Codification of Private International Law: Pros and Cons

• Author: François Rigaux
• Position: Professeur emeritus of the Université catholique de Louvain
• Pages: 1321-1330

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Professeur emeritus of the Université catholique de Louvain; Member of the International Law Institute.

The last hundred years have been a century of codification of private international law. The starting-point was the EGBGB which entered into force on January 1, 1900, but the movement, which relented during the first half century, received a fresh impulse after the end of World War II. The last thirty years have been the "thirty glorious years" of recording private international law on the statutory books. In Europe, the last most striking events of that kind were the Swiss law on private international law of December 18, 1987,¹ and the Italian law of May 31, 1995. ² Liechtenstein has also adopted new provisions on private international law in 1997,³ as well as Russia. ⁴ Belgium is following suit At the end of 1999, the Belgian government sought a consultative opinion from the Conseil d'Etat on the draft statute containing a code of private international law.⁵

Although, on the other side of the Atlantic, "conflicts law and legislation are still perceived as antithetical themes,"⁶ two major exceptions have to be mentioned: the Louisiana Act 923 of 1991⁷ and the new provisions of the Code Civil of Quebec, which entered into force on January 1, 1994.⁸ It is no mere coincidence that both jurisdictions imported in the first years of the nineteenth century a French inspired Civil Code. The theme of this issue of the Louisiana Law Review has been purposefully chosen since Professor Symeonides was the much acclaimed reporter of the Louisiana Act.

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This present paper does not purport to analyze the various instruments embodying. new rules of private international law. This task would be tremendous.⁹ The aim is instead to submit some reflections on the very principle of codification in private international law.¹⁰

The following questions will be dealt with:

? What are the competing sources of private international law?

? What does "codification" mean?

? What areas of private international law are better adapted to some kind of legislative action?

? What judgement, if any, can be passed on codification of private international law?

I The Sources Of Private International Law

The word "sources" has various meanings. It can refer to the origin of a branch of law, and conveys at the same time a specific approach to it. When Roman law survived the dislocation of the Empire, it had to compete with different conflicting statutes (statuta) adopted by local jurisdictions Italian scholars such as Bartolo da Sassoferrato (1314-1357) drafted rules to make a choice between the competing statutes. Those rules were applied by the courts.¹¹ Scholarly from its origin, the science of conflict of laws won access to the courts.

Conflict law is law on the law Its realm is beyond the power of any legislator. The unifying shadow of Roman law lent support to the hope of overcoming the division of sovereignty through the device of common rules of conflict. After the invention of international law, tout court conflict rules found shelter in it Francisco de Vitoria's ius communicationis , which justifies the colonial conquests,¹² concerns the relationships between the subjects of various sovereigns and is more akin to what is now called private Page 1323 international law¹³ than to the "public" subdivision of the ius inter gentes. Grotius as well as Vitoria and the seventeenth to eighteenth century school of natural law do not separate the two branches of international relationships. Vitoria's justification of colonization is twofold: first is the freedom of communication between the peoples, and the second is the freedom of evangelization.¹⁴ It is striking how Story adhered to Vitoria's perspective. He states "The truth is, that the law of nations, strictly so called, was in a great measure unknown to antiquity, and is the sole growth of modern times, under the combined influence of Christianity and commerce."¹⁵ From Blackstone¹⁶ to Phillimore,¹⁷ Lorimer¹⁸ and Wharton,¹⁹ the law of nations is divided into two realms, the relationships between independent Christian princes and the dealings of those princes' subjects between themselves.

Continental scholars of the nineteenth century, Savigny²⁰ and Mancini,²¹ do not part company with their Anglo-American colleagues of the same period. All of them profess international law to encompass the whole field of human intercourse as between Christian nations and the subjects thereof. Laurent alone takes a more enlightened position.²² Savigny intends "to establish a scientific basis for conflicts law, congruent with the international community of law among independent states."²³ At the turn of the century another endeavour is gaining ground, namely the drafting of international treaties in the field of conflicts law. It is contemporary Page 1324 with the German EGBGB. After World War II, the legislative activity of the several states and the proliferation of Hague Conventions in specific fields of the law of conflicts will reach a level that was unknown before.

II What Is Codification?

Codification can at first have very broad meaning: enacting a written formulation of the law. It stands in opposition to non-written law, such as custom. But custom itself is fashioned after judicial decisions and contractual practices, which give it some kind of a written formulation. Since customary sources are scattered and difficult to assess, it is useful to codify them in order to bring them into a coherent body.

The sources of codification are either international or domestic. Almost all branches of law can be tackled in an international agreement: not only branches of international law itself, but also various aspects of substantive domestic law, which have been submitted to a process of unification or harmonization. Private international law can be codified either at the international or at the national level. The codification of public international law can only occur through an interstate agreement, but states are able to codify their own approach to foreign relations. Such is the character of the Restatement Third Foreign Relations Law, which is a form of äusseres Staatsrecht, but not a codification in the proper sense.

In view of the customary origin of international law, codifying that branch of law purports to give a comprehensive and as complete as possible body of traditional solutions. The International Law Commission in the field of "public" international law, and the Hague Conference of private international law in the "private" sphere are institutions whose mission is one of codification.

Since the days of the Justinian Codex iuris civilis up to the French, the German and the Swiss "Civil Codes," codification has also had a more ambitious purpose. It attempts to compress the whole of a branch of law into a comprehensive unit, a civil code, a penal code, a code of civil or penal proceedings, a code of public health and so on. It does not attempt to encompass the whole machinery of law, but only a part of it under the heading of a unifying idea.

The codification of international law, both public and private, has never been so extended. What is called codification either at Geneva or at the Hague consists of choosing a specific topic and bringing it into a written form. There does not exist either a thorough code of international law patterned after a code civil, nor an international code of private international law.

The first codifications of civil law contained some rules of conflict. This was the case with the Prussian Code of 1792 and the Code Napoléon of 1804, where a small number of provisions of private international law were scattered within the articles of substantive law. The Italian Civil Code of 1865 took a more deliberate approach through preliminary provisions (disposizioni preliminari) on conflicts of law, drafted according to the nationality principle under the influence of Mancini. A similar pattern was followed in the German BGB, whose introductory law (Einfùhrungsgesetz) contained basic rules of private international law.

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The first and the second Italian Codice civile, as well as the German Bùrgerliche Gesetzbuch, codified in the same instrument rules of civil law and conflict of laws rules. The recent Louisiana and Quebec conflict of laws rules were formally inserted in the civil codes of those jurisdictions.

Consequently, codification has two different meanings which partially overlap. One is formal. It produces a complete body of law, e.g. a civil or a penal code. Up to now such an endeavor has not been done in the field of (public) international law, where codification is always restricted to specific topics. The second meaning is of a substantive nature and it draws a distinction between two policies of codification: either fixing existing rules, for instance customary norms, or imagining original answers to new problems. National codes and international codification can equally look backward or forward. Some codes have been blamed for their obsolete character. For instance the French Code de procédure civile has been labelled as being dead before having been born. The German BGB also met with heavy criticism at the very moment when it entered into force.²⁴

State legislatures also insert special rules of conflict into specific statutes. This is a far cry from codification in the proper sense, even if the legislative intent is to embody in a unique instrument the substantive and conflict of laws aspects of a definite problem. While such special conflict of law rules are not inserted in a codification, there is doubt whether according to the principle Specialia generalibus derogant, they...