organisers are all residents of State X,
an
American State, where also the school is located. Does it make sense
to
say that the question whether the girls or their parents can sue the
boys or
their parents or the camp organisers in State X “must”
be governed by the
law of Quebec, merely because the incidents happened there? To the
present writer it does not.
Neither does it to the present writer of this article.
Is it, however, really necessary, to reach a satisfactory
result in those
cases, to develop a wholly new theory of the law of torts in the conflict
of
laws? The problem is, of course, a familiar and very real one which in
Britain, it is submitted, has not yet been
satisfactorily solved. It arises,
for instance, when an archaeological expedition puts up its tents
in
remote regions; when a passenger in an English coach travelling
through
France throws a bottle at a fellow passenger; when an English
couple
travels in an English car in France and the driver’s negligence
causes
damage to his companion; when a Scottish ship is in territorial waters
of
the Dominican Republic and one Scottish sailor injures another
Scottish
sailor while on board the ship;[11]
and in many different contexts. One of
them arose during the war in the case of an officer of the Czechoslovak
government then established in London sending an official communication to
another officer of the same government which defamed a
third
one.[12] Neither the
judge nor the Court of Appeal (Scott, Somervell and
Cohen LJJ) was prepared to consider any other legal system governing
the libel than the English one:[13]
Here everything happened in England. Having due regard to
the exceptional position of the Czechoslovak government, we do not think that
the
principle of the comity of nations compels or entitles the courts of
this
country to apply Czechoslovak law to acts done here, in proceedings
in
tort between Czechoslovak citizens, that law giving a general protection
in
civil suits to acts done by officials, which is not afforded under our
law.
This would be to make an inroad on a very fundamental principle. If
there
is to be such an application of foreign law in the circumstances set
out it
would, in our opinion, have to be expressly provided for by
legislation.
Whether the case of a foreign government established in
England is
not a very special one is far from certain.[14]
One would hope that ulti-
[*441]-mately the “group cases” or the cases
described by Lord Diplock as creating a “special
relationship”[15]
between plaintiff and defendant will be
held to require a departure from a purely territorial test and the adoption of
the lex
loci delicti
in the sense of association rather than territoriality.
Boys v. Chaplin[16]
was not such a case and did not have the specific
features which gave rise to Morris’;s doctrine of the proper law of the
tort. The fact that both the plaintiff and the defendant motorcyclist
were
English and members of the armed forces stationed in Malta was,
in
relation to the accident, purely fortuitous. According to Lord Wilberforce,[17]
it is true, the issue was:
whether a
British subject, resident in the United Kingdom, should be prevented from
recovering, in accordance with English law, against another
British subject, similarly situated, damages for pain and suffering
which
he cannot recover under the rule of the lex delicti.
Doubtless this was a description of the issue
which was not incorrect.
But was it not slanted? Did it matter that
the parties were British and
resident in the United Kingdom? The opportunity to knock the
plaintiff
down in the streets of Malta did not accrue to the defendant because
the
parties were British subjects resident in the United Kingdom or
because
they were both serving the British Army. Do English tourists in
Malta
carry English law with them, so that if one of them knocks down
a
pedestrian who turns out to be British, he is liable according to
English
law? Does it make any difference that they both stay in the same
hotel?
Affirmative answers are likely to strike most observers as extravagant.
The other advantages claimed for the theory of the proper
law of the
tort can be dealt with more shortly. Morris suggested that it would displace
“the mechanical last event doctrine”.
But this is or perhaps was a
purely American doctrine. Many other legal systems have proved that
other, entirely satisfactory solutions are available. Finally, there is
the
suggestion that the doctrine of the proper law “would enable
the problems to be broken down into smaller groups and thus facilitate a
more
adequate analysis of the social factors involved”[18]
Whether this would
be an advantage, whether the complications, the expense and the loss
of
time would not be excessive, are matters which can be judged only in
the light of far-reaching comparative experience; at present they
must
give rise to much doubt.
This leaves the general problem of the law that does or
should govern
tortious liability. It is a problem which would render it necessary to
[*442] embark
upon a detailed analysis of Boys v.
Chaplin.[19] Since its
legal
effect is in every possible respect disputed, this would be an
unprofitable
task. One can only hope that some day the House of Lords (not
the
legislature), possibly invoking the Practice Statement of 1966,[20]
will
have the opportunity to create the certainty which is so badly needed
and which five sufficiently independent minds, intelligently
instructed
and broadened by vision, imagination and foresight, ought to be
able to
bring about. Few other countries have failed to do so.
John Morris’s discussion of the decision both in
Dicey and Morris (for
which Sir Otto Kahn-Freund was mainly and originally responsible) and
in his textbook
will, on that occasion, be of great value and provide
much guidance, but an old and old-fashioned observer cannot but hope
that Morris’s
progressive law lords of the future will put aside all the ballast of the last
100 years or so, have the courage of their unprejudiced
and unburdened views and revert to the lex loci delicti,
for in principle it
is impossible to understand why an act committed in the locus delicti
should not give rise to an action (with all its incidents) here, or why
an
action here should lie although the locus
delicti does not support it. In
1848 a German lawyer, then of no great renown, gave a lecture to
the
Berlin Lawyers’ Society on “The uselessness of law as
a body of doctrine”. His address became
famous because it included the statement:[21]
Doctrine,
because it is concerned with the fortuitous, becomes fortuity
itself; three rectifying words of the legislator and whole libraries
become
waste paper.
We await the legislative vision of five law lords of the future.
The waste-paper basket is ready.
Another context in which John Morris has suggested resort to the
proper law is that of the validity of a transfer in one State of chattels
situate in another, a situation which, of course,
comprises the vexed problem of the res in
transitu. Here Morris put forward in 1945
the
suggestion that the question whether a transfer passes a good title is
“governed by the proper law of the transfer, that is, by the system of
law
with which the transfer has the closest and most real connection”, such
law being presumed to be, but not necessarily being the lex situs of
the
[*443] goods.[22]
The point here is that there are, allegedly and perhaps in fact, cases in which
the application of the lex situs is
either impossible,
because it is not known, or inappropriate, because another system of
law has a stronger claim. Morris has given examples taken from
the
practice of American and Canadian courts. It is by no means
certain
whether it is useful to give detailed attention to the facts of
these cases
and the reasoning behind the decisions, for the problem should be seen
as one of principle. If one disregards problems arising as
between
immediate parties to a transaction (as one may and must, because
the
contractual terms and consequences may have overriding effect), it
is
always a third party which is the contender and
claims title. As against
such a party the lex situs must prevail.
There is hardly any English law on the critical case in
which the situs changes, so that it is necessary, as Morris did, to look at foreign cases such
as a decision of the New York Court of Appeals of 1927.[23]
A, a
Californian corporation, sells in California a motor
car to another Californian and retains title pending payment of the
price. In breach of contract the purchaser takes the car to New York and sells
it to C, a bona
fide purchaser. By Californian law A’s title
prevailed against all the
world. By New York law
it also prevailed, because the Court of Appeals
held that its statute requiring registration of the retention of title did
not
apply to an owner who had no knowledge of the removal to New York.
It seems, therefore, that the lex situs, i.e.
New York law, did not claim
overriding effect. If this is so one can only
agree that Californian law
had to prevail, but must add that the case does not justify any
departure
from principle.
Finally, one comes to that branch of the conflict of laws where the term
“the proper law”; is most generally
known and is given the widest and
most significant scope, i.e. the law of contract. It is in this context that
in
the early part of the century Westlake defined it as “the law
of the
[*444] country with which the contract has its most real connection”. [24]
John
Morris, probably under the influence of Cheshire, embraced and
adopted this formula since 1940, when together with Cheshire he published his
first or one of his first essays, an article entitled “The
Proper
Law of the Contract”[25]
and devoted mainly to a criticism of Vita
Food
Products Inc. v. Unus Shipping Co. Ltd,[26]
a decision rendered by Lord
Wright on behalf of a Judicial Committee including Lords
Atkin, Russell of Killowen,
Macmillan and Porter. Ten years later Morris reverted
to the subject in an article in the International Law Quarterly[27]
in reply
to a defence of the subjective approach which
had been attempted in the
same journal.[28]
As a matter of terminology—it is by no means certain
whether much
more than that is involved—the problem has had a chequered
history.
By 1950 it was firmly established in England by decisions of the House
of Lords[29]
as well as on the Continent, particularly in France, Germany
and Switzerland, and in numerous other countries, that
an express
choice of law by parties was valid and conclusive.[30]
The same applied to
an implied choice, frequently effected
through a jurisdiction or arbitration clause. The problem was whether in the
absence of an express or
implied choice the presumed intention of the
parties had to be ascertained by construing the contract, i.e. by objective
means as opposed to
evidence about the subjective intentions of the parties,[31]
or whether it
was for the court to ascertain the country with which the contract was
most
closely connected. It is safe to say that the practice had followed
the former course, but in 1949 Lord Denning, admittedly influenced
by
Cheshire, suddenly said:[32]
the question
whether the contract to repay is valid … depends on the
[*445] proper law
of the contract, and that depends not so much on the place
where it was made or on the intention of the parties as on the place
with
which it has the most substantial connection.
Curiously enough, in 1951 Viscount Simonds,
delivering the advice of
the Privy Council,[33]
accepted this formulation. The point became even
more confused when, in 1961, Lord Denning, then in the House of
Lords, introduced a fresh limitation in that he seemed to exclude
the
impliedly intended choice altogether, for he said[34]
that “in the absence
of an express clause … the test is
simply with what country has the
transaction the closest and most real connection”. There thus appeared
to be a doubtless involuntary gap in the formulation of the principle
which was filled after another interval of ten years by Lord
Morris of
Borth-y-Gest,[35]
when he reinstated the implied choice as the second
step. Ultimately it was Lord Diplock who elegantly solved the terminological problem by
restating the predominant power of the parties'
intention and by asserting
that there was “no conflict” between what
Lord Atkin had said in 1937 and Lord Simonds’s
“pithy definition” in
1951.[36]
It is now quite clear that John Morris’s distinction[37]
between express
selection, alternatively implied selection, alternatively
the closest and
most real connection, is correct if, as he himself says,[38]
the last-mentioned solution means that in the words of Lord Wright:[39]
the court has to
impute an intention or to determine for the parties what is
the proper law which, as just and reasonable persons, they ought to
or
would have intended if they had thought about the question when they
made the contract.
Thus,
the closest and most real connection is relegated to a wholly inferior or subsidiary
role.
As a result we now have in England an all-embracing
subjective formula which, broadly, covers almost all
questions arising in the life of a
contract. We must not, however, be misled into thinking that
the
acceptance of a form of words solves all problems. There remain
some
important aspects of the proper law doctrine of which mere
verbalism
cannot take care.
[*446]
A. The
Extent of the Freedom of Choice
This question troubled John Morris for some 35 years,
because he was
thinking of it in terms of the prevention of evasion. It was
this fear that
prompted Cheshire and him in 1940 to suggest that in every case you
first have to ascertain the law having the closest connection with the
contract and that, if this differs from the law chosen by the parties, the
latter
must give way, inter alia, if the contract includes “stipulations
which
could not have been incorporated under the proper law”, i.e. the law
having the closest connection.[40]
Even in 1984 Morris emphasised[41]
the “need to prevent the parties from evading the mandatory provisions
of
the law with which the contract is objectively most closely connected”.
It must, however, be said that English law has, fortunately, never developed a
theory of evasion, of fraude à la loi, and
that in the private international law of contracts it would find a singularly
uncongenial place.
The starting point which needs emphasis
is that the proper law doctrine presupposes an international contract; were
this not so no conflict
of laws would arise. At least one party to an
international contract is
unlikely to be subject to the mandatory provisions in issue, so that
it
would be wrong to penalise that party for something entirely alien to
it.
The other party cannot be said to evade its own law if it accepts the
first
party’;s law which has an equal
right to govern. The same must apply
where the international character of the contract is less obvious,
where
it is merely commercial and therefore obscured. This applies to
Lord
Diplock’s example of contracts concluded on a commodity
exchange,[42]
or to Martin Wolff's[43] even more
significant example of a contract
between an importer and a local trader which is submitted to the
foreign
exporter’s law to which the importer had agreed and which
he imposes
on his buyer to be able to pass on claims, or to the contract of employment
between an Englishman and the wholly owned English subsidiary
of an American company, which is submitted to the law of the latter's
home State.
We all know that half a century ago Lord Wright introduced
the requirement that the choice had to be “bona fide and legal”[44]
(and, of
course, consistent with public policy—a condition which is so
obvious
that it will not be mentioned again). Much has been written about the
meaning
of those four words and numerous other tests were from time
to time suggested.[45]
Is it not obvious what Lord Wright meant? Did he
[*447] mean anything other than the truism that there must be some reasonable
basis for the choice, that it must not be arbitrary, capricious, eccentric or
fanciful? Is it not almost decisive that during a period of some 200
years English practice or, indeed, the practice of any country has
failed
to produce a single case in which the choice was held not to be
“bona
fide and legal”? In this
context we must remember that there are cases
in which the parties have chosen a law which has nothing to do with
them or their contract, but is none the less supported by good
reasons.
The Japanese salvage contractor who saves a Panamanian ship in
the
Pacific may conclude with the shipowner a
Lloyd’s form of salvage
agreement governed by English law and arbitration.[46]
Is this unreasonable? The English civil engineers who undertake with a
Brazilian company to supervise the erection of a bridge in Brazil may agree to
the submission of the contract to Swiss law—for good and
justifiable
reasons. Would anyone describe such a choice as being made in bad
faith and illegally?
In short, the freedom of choice exists within the limits
imposed upon
every freedom, that is to say within
the limits of reason.
B. Choice
of a Specific System
What must be chosen is the law of a specific country or a
system of law, there being no difference between the two terms[47]
(except that the latter includes public international law which for certain
types of contract,
excluded from the present discussion, may be agreed as the proper
law).[48] This is so
for the reason happily stated by Lord Diplock:[49]
the purpose of
entering into a contract being to create legal rights and
obligations between the parties to it, interpretation of the
contract
involves determining what are the legal rights and obligations to which
the
words used in it give rise. This is not possible except by reference to the
system of law by
which the legal consequences that follow from the use of
those words is to be ascertained.
In short, in our society of sovereign States it is a
system of law created
by a State to which a contract necessarily owes its existence and by
which it continues
to be governed. To allow anyone, even parties to an
international contract, to regulate their affairs outside any law, to permit
what Scrutton LJ[50]
called an “Alsatia in England where the King's
writ does not run”, or indeed to recognise even a respectable
com-[*448]-munity as capable of practising its own, uncontrolled standards
of
behaviour would be highly undesirable, because it would lead to privileges and
immunities which our society rejects and which are liable to
constitute a great
social danger.
This means, in particular, that choice (as distinct from
incorporation)[51] of law
cannot extend to rules which are no longer in force,[52]
such as Roman or Czarist Russian law, neither can we recognise the so-called
lex mercatoria.
Nobody really knows what lex
this expression is
intended to indicate, and it may be that it means nothing more than
the
right to decide ex
aequo et bono, as amiable
compositeur—a right which
in England may be exercised by arbitrators in the rare cases in which
an
exclusion agreement[53]
is permissible and has been concluded. But whatever that misleading and
dangerous expression may mean, it is clear that
it cannot supersede an express or implied choice of law, neither
does
anyone suggest that there is any room for the so-called lex mercatoria
in
judicial proceedings—a situation which a priori creates a dichotomy
between them and arbitration which ought not to be accepted. It is
“the
application of the so-called lex mercatoria in international
commercial
arbitration” that is in issue, and “international
arbitration” seems to
mean “stateless arbitration”, if such a thing exists (which should be denied).[54]
The whole subject has recently been discussed by Professor
Lando of the Copenhagen School of Economics and Business
Administration. [55]
He appears to create the firm impression that in a
civilised society there
should be no room for the uncertainty, lawlessness, injustice and
arbitrariness which in the alleged interest of international business an
arbitrator is asked to practise; it is indeed suggested that “sometimes
he
must invent a new solution and thus act as a social engineer”. [56]
Like
most of us John Morris would have been pained by such words, which
he would rightly have regarded as a fallacy.
C. The
Effect of a Choice of the Proper Law
The principle is not in doubt. The contract becomes
embedded in or, if the phrase be permitted, is naturalised by the agreed proper
law, so
that, for better or worse, its existence and its future are determined
by
this legal system and none other. Thus, the law of the country where the
[*449] parties or one of them resides[57]
is as irrelevant as their nationality. The
control of the proper law means, in particular, that its mandatory
rules,
whether existing at the time of the conclusion of the contract or
during
its life, apply and may override terms of the contract, as the practice
of
numerous countries relating to the American abrogation of gold clauses
in 1933 conclusively established.[58]
This is why so-called stabilisation
clauses which attempt to refer to the proper law as existing at a
given
moment are without value: if the proper law overrides them, courts
are
bound by the new development; if the contract is not governed by the
law setting
the clause aside the contract is necessarily immune against
the new legislation. It is, however, necessary to say a few words
about
two possible exceptions to the rule.
The first arises from the fact that ever since 1920, when
Ralli[59]
was decided, it has been said that the proper law is displaced in so far as the
performance of the contract is unlawful by the law of the place of performance.
It is likely that judges who have used this phrase did not really
intend to lay down a rule of the conflict of laws, but a rule of
the English
law of impossibility. Imprecise formulation may be explained by the
lack of awareness of the contrast: it is obvious that the existence
of
illegality at the place of performance must be judged by the law
there
prevailing, but the effect on the contract and on the rights and
liabilities
of the parties is a different matter governed by the proper law. If
and
when a case arises in which the distinction becomes material, the
courts
may be expected to follow the course which Morris described as
having
been “convincingly”; demonstrated.[60]
The existence of mandatory rules at the place where the
contract was concluded causes much greater difficulty. If the proper law is
that of another country they are in principle irrelevant.[61]
Nearly one hundred years ago the Court of Appeal consisting of Lord Halsbury LC, Cotton and Fry LJJ so decided.[62]
A bill of lading was issued at Boston, Mass.,
in respect of goods shipped on a British ship for carriage to England.
The bill was held to be governed by English law. Under US law
an
exemption clause included in the bill was contrary to public policy.
Yet
it was upheld in England. If the facts are the
same except that the ship
is, say, Dutch, a Dutch (or English) court would again disregard
the
American legislation in force at Boston. This follows from Vita
Food
Products Inc. v. Unus Shipping Co.,[63]
the facts of which have been
[*450] changed in immaterial respects so as to bring them into line with
the
earlier case. But now comes the question how an English court decides
if a bill of lading issued in England in respect of carriage on a Dutch
ship
to Holland and expressly made subject to Dutch law fails to comply with
a mandatory provision of English law.[64]
It cannot be doubted that in the
circumstances the application of Dutch law
is valid and effective and, as
the Federal Supreme Court of Germany[65]
had occasion to affirm, is in
line with general practice and numerous forms of bills of lading. Yet
the
House of Lords allowed English legislation to prevail. John Morris
would
think it obdurate if criticism of the decision were renewed[66]
and
nothing more will, therefore, be said about
the reasoning in the speech
by Lord Diplock with
which, in the manner now almost usual, Lords
Keith of Kinkel Roskill, Brandon and Brightman
merely agreed.
There is, however, a further point which
owes its existence to John
Morris and should therefore be mentioned. He starts from the
sound
principle that “as a general rule a statute does not
normally apply to a
contract unless it forms part of the proper law”
and this is true “whether
the statute forms part of English or (unless the statute is procedural)
of
foreign law”.[67]
He then says with equal justification that “an English
statute may be applicable even if English law is
not the proper law” and
in such a case (which depends on construction) the statute
“is what is
sometimes called an overriding statute”.[68]
In Dicey Morris gave as
examples of overriding statutes those dealing with the law of
international transport: “They all express the public policy
which is inherent
in the unification of international transport law.” The proper law of the
contract, therefore, is said to be
“generally irrelevant in the law of inter-
national transport, where
the matter is regulated by an international
convention”.[69]
Morris’;s reference to
overriding statutes intends to express the positive effect of public policy the
existence of which was already explained
by Savigny:
English law supplants the foreign law normally applicable.
What in his view makes them overriding is, not that they are
concerned
with international transport, but that they implement uniform
international legislation. However, the general test of public policy cannot
be ignored. Is it
really required by the English court’s sense of justice
and morality or by the fundamental policy of English law that a trans-[*451]-port or, indeed, any other convention should
apply and should do so as
understood in England? The question whether and
to what extent the
convention can be excluded, can
be answered in general terms. Moreover, so-called uniform legislation is liable rapidly to become divers
in
that different countries interpret it differently. Does it really make
sense
that, when an English court is concerned with a transport by road
from
Stockholm to Rome, it should apply the convention scheduled to
the
Carriage of Goods by Road Act 1965 as interpreted in England,
although the contract between the parties is governed by Swedish
law
which has attributed to the provision in issue a definite meaning? It
is
difficult to believe that there exists any English public policy requiring
a
singularly unattractive result.[70]
CONCLUSION
The explanation for the somewhat technical nature of this discussion
is
to be found in John Morris’;s character
and that of his work. He was a
lawyer in the strict sense. His efforts were devoted to training his
pupils
to whom he dedicated his textbook, and to giving the guidance practitioners
expected of him. He was not given to general discourses or
obscure waffling. His law aimed at and is marked by precision and clarity,
simplicity and intellectual integrity.
A subject such as the doctrine of the proper law cannot be
presented
without taking a position. The consequence is that it has been
necessary
occasionally to disagree with John Morris’;s views. This is almost inevitable when one lawyer talks
about another lawyer’;s work. In the
present
case there is, however, a consolation and an excuse. John Morris
would
not have complained. He was too wise, too detached, too much of a
true
academic to expect blind acceptance. He enjoyed argument. He did not
frown upon controversy. He would even have forgiven the shortcomings
and the errors in this
modest survey of a small part of a most learned
man’;s work.
PUBLISHED WORKS OF DR. J. H. C. MORRIS
Books
Dicey and Morris, Conflict of Laws (Sweet and Maxwell 10th ed. 1984)
Cases on
Private International Law (Clarendon
Press, 4th ed. 1968)
[*452]
Cases
and Materials on Private International Law (with Dr. P. M.
North) (Butterworths,
1984)
The
Conflict of Laws (Stevens & Sons, 3rd ed.
1984)
The Rule
Against Perpetuities (with W. Barton
Leach) (Stevens & Sons, 1956)
Articles
“The Law of the Domicile”
(1937) 18 B.Y.I.L. 32
“Annulling Marriages, Domicile
and Annulment” (1937) 53 L.Q.R. 315
“Capacity to Make a Marriage
Settlement Contract in English Private
International Law” (1938)
54 L.Q.R. 78
“Meaning of Money” (1939)
55 L.Q.R. 540
“The Proper Law of Contract in
the Conflict of Laws” (with G. C. Chehire) (1940) 56 L.Q.R. 320
“Will Cases” (with R.
E. Megarry) The Conveyancer
(1943-46)
“Nullity Jurisdiction and Remarriage
During Voidable Marriage” (1945) 61 L.Q.R. 341
“The Transfer of Chattels in the
Conflict of Laws” (1945) 22 B.Y.I.L.
232
“Classification in the Conflict
of Laws” (1945) 61 L.Q.R. 340
“Recognition of Divorces Granted
Outside the Domicile (1946) 24
C.B.R. 73
“Community Property—Doctrine
of Election” (1946) 24 C.B.R. 528
“To A
and His Issue: The Law of Property Act 1925, section 130” (1946) 9
C.L.J. 185
“The Choice of Law Clause in
Statutes” (1946) 62 L.Q.R. 170
“Renvoi” (1948) 64
L.Q.R. 264
“Torts in the Conflict of Laws”
(1949) 12 M.L.R. 248
“Rule Against Perpetuities and
Age of Marriage” (1949) 13 Conveyancer and
Property Lawyer, 289
“Proper Law of the Contract: A
Reply” (1950) I.L.Q. 197
“Ulterior Limitations and
the Rule Against Perpetuities” (1950) 10
C.L.J. 392
“Divisible Divorce”
(1951) 64 Harv.L.R. 1287
“The Proper Law of a Tort”
(1951) 64 Harv.L.R. 881
“The Recognition of
American Divorces in England” (1952) 29
B.Y.I.L. 283
“The Recognition of
Polygamous Marriages in English Law” (1953) 66
Harv.L.R. 961
“Eclipse of the
Lex Loci Solutionis—a fallacy
exploded” (1952-53) 6
Vand.L.R. 505
[*453]
“Options to Purchase and the
Rule Against Perpetuities (1954) 18 Conveyancer and
Property Lawyer, 576
“Falconbrige’s Contribution
to the Conflict of Laws” (1957) 35 C.B.R. 610
“Recognition of Foreign Divorces
in England” (1957) 22 Nev. S.B.J. 120
Fourth Report of the Private International
Law Committee (Formal Validity of Wills) (1959) 22 M.L.R. 65
“Australian Matrimonial Causes
Act 1959” (1962) 11 I.C.L.Q. 641
“Wills Act 1963” (1964)
13 I.C.L.Q. 684
“Time Factor in the Conflict of
Laws” (1966) 15 I.C.L.Q. 422
“Intestate Succession to Land in
the Conflict of Laws” (1969) 85 L.Q.R. 339
“De Reneville
Revisited” (1970) 19 I.C.L.Q. 424
“Recognition of American
Divorces in England” (1975) 24 I.C.L.Q.
635
“English Judgments in Foreign
Currency—a ‘procedural’ revolution” (1977)
41 Law and Contemporary Problems, 44
“The Scope of the
Carriage of Goods by Sea Act 1971” (1979) 95
L.Q.R. 59
*
This article is based upon a lecture given at
the British Institute of International and
Comparative Law in memory of John Morris on 2 December 1986.
[1]
Dicey and Morris, The Conflict of Laws (6th
ed., 1949, 7th ed., 1958, 8th ed., 1967,
9th
ed., 1973, 10th ed., 1980). John Morris was General Editor of the 6th
to 10th editions
and co-author of the 8th to 10th
editions. Morris, The
Conflict of Laws (1st ed., 1971, 2nd ed., 1980, 3rd
ed., 1984). Morris and North, Cases
and Materials on Private International
Law 1984 [John Morris also
published Cases on Private International
Law (1st ed., 1939,
2nd ed., 1951, 3rd
ed., 1960,4th ed., 1968).
[2]
(1949) 12 M.L.R. 248.
[3]
(1951) 64 Harv.L.R. 881.
[4]
Morris, op. cit. supra n. 1, at p.313.
[5]
Idem, p.889
and passim.
[6]
Idem, p.892.
[7] Idem, p.884.
[8]
Idem, p.888.
[9]
Idem, p.892.
[10]
Idem, p. 885.
[11]
MacKinnon v. Iberia Shipping Co.
1955 S.C. 20.
[12]
Szalatny-Stach v. Fink [1947] KB. 1, affirming Henn
Collins J [19561 1 All ER.
303.
[13]
[1947] K.B. 1, 12.
[14]
See Mann, (1945) 9 M.L.R. 179, 1, 44, where
the unqualified suggestion “that a
British subject when he goes abroad carries with him as an extraterritorial
aura the English
law of tort” is rejected as a “retrograde
step in the latter half of the 20th century”.
[15]
Boys v. Chaplin [1968]
2 Q.B. 1, 44.
[16]
[1971] A.C. 356.
[17]
Idem, p.392.
[18]
Morris, op. cit. supra n. 1, at p. 892.
[19]
Supra n. 16.
[20]
Practice Statement (Judicial
Precedent) [1966] 1 W.L.R. 1234.
[21]
Kirchmann, “Die Werthlosigkeit
der Jurisprudenz
als Wissenschaft” (Berlin,
1848), P.23. It is only proper to draw attention to the illuminating Working
Paper No.87 of
the Law Commission which initiates
discussion about the reform of the private international law on torts.
[22]
(1945) B.Y.I.L. 232, 238,
247, and see Morris, op. cit. supra
n. 1, at p.354.
[23]
It is now quite clear in New York that the lex silos in the sense of the last silos prevails: Scoles and Hay, Conflict
of Laws (1982), p.739. Morris’s argument is founded upon
a New York case which he describes
in (1945) 8 Y.I.L. 242 as “one of the clearest and
most striking illustrations”
of the type of case he is discussing: Goetschius v.
Brightman
(1927) 245 N.Y. 186, 156 N.E. 660. Having eliminated the applicability of the
New York
statute, the court continued as follows: “At common law
in this State, as in California, the
title of a seller under a contract of conditional sale could be enforced
against all the
world … At least until the owner is in a position where he could protect his
rights by filing, the validity of the conditions and reservations in the
contract of sale, recognised by
the common law of California, which is also in effect in this State, except as
modified by
statute, is not altered by the statutory provisions. That is
the only question we need now decide.” In
other words, the court disregarded New York statute law and applied the common
law of New York which happened to be the same as Californian law. By both laws
the
retention of title by the Californian owner was effective against all the world. The case
does not support Morris’ theory.
[24]
Private International Law (7th
ed., 1925), s.212.
[25]
(1940) 56 L.Q.R. 320.
[26]
[1939] A.C. 277.
[27]
(1950) 3 I.L.Q. 197.
[28]
Idem, pp. 60
and 597.
[29]
See in particular the statement by Lord Atkin in R. v.
International Trustee for the Protection of Bondholders [1937] A.C. 500,
529: “The legal principles which are to guide
an English court on the question of the proper law of a contract are now well
settled. It is
the law which the parties intended
to apply. Their intention will be ascertained by the
intention expressed in the contract if any, which will be conclusive ...
[30]
For a comparative survey in 1962 see Mann,
(1962) Juristenzeitung 6.
[31]
In the Vita
case supra n.26 Lord Wright stated
expressly (at 290): “That intention is
objectively ascertained.” This is, of course, in harmony with general
English principles
relating to the construction of documents.
[32]
Boissevain v. Weil [194911
K.B. 482, 490,491.
[33]
Bonython v. Commonwealth of Australia [1951] A.C. 201, 219.
[34]
In re
United Railways of Havana & Regla Warehouses Ltd [19611 A.C. 1007, 1068;
similarly Lord Morris of Borth-y-Gest at 1081.
[35]
Compagnie d'Armement Maritime
S.A. v. Compagnie Tunisienne
de Navigation
S.A. [1971] A.C. 572, 587.
[36]
Amin Rashee Corporation
v. Kuwait Insurance [1984] 1 A.C. 50, 61.
[37]
Morris, op.
cit. supra n. 1, at pp. 270 et seq.
[38]
Idem, p. 276.
[39]
Mount Albert Borough Council v. Australasian etc. Assurance Society Ltd. [1938]
A.C. 224, 240.
[40]
Morris, op. cit. supra n.25, at p.338.
[41]
Morris, op. cit. supra n. 1, at p.273.
[42]
See the Amin Rashee case supra n.36, at 69.
[43]
Private International Law (2nd ed., 1950), p.420.
[44]
See the Vita
case supra n.26, at 290.
[45]
See, e.g.,
the articles mentioned supra nn. 27 and 28.
[46]
See the facts in The Teh Hu
[1970) P. 106.
[47]
Whitworth Street Estates Ltd v. James Miller
and Partners Ltd [1970) A.C. 583,
604
per Lord Reid, 606 per Lord Hodson.
[48]
For references see Dicey and Morris, Conflict of Laws (10th ed., 1980), p.767
n.27.
[49]
Amin Rashee case supra
n.36, at 60
[50]
Czarnikow v. Roth Schmidt & Co. [1922] 2 K.B. 478, 488.
[51]
Dicey and Morris, op. cit. supra n. 48, at p.758.
[52]
Wolff, op. cit. supra n.43, at p.417.
[53]
Arbitration Act 1979, s.3.
[54]
Lando, “The Lex Mercatoria in International Commercial Arbitration”
(1985) 34
I.C.L.Q. 747,
764.
[55]
Ibid.
[56]
Idem, p.752.
[57]
Kleinwort
Sons & Co. v. Ungarische Baumwolle
Industrie A. G.
[1939] 2 K.B. 678;
Toprak Mahsulleri Ofisi v. Finagrain Compagnie Commerciale [1979] 2
Lloyd’s Rep. 98.
[58]
For references see Mann, The Legal Aspect of Money (4th ed., 1982), p.294.
[59]
[1920] 2 K.B. 287.
[60]
Morris, op. cit. supra n. 1, at p. 290.
[61]
This is now generally accepted: see Dicey and
Morris, op. cit. supra n. 48, at
p.790.
[62]
In re Missouri Steamship Co. (1889) 42 Ch.D. 321.
[63]
[19391 A.C. 277.
[64]
The Hollandia [1983]
A.C. 565, on which see Mann, “Uniform Statutes in English
Law”
(1983) 99 L.Q.R. 376, 396 et seq.
[65]
3 December 1973, IPRspr. 1973
No. 128 with particular reference to the Conline
bill
of lading.
[66]
See his comment in the 1985 Supplement to
Dicey and Morris, op. cit. supra
n.48,
with reference to p. 861.
[67]
Morris, op. cit. supra n. 1, at p.278.
[68]
Idem, p.279.
[69]
Dicey and Morris, op. cit. supra n.48. at pp.22. 842 et seq.
[70]
The view expressed in the text has the support
of Eveleigh LJ in Rustenberg Platinum Mines Ltd v. South African Airways [1979] 1 Lloyd’s
Rep. 19, on which see Mann,
(1979) 95 L.Q.R. 346. It is odd that Eveleigh LJ’s dictum is ignored by Morris. It is
not
even mentioned in the Supplement to Dicey and Morris, op. cit. supra n. 48.