Revolution and Evolution in Conflicts Law

AuthorKurt Siehr
PositionProfessor of Law at the University of Zurich Faculty of Law

Page 1353

Professor of Law at the University of Zurich Faculty of Law.

I Revolution

When Symeon Symeonides lectured in my conflicts class in Zurich he started with the landmark case Babcock v. Jackson.1 He told the story of the weekend trip of the Rochester families to Ontario and how these persons became known to all students of conflicts law. The lower courts had applied the traditional rule of lex loci delicti commissi and referred to the law of the Canadian Province of Ontario. This would not have created any problem if Ontario had not enacted a "guest statute" providing that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in . . . the motor vehicle."2 According to this "guest statute," a guest has no claim in tort against the owner or driver because the statute aims to prevent fraudulent activities between the driver and the guests. Instead of limiting this rule to insurance contracts governed by Ontario law or to residents of the Province, or instead of discarding this Ontario rule because it violates public policy of the State of New York, Judge Fuld applied the "center of gravity" or "grouping of contacts" theory of the conflict of laws and evaluated the interests of Ontario and New York in having their law applied to the present case. The result of such an evaluation is evident. There is almost no interest of the Province of Ontario but a predominant interest of New York in compensating the victim, Miss Babcock. Very interesting is Judge Fuld's final conclusion. He discarded the traditional rule of lex loci delicti commissi and introduced the rule that the law of the jurisdiction which has the strongest interest in the resolution of the particular issue governs. This conclusion is interesting insofar as it is not the only one to be drawn. On the other hand, this does not imply that the dissenting Judge Van Voorhis is correct. He criticized the "substantial changes in the law of torts" and anticipated a "confusion which such a change will introduce."3 Judge Van Voorhis should have concurred and given another reasoning for the correct solution that New York law governs.

It was Judge Fuld's reasoning which stirred up the American conflicts revolution. It originated in the law of torts and spread to other areas as well. Symeon ably described this conflicts revolution to my class, and my students asked whether there has been similar upheaval in Europe or in Switzerland. The answer is in the negative, although many European jurisdictions agree with Judge Fuld's Page 1354 result. The explanation of such a difference is an interesting aspect of comparative conflicts law.

II Evolution
A National Developments

Until the 1970s, there were very few written rules on private international law (Conflict of laws). Apart from the codifications of civil law in Italy (1942), Greece (1940/46), Portugal (1966) and Spain (1889/1974), there were some special statutes on private international law in East Germany (1975), Czechoslovakia (1963) and Poland (1965). They laid down the rule of lex loci delicti commissi and interestingly provided for an exception for domestic citizens or residents of a tort relationship created abroad. This was done in Poland4 and in Portugal.5 The courts of other jurisdictions were in the same position as the Court of Appeals of New York in Babcock v. Jackson. They had to decide whether to change their precedents, make exceptions, adjust to current theories or create a new one. This they did in several countries.

1. Switzerland

When Symeon stated the facts of Babcock v. Jackson, my students were reminded of a very similar set of facts and almost the same problems put to the Swiss Federal Tribunal.6 Two friends, Rudolf Vögtli and Werner Mùller, residents of Basle (Switzerland), bought a second-hand car for their common trips in Switzerland and to neighboring countries. In 1963, the same year that Babcock v. Jackson was decided, Vögtli and Mùller set out in their car for vacations in France. One day Mùller lost control of the car, hitting a tree and a wall. The car was completely damaged and Vögtli severely injured. Back in Switzerland, Vögtli initiated a lawsuit against Mùller and asked for compensation. There was no French "guest statute" which had to be avoided. Even the French statutes of limitations were more in favor of the plaintiff, who started the lawsuit rather late in 1970 when the Swiss statute of limitations for tort claims had already expired. The Federal Court qualified the relation between Vögtli and Mùller as a kind of simple company and approved the plaintiff's contention that Mùller violated his contractual obligations under Swiss law.

The only differences between Babcock v. Jackson and Vögtli v. Mùller were that Vögtli and Mùller commonly owned the car, neither one of them was a guest or host, and the relation between them was much stronger than that between Miss Babcock and the Jacksons.

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Today, the Hague Convention of 19717 would apply and the domestic Swiss Federal Act of Private International Law of 19878 provides in Article 133(1) an exception to the general rule of lex loci delicti commissi, mentioned in Article 133(2). Article 133(1) reads: "When a tortfeasor and the injured party have their habitual residence [at the time the tort was committed] in the same state, claims in tort are governed by the law of such state." If the case Babcock v. Jackson had to be decided under this rule, the tort laws of New York would govern Miss Babcock's claim for compensation.

2. Germany

In West Germany, the only proper conflicts provision for torts was §1(1) of the Ordinance of December 7, 1942, on the Application of Law in Cases of Torts Committed by German Citizens outside of German Territory.9 According to this ordinance, all torts committed abroad by a German tortfeasor against another German citizen were governed by German law. This rule was necessary because the ordinary rule applied by German courts was the rule of lex loci delicti commissi up to the limits of German tort law.10

There are, however, Babcocks, Jacksons, Vögtlis and Mùllers in Germany. What about foreigners living in Germany who meet abroad and a tortious act is committed abroad? This happened when residents of Germany travelled abroad and a road accident occurred between residents of Germany. German courts developed German case law in three steps:

? If Germans raise a tort claim because of a tort committed abroad, German law applies only if the Germans were habitually resident in Germany (restriction of §1(1) of the...

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