British Institute of International and Comparative Law

The Impact of Statutes on the Conflict of Laws

Author(s): Susan M. Nott
Source: The International and Comparative Law Quarterly, Vol. 33, No. 2 (Apr., 1984), pp.
437-448
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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 THE IMPACT OF STATUTES ON THE CONFLICT OF LAWS

A. Introduction

In the past, the conflict of laws was a subject whose rules were rooted alm
exclusively in the common law. However, it is now open to doubt whether
may still be regarded as having this characteristic. The quantity of legislati
with the conflict of laws as its subject-matter has been gradually increasing' an
all the indications are that this process is likely to continue. Indeed, the prefac
to the current edition of Dicey and Morris describes this as the most significa
development at present affecting the conflict of laws.2
Yet, at a time when legislation in general is on the increase, it may appea
strange to comment upon this trend as it affects one particular area of the law
What is worthy of note, however, is the fact that this has become a significan
feature of the conflict of laws only during the last decade. Indeed, the lack
legislation has been considered a virtue in the past:
Of all the departments of English Law, Private International Law offers the frees
scope to the mere jurist. It is the perfect antithesis of such a topic as real propert
law. It is not overloaded with detailed rules; it has been only lightly touched by t
paralysing hand of the Parliamentary draftsman; it is perhaps the one considerabl
department in which the formation of a coherent body of law is in course of
process.3

Thus, it is a matter for comment why this reasoning has suddenly ceased to hold
good, and it raises the question of the impact that the increasing use of
legislation will have on the rules of private international law. Will the law be
robbed of its ability to respond to the immediate situation? Or is this a
long-delayed move to secure some much-needed certainty in this particular area
of English law?
When the reasons behind the greater use of legislation are examined, the need
for certainty in the content of conflict rules is definitely a factor to be taken into
account. This is particularly true of areas such as family law. Here the common law
rules were often so involved as to leave everyone-lawyers and lay persons alike-
guessing at their exact scope. Take as an example the rule in Indyka v. Indyka4
which related to the recognition of foreign divorces. When the House of Lords
delivered its judgment in this case it was seen as lacking in clarity and as paving the
way for a protracted period of uncertainty as to the exact state of English law. In
consequence, it was suggested that individuals would be forced to resort to
litigation as the only satisfactory way of establishing their status. This view is
reflected in a contemporary case note in the Law Quarterly Review:

1. Compared with the position 30 or 40 years ago when there was virtually no
legislative activity in this area, there is now quite a regular flow of legislation relating to
the conflict of laws. Though it is true that the number of Acts each year is not
considerable, each tends to concentrate on a particular area of private international law
and hence to be of great significance. A recent example is the Civil Jurisdiction and
Judgments Act 1982.
2. Dicey and Morris, The Conflict of Laws (10th ed., 1980), Vol.1, Preface, p.ix.
3. Preface to Cheshire's Private International Law (1st ed., 1935).
4. [1969] 1 A.C. 33.

437 (1984) 33 I.C.L.Q.

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438 International and Comparative Law Quarterly [VOL. 33

If judges embark upon what, in effect, constitutes a far-reaching reform, it would

be very helpful to have their conclusions expressed with a precision approaching
that of the legislator. This would involve the formulation of the common
denominator in such a manner as to provide an indubitable guide, as well as the
avoidance of that uncertainty which individual opinions and, more particularly,
dicta are bound to create.5

Nor is this an isolated example. The common law rules relating to the test of
capacity to enter a marriage,6 of capacity to enter a contract,7 and of liability for
a tort committed abroad8 have all been or still are, to a greater or lesser extent, a
matter for speculation. Small wonder then that the logical solution to the failure
of the judiciary to produce workable and coherent bodies of law, on which both
individual and lawyer alike may rely, is to introduce legislation to "inject some
much-needed certainty into the law".9
Added impetus is given to this trend by the United Kingdom's membership of
various international organisations either directly or indirectly concerned with
private international law. Such bodies aim to achieve agreement on common
choice of law rules so as to ensure consistent State practice. The international
conventions produced as a consequence have proved useful starting points for
the promotion of legislation as far as the United Kingdom is concerned. By way
of illustration, the Wills Act 1963 came into being as the result of a convention
on the conflict of laws,10 as did the Recognition of Divorces and Legal
Separations Act 1971.11
A significant and perhaps unexpected influence has been exerted in this
direction by the European Economic Community. It has made considerable,
though not always fruitful, efforts to secure the harmonisation of the rules of
Member States in relation to particular aspects of the conflict of laws, notably
those concerned with economic matters. Two conventions have been concluded.
One relates to contractual obligations and the other to jurisdiction and
enforcement of judgments in civil and commercial matters. The latter has
recently been given legal expression in the United Kingdom in the Civil

5. F.A. Mann, "Recognition of Foreign Divorces" (1968) 84 L.Q.R. 18-19.

6. The point is still raised that capacity to contract any marriage-or perhaps more
particularly a polygamous marriage--is governed by the law of the parties' intended
matrimonial home. Radwan v. Radwan (No.2) [1973] Fam.35. This is in place of the more
orthodox dual domicile theory. Currently, the conclusions in this area of private
international law of the Law Commission are awaited; see the comments in Working
Paper No.83, Polygamous Marriages, p.103.
7. The issue of which system of law governs capacity to enter a contract has never been
satisfactorily settled. A solution is put forward in the EEC Contractual Obligations
Convention, Art.11, should this ever be given the force of law in the UK.
8. The rule in Phillips v. Eyre (1870) L.R. 6 Q.B. 1, even though considered at length
in Boys v. Chaplin [1971] A.C. 356, has never had its content or its sphere of operation
satisfactorily explained. The latest case to consider this matter is Coupland v. Arabian
Gulf Petroleum Company [1983] 2 All E.R. 434, as to which see Morse, infra p.449.
9. This comment was made in relation to the Recognition of Divorces and Legal
Separations Act 1971 in Morris, The Conflict of Laws (2nd ed., 1980), p.143. It should
hold good for any legislation introduced into this sphere of the law.
10. Hague Convention on the Conflict of Laws relating to the Form of Testamentary
Dispositions 1961.
11. Hague Convention on the Recognition of Divorces and Legal Separations 1970.

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APRIL 1984] Conflict of Laws: The Impact of Statutes 439

Jurisdiction and Judgments Act 1982. Obviously, considerable advantage is seen

in concluding such agreements when they enable an action in one State to be
similarly treated in all other Member States.
Yet, this is not to ignore the pressure within the United Kingdom for a move
to rationalise the rules of private international law. Members of the judiciary
and academics have in the past put forward proposals for reform.12 However, by
far the most concerted pressure for organised rather than piecemeal reform has
come from the Law Commission. It has undertaken, in co-operation with the
Scottish Law Commission, a far-reaching review of the various aspects of private
international law and brought forward a great many proposals for legislation. At
the end of the Law Commission's programme-should all its proposals be
implemented-it should be possible to see the majority of conflict rules placed
on a statutory footing.
These then, it appears, are the main factors that have conspired to produce a
steady stream of legislation with the conflict of laws as its subject-matter. The
quest for greater certainty, the desire to implement international conventions
and domestic pressure for change can all in part account for the legislative
developments of the past decade.
Once the reasons behind the growing impact of legislation have been
considered, some thought ought to be given to evaluating its content. This,
however, is far easier said than done. Articles have been devoted to the
subject13 and it would seem to be of little benefit to enter the controversy over
the various ways in which legislation of this nature may be categorised. Instead,
this article sets out to raise more general points regarding the impact of
legislation on the conflict of laws. Consequently, a division will be adopted
between that legislation which directly and that which indirectly affects the rules
of private international law. In the former category will be included those Acts
of Parliament which directly affect the English choice of law rules. The Wills Act
1963 and the Recognition of Divorces and Legal Separations Act 1971 may serve
as examples. In addition, an Act such as the Civil Jurisdiction and Judgments
Act will also be included in as much as it institutes a new statutory regime for the
recognition of foreign judgments which will bring in its wake new rules for the
assumption of jurisdiction by the English courts. Such rules, though not choice
of law rules, are so closely related to the issue of choice of law as to be included
within this category.
As for legislation which indirectly affects the rules of private international
law, this is a reference to rules of domestic English law which on their face
appear to have no connection whatsoever with the conflict of laws, but whose

12. Members of the judiciary have done so in a general fashion by drawing attention to
areas of the law where all is not satisfactory, rather than by making detailed proposals for
new legislation. A recent example of this was in Quazi v. Quazi [1980] A.C. 744, where
Lord Scarman suggested that the question of financial relief after a foreign divorce be
referred to the Law Commission. In contrast, academics, particularly those responsible for
producing Dicey and Morris (supra n.2) and Cheshire (Cheshire and North, Private
International Law (10th ed., 1979)), will sometimes put forward detailed arguments for
change. The advocacy of the proper law of the tort doctrine in Dicey and Morris is one
such example.
13. See e.g. Mann, "Statutes and the Conflict of Laws" (1972-3) 46 B.Y.I.L. 117.

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440 International and Comparative Law Quarterly [VOL. 33

content, through the operation of a choice of law rule, may become significant.
Questions may be raised regarding the scope of domestic legislation and its
importance in situations involving a foreign element. For example, will the
policy embodied in English consumer and employment legislation be regarded
as so fundamental as to make it applicable whatever the legal system singled out
by the English choice of law rules?
In adopting this division between types of legislation, the criticism may be
made that it lacks finesse. Undoubtedly examples may be produced of
legislation that fits happily into neither of these categories, or alternatively into
both. However, what is sought is to make a simple distinction between
legislation that is regarded as having an impact upon that area of the law
commonly known as private international law and other legislation. This is on
the basis that different considerations should come to the fore when either
category of legislation is evaluated. It is these considerations which are the
subject-matter of this article and not the process of classification itself.

B. Legislation Directly Affecting the Rules of Private International Law

Legislation of this nature brings in its wake a number of difficulties. As has

already been remarked, much originates as the product of an international
conference whose object is the promotion of uniform practices between
participating States. The idea is that in this way phenomena such as the limping
marriage may be avoided. In addition, there may be other sound reasons why an
international convention is favoured as the basis for legislation. These may be
economic or diplomatic. Hence the European Convention on State Immunity-
now translated into the State Immunity Act 1978--ensured a measure of
agreement on the application of this doctrine, particularly in the sphere of
commercial transactions.
Yet this is not to suggest that the passage, if it is made, from international
convention to English law is without repercussions. Attention should be paid to
the fact that the majority of the world's States will not be represented at such
international gatherings. This is the case with conventions produced by Member
States of the European Economic Community. Therefore, at the very outset of
the process of translating such conventions into legislation, a decision must be
reached as to whether the new conflict rules will have general application. In the
past, the decision has been taken in favour of general application. The reasons
for this are not hard to see. Take, for example, the Recognition of Divorces and
Legal Separations Act 1971, mentioned above. This was the product of a
convention agreed upon at the 1968 Hague Conference on Private International
Law. Twenty four States attended that conference and reached agreement on
the terms of the draft convention. When the Law Commission considered the
consequences of introducing legislation to implement the Convention,14 the
members discussed the desirability of generalising the application of the rules
prescribed by the Convention. The following arguments were advanced for
making the rules generally applicable:

(a) The United Kingdom's ratification of the Convention is an implied acceptance

14. Law Commission Report No.34 (1970), Cmnd.4542.

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APRIL 1984] Conflict of Laws: The Impact of Statutes 441

that the rules in the Convention are satisfactory and, if they are satisfactory,
they should apply equally to countries which adopt the Convention and to
those which do not.

(b) To have one set of rules applicable to all countries would be a greater
simplification in the sphere of international recognition of decrees and would
avoid the anomalous situation whereby, on the same jurisdictional facts, a
divorce would be recognised if obtained in country A, but would not be
recognised if obtained in country B.

(c) Since States will adopt the Convention at different times, some perhaps in
relation to some of their territories only, and others may withdraw from the
Convention, it would be necessary to keep abreast of this changing pattern by
subordinate legislation. This would complicate the task of those concerned
both with the making and with the application of the laws. 5

That such logic proved convincing is shown in the form that the Recognition of
Divorces and Legal Separations Act 1971 eventually took.
However, this approach is satisfactory only if an international agreement
requires no more than a revision of the content of a State's conflict rules. Where
an additional adjustment of a State's domestic law is necessary to achieve a
consequential effect on its conflict rules, then the whole issue becomes a good
deal more complex. This has proved to be the case with the Civil Jurisdiction
and Judgments Act 1982. The Act is designed to implement the European
Economic Community's convention on this subject. The form of the conflict
rules rests on the assumption that every Member State, when dealing with
litigation involving civil or commercial issues, will assume jurisdiction on exactly
the same basis.'6 Therefore, the recognition of that judgment in another
Member State is well-nigh automatic since the grounds for refusing recognition
are very restricted indeed.17 Obviously, it is impossible to extend the operation
of such a convention to a more general level unless it can be guaranteed that the
States involved would also assume jurisdiction on the self-same basis as the
members of the European Economic Community do. In contrast, the common
law rules regarding the recognition of foreign judgments make no assumptions
whatsoever regarding the ground on which a foreign court has assumed
jurisdiction. 18
Hence, the introduction of legislation on the conflict of laws will not
automatically mean that a single system will prevail. So far as the recognition of
foreign judgments is concerned, there are now five separate sets of rules. They
are:

15. Idem, sec.V, para.19.

16. That basis being the domicile of the individual in the Contracting St
being sued: Art.2. There are, however, exceptions to this general rule in s
the Convention.
17. On no account is a Member State enforcing or recognising a judgment delivered in
accordance with the provisions of the Convention allowed to examine the basis on which
jurisdiction was assumed: Art.28. The exceptions permitted to this statement of principle
are very few indeed: Art.28.
18. The common law approach is to consider in general terms whether grounds exist to
allow the foreign court to assume jurisdiction. For example, the presence of the plaintiff in
the foreign country. The foreign court's specific reasons for assuming jurisdiction are not
normally examined.

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442 International and Comparative Law Quarterly [VOL. 33

(i) the common law rules;

(ii) the rules set out in the Administration of Justice Act 1920;

(iii) the rules set out in the Foreign Judgments (Reciprocal Enforcement)
Act 1933;

(iv) the rules set out in the Civil Jurisdiction and Judgments Act 1982;

(v) the rules set out for the recognition of judgments delivered within the
separate jurisdictions of the United Kingdom.19

The fact that all but one of these sets of rules is statutory has done little to
eliminate the complexities within this particular area of private international
law. Thus it is wrong to assume that, merely because an international
convention has been concluded, matters will consequently be simplified at a
stroke. Much depends on how the convention goes about achieving the
harmonisation of practice which it wishes to arrive at between States.
Even when this is settled and it is concluded that a treaty may be made
generally applicable, the degree of harmony thereby achieved may be very
limited indeed. This relates to the fact that among common law jurisdictions
there is a fair measure of agreement as to the content of conflict rules.20 In
introducing legislation to implement a treaty, this may be lost. In this fashion,
harmony between a small number of States may be achieved at no small cost to a
much larger group of States. This might prove the case, for example, if the
European Convention on Contractual Obligations was made generally applic-
able in the United Kingdom.
In addition, it is possible to have as many divergent practices after the
conclusion of a harmonisation treaty as before it. It is not inevitable that, simply
because a number of States have agreed upon a common formula within a
treaty, it will then be applied uniformly by the domestic tribunals of each of
those States. So far as English law is concerned it is possible for the courts to
refer to the convention itself as an aid to construing the Act in question.21 This
practice was resorted to recently in Quazi v. Quazi22 when it proved necessary
to construe a section of the Recognition of Divorces and Legal Separations Act
1971.
Complete uniformity of practice between States, however, will only be
ensured if an international judicial body is constituted in order to pronounce on
such matters. Certainly this notion has recommended itself to the members of
the European Economic Community. Protocols to both the Convention on
Contractual Obligations and the Convention on the Recognition of Civil and
Commercial Judgments have provided that matters of interpretation should be
entrusted to the European Court of Justice. In this fashion, it is hoped to secure

19. These are based on the rules contained in the European Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters. The Convention is
specifically varied to apply within the UK by Sched.4 of the Civil Jurisdiction and
Judgments Act 1982.
20. In areas such as the law of contract.
21. See Salomon v. Commissioners of Custom and Excise [1967] 2 Q.B. 116.
22. [1980] A.C. 744.

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APRIL 1984] Conflict of Laws: The Impact of Statutes 443

a greater uniformity of practice among Member States. Obviously, however,

this is possible only in exceptional circumstances, when the services of a body
such as the European Court are available.
Until now, attention has been focused on the problems that arise when an Act
of Parliament is intended to give effect to an international convention.
However, what also requires comment in relation to all legislation involving the
conflict of laws is the need for the highest standards of draftsmanship in its
preparation. Equally important is a breadth of knowledge of English law so as to
anticipate what can sometimes be quite untoward results. Cheshire was correct
when he referred to the "paralysing hand" of the legislature.23 An error, once
made, can normally only be corrected by the passage of fresh legislation, which,
if it involves the conflict of laws, is unlikely to rate high on a government's
crowded legislative timetable. This may mean that the courts will be left to deal
with the consequences of an unsatisfactory piece of legislation as best they can.
Nor is it only the courts which will find themselves having to cope. Other
individuals besides the judiciary have to construe legislation concerned with the
conflict of laws. Immigration officials may have to decide whether or not a
couple is validly married before admitting them to the United Kingdom.
Businessmen will now have to contend with the complexities of the Civil
Jurisdiction and Judgments Act in determining where to sue a business partner
operating within the European Communities.
Some examples may serve to show what repercussions legislation found
wanting in this fashion may have on the conflict of laws. The Recognition of
Divorces and Legal Separations Act 1971 was introduced to give effect to a
perfectly legitimate desire to make the recognition of foreign divorces a simpler
and more certain process. An international convention had been concluded
which seemed ideally suited to replace the uncertainties of the common law
rules. However, when legislation was produced to give effect to this convention,
certain consequences of this move passed unquestioned. The major one was the
rule of English law that English financial relief may be granted only in
connection with an English, not a foreign, divorce.24
Obviously, the same rule existed when the recognition of foreign divorces was
a matter for the common law. Yet, when the process of recognition was made
simpler, more spouses were faced with the dilemma of either trying to obtain a
foreign financial settlement or else challenging the recognition of a foreign
divorce in England. If the latter action was successful, then the spouse might
obtain an English divorce and English financial settlement. Thus the 1971 Act
unintentionally provided a greater incentive for litigation. Granted that the
number of cases arising is small, they can, however, involve a considerable sum
in legal aid25 particularly when measured against the value of the assets
involved. As for the legislation to rectify this situation, that still languishes in the
shadows awaiting a place on the legislative timetable.26
23. Supra n.3.
24. The problem presented itself immediately the 1971 Act became operational in
Torok v. Torok [1973] 3 All E.R. 101.
25. As was the case in Quazi v. Quazi [1980] A.C. 744.
26. The form such legislation should take is suggested in Law Commission Report
No.117, Financial Relief After Foreign Divorce. See now the Matrimonial and Family
Proceedings Bill, Part III.

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444 International and Comparative Law Quarterly [VOL. 33

Another example of how legislation, if not properly thought out, can have far
from the desired effect is provided by section 11(d) of the Matrimonial Causes
Act 1973.27 This places a prohibition on an English domiciliary entering into a
polygamous marriage. In the past, potentially polygamous marriages as well as
actually polygamous marriages were thought to be included. In consequence,
this subsection was believed to have unfortunate repercussions for those
individuals domiciled in England but maintaining a tie with a country where
polygamy was permitted. Should such an individual contract a marriage in that
country then it would be considered void on the basis of section 11(d)
irrespective of the fact that the marriage was to all intents and purposes a
monogamous marriage for the whole of its duration.
However, this entire reasoning was upset by the decision in Hussain v.
Hussain.28 The previously undisputed rule that the nature of a marriage is
determined by the lex loci celebrationis was disregarded. Instead, the character
of a marriage was said to depend on the parties' own personal law, that is their
domiciliary law. Here, since neither party was able according to their
domiciliary law to take a second partner, their marriage was considered
monogamous and not within the scope of section 11(d).
Justification for this attitude was sought in the social consequences of not
doing otherwise.29 It was regarded as exceedingly harsh to treat the marriages of
a certain section of the community in this fashion when those marriages were, in
all but name, monogamous marriages. Correct though this is, what the decision
in Hussain highlights are the sorry consequences of an ill-considered piece of
legislation. In taking it upon themselves to redress the balance, the English
courts have undermined the status of a previously well-settled rule whilst failing
to correct the situation totally.30 All that can be hoped for now is amending
legislation to put the matter beyond dispute and not to muddy the waters
further.31
A final example of the confusion that may be caused by hastily or carelessly
drafted conflict rules is provided by the Recognition of Divorces and Legal
Separations Act 1971. The use of the term "proceedings" or "proceeding" in
that particular Act and the amendments to it has given rise to speculation on the
potential difference between the terms32 and, more serious still, to a spate of

27. This is one of those awkward pieces of legislation which, whilst not being accurately
described as a choice of law rule, uses private international law concepts. However, since
the rule does have direct repercussions for the conflict of laws by attempting to prevent an
English domiciliary from contracting a polygamous marriage, the inclusion of the rule in
this section appears appropriate.
28. [1982] 3 All E.R. 369; see Briggs, "Polygamous Marriages and English Domici-
liaries" (1983) 32 I.C.L.Q. 737.
29. [1982] 3 All E.R. 369, 372.
30. Wives domiciled in England who enter into marriages in the circumstances
described in Hussain will not benefit from that decision if their husband's personal law
permits him to take more than one partner.
31. Along the lines suggested in Law Commission Working Paper No.83, Polygamous
Marriages.
32. See North, The Private International Law of Matrimonial Causes in the British Isles
and the Republic of Ireland, Chap. 11, p.225-230.

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APRIL 1984] Conflict of Laws: The Impact of Statutes 445

litigation on the standing of a bare talaq divorce.33 It is a matter of dispute

whether such a divorce can be said to be obtained by means of proceedings. If it
cannot, then an unfair distinction appears to have been made between those
countries which have chosen to put the talaq divorce on a formal footing without
altering its essential character and those countries which have not.34 Whilst it is
true that the language used in the Act stems from the wording of the
international convention,35 there is no bar to the United Kingdom being more
generous than is required by this agreement.36 Indeed it has been suggested that
the courts might have been prepared to put a more generous interpretation on
the term "proceedings" if it were not for the bar to financial relief already
discussed.37 As it is, might it not have been better to try to avoid contentious
words such as "proceedings" and put stress upon the effectiveness of the divorce
in the country where it is obtained?
In conclusion, the aim of legislation directly involving the conflict of laws
should be to provide rules which allow individuals and their advisers to assess
their legal position without recourse to litigation. Obviously, this is an ideal
situation and there will always be occasions when resort to the courts is
necessary. However, given that the body of legislation involving the conflict of
laws, whilst increasing, is still small, certain factors ought to be borne in mind
for future reference. These include the need to assess whether a change in one
area of the law will have repercussions elsewhere, and the need to avoid, if
possible, the vague language of international conventions unless, that is, a body
is available on an international level to interpret such terms. Otherwise, if these
items are not attended to, courts may be forced to apply legislation in ways that
were never intended in order to rectify the situation. Legislation must have
much to recommend it if it allows individuals to be aware of their position under
the law. If, however, that legislation is vague in its terminology and technical in
its operation, and little attention is paid to it at its formative stages,38 then it will
not improve but exacerbate the situation.

C. Legislation Indirectly Affecting the Conflict of Laws

Up to this point, attention has been focused on legislation which has some
significant connection with the rules of private international law. However, this
forms only a tiny part of the legislation passing through Parliament each year.
The remaining Acts of Parliament are for the most part concerned with domestic

33. In Zaal v. Zaal (1982) 12 Fam. Law 173, a bare talaq was said to constitute
"proceedings". This was not so in either Sharif v. Sharif (1980) 10 Fam. Law 216 or
Chaudhary v. Chaudhary, The Times, 18 May 1983. Both were judgments delivered by
Wood J.
34. Contrast the practice in Pakistan where the granting of a talaq divorce has been
placed on a formal footing by the Family Law Ordinance 1961 and that in Kashmir-part
of which is a part of Pakistan-where it has not.
35. As was discussed in Quazi v. Quazi [1980] A.C. 744, 814.
36. This occurs in the 1971 Act where some of the common law rules were placed on a
statutory footing in s.6.
37. "The Lingua Franca of Divorce Law" (leading article), The Times, 19 May 1983.
38. As was the case with s.11(d) of the Matrimonial Causes Act 1973.

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446 International and Comparative Law Quarterly [VOL. 33

matters and appear to have little bearing on the conflict of laws. Yet, in some
cases, this may prove not to be the case.
Take, for example, the rule of English private international law which allows
the parties to a contract to decide for themselves which system of law is to
govern it.39 It is not beyond the bounds of possibility that such a rule might be
manipulated to allow an individual to escape the demands placed upon him by
English law. A transaction which has all its links with England might be said in a
contract to be governed by a foreign system of law, thus stripping a consumer,
for instance, of all his protection under English law. Therefore, if the provisions
of a piece of domestic legislation are believed to be of enough importance, steps
should be taken to see that they are not evaded in this fashion. The easiest way
of securing this objective is by legislating against it. However, this very rarely
occurs. The best known example is provided by section 27(2) of the Unfair
Contract Terms Act 1977:

This Act has effect notwithstanding any contract term which applies or purports to
apply the law of some country outside the United Kingdom, where (either or both)
(a) the term appears to the court, or arbitrator or arbiter to have been imposed
wholly or mainly for the purpose of enabling the party imposing it to evade the
operation of this Act; or
(b) in the making of the contract one of the parties dealt as consumer, and he was
then habitually resident in the United Kingdom, and the essential steps
necessary for the making of the contract were taken there, whether by him or
by others on his behalf.

As may be gathered from the wording of this subsection, the whole matter
requires a great deal of foresight on the part of the legislators to produce a
carefully worded provision. The aim is not to affect in any way those situations
where, quite properly, a foreign system of law applies. Instead, attention must
be focused on those relatively rare occasions where, but for the inclusion of a
term allowing a foreign system of law to be applied, English law would have
governed a transaction.
It may well be that only in exceptional circumstances can a specific provision
be drawn up. In the remainder of those cases where the English court feels that
the English conflict rules cannot be applied to the detriment of English law,
there is always the doctrine of public policy to fall back on. Indeed, on occasions
this is made an explicit provision of conflict of laws legislation.40 The English
courts are therefore always alive to the prospect that the nature of English
domestic legislation may be such as to prevent the application of the relevant
choice of law rule. It is a matter for speculation whether the lex causae will
increasingly have to defer to the policies of English law. Article 7 of the
European Convention on Contractual Obligations certainly makes this general
point in relation to the law of contract:
When applying under this Convention the law of a country, effect may be given to
the mandatory rules of the law of another country with which the situation has a
close connection, if and so far as, under the law of the latter country, those rules
must be applied whatever the law applicable to the contract. In considering

39. See Dicey and Morris, op.cit.supra n.2, at pp.753-761.

40. See s.8, Recognition of Divorces and Legal Separations Act 1971.

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APRIL 1984] Conflict of Laws: The Impact of Statutes 447

whether to give effect to these mandatory rules, regard shall be had to their nature
and purpose and to the consequences of their application or non-application.

Nothing in this convention shall restrict the application of the rules of the forum in
a situation where they are mandatory irrespective of the law otherwise applicable to
the contract.41

Another instance where the content of English law becomes important occurs
when English law is the lex causae. Questions may have to be asked concerning
the purpose and scope of domestic legislation so that it is not applied in
situations where it is totally unsuitable. The much quoted example of this
process in operation is Pugh v. Pugh.42 Here the validity of a marriage between
an English and a Hungarian domiciliary was in question since the latter was only
14 years of age. Section 2 of the English Marriage Act 1949 provided as follows:
[M]arriages solemnised between persons either of whom is under the age of sixteen
shall be void.

It was concluded that the effect of this section was to invalidate the marriage in
question even though it was no part of the personal law of the under-age party
and the marriage had not been celebrated in England. Whatever view is taken of
the correctness of this decision, there is no doubt about the content of the
conflict rule but about the interpretation of the lex causae, namely English law.
In the majority of cases such doubts will not occur since it will be clear that
English law was meant to apply in those particular circumstances. However, it
can occasionally be a problem43 and one that is not easily solved by the way in
which domestic legislation is drafted. It will be most unusual to find a provision
which states that, where the conflict rule makes English law the lex causae, then
certain legislative provisions are not to operate since they are intended to be
purely domestic in scope. A rare example of an attempt to achieve just this is
section 27(1) of the Unfair Contract Terms Act:44
Where the proper law of a contract is the law of any part of the United Kingdom
only by choice of the parties (and apart from that choice would be the law of some
country outside the United Kingdom) sections 2 to 7 and 16 to 21 of this Act do not
operate as part of the proper law.

However, in most cases this is not a problem which can be easily anticipated
or to which an appropriate legislative answer can be given which will be valid for
every occasion. Consequently, from this brief discussion, it can be appreciated
that the content of what appears to be domestic legislation can sometimes
become a matter of interest to the conflict of laws. However, whether domestic
legislation can and indeed should make provision for such an eventuality is
another matter altogether. On occasions it may be possible. Yet the danger is

41. This would be difficult to apply if it were given the force of law in England.
42. [1951] P.482. However, the thinking behind the provision reflects a growing desire
on the part of States to prevent important legislation being circumvented.
43. In theory, legislation will be considered territorial in its operation. However, this is
a presumption that can and will be rebutted.
44. The attempt was made here since it was considered important that foreign
businessmen should not be discouraged from using England as a centre for arbitration by
doubts on whether the substantive provisions of this Act applied.

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448 International and Comparative Law Quarterly [VOL. 33

that in so doing cases will be wrongly included or excluded. Instead, this would
seem to be a situation where the matter is better left to the courts as long as it is
clear that a sensible approach should be taken to the policy contained in English
domestic legislation. It should be extended beyond the purely internal situation
only where it is clear that this was intended, whilst the policy it contains should
override the rules of a foreign system of law only where it is thought to be
absolutely necessary.

D. Conclusion

In assessing why legislation has recently had a significant impact on th

of laws, reference has been made to the need for certainty in the conte
rules. On many occasions, when dealing with the common law rules, i
be possible to say positively what those rules are, even in a well-litigate
the law. Obviously, such uncertainty is not desirable as it affects n
lawyers advising their clients but a host of other officials and also the
concerned to know his standing in the eyes of the law.
The solution to this is therefore to put the rules on a statutory basi
fashion, anomalies may be removed, uncertainties cleared up and t
brought into line with what is required by modern conditions. It would
more satisfactory if this change could be gained not in isolation but i
with other States. In this way, consistency might be achieved so that
marriage would be recognised or the same contract regarded as bindin
However, as has already been stated, consistency of practice may
achieved simply by adopting the same rules as one's fellow States.
legislation automatically guarantee a total absence of uncertaint
domestic level. In the past, the common law rules have been used crea
say the least, in order to side-step an awkward situation.45 With legisla
becomes a more difficult process, if not well nigh impossible. Theref
legislation that is introduced must recognise that the conflict of laws
ordinary area of law. A decision to alter the choice of law rules is n
sufficient. What must always be appreciated are the results of so doing
are not considered then the law may be in no better state than it was b

SUSAN M. NOTT

45. E.g. the way in which the law relating to the recognition of foreign nullity decrees
has been developed: Perrini v. Perrini [1979] 2 All E.R. 323.

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