Наука международного частного права: Генрих фон Кокцейн

Abstract

The target of this article is to evaluate the theory of Private International Law developed by the German scholar Heinrich von Cocceji in 17th century. The contribution of this scholar to development of PIL doctrine has not yet been studied in Russian literature. The article analyses the Cocceji’s thesis, where he examines the question of conflicts of different national laws and of an applicable law’s determination. To consider these issues, the German scholar uses the methodology of his French and Dutch predecessors — the supporters of the theory of statutes, and thus he argues in line with this theory. The basic difference of Cocceji’s theory from classical theory of statutes is the starting point of his reasoning — he does not attempt to distinguish legal provisions and their scope, and sets the specific connecting factors. This is a very important difference, that explicitly anticipates the approach of the modern legislator to design the choice-of law-rules. In addition, he constructs a separate “action statute”, including not only questions of a form of an act, but also leading to generating of abstract connecting factor for determining the law applicable to the general concept of action. The conclusion of the article is that it is reputed that the main Cocceji’s contribution to the development of the PIL doctrine can be consideration of his assertion that the choice-of lawrules have nature of public law and the basis for solving conflicts of laws is international law — “international consensus of nations”.