The Principles of The Dutch Theory of Conflict of Laws and The United States and European Legislation on Private International Law

Abstract

The article explores the development of fundamental principles of Private International Law stipulated by the great Dutch specialists in conflict of law (i.e. respect for acquired rights abroad, provided they do not impair the power or rights of other sovereigns or his subjects) and their enshrinement in the United States and European legislation. The importance of the principles specified in the Dutch theory of "comitas gentium" lies in establishing a unified and common to all the countries principles of private international law based on universal sovereignty recognized by all States. It is noted that the selected by the Dutch doctrine criteria of limiting the scope of application of the foreign law, exactly comply with those values which in modern law are a part of the public (constitutionally significant) interests (public interest) that form the basis for public policy (ordre public) in private international law in the countries of the Roman-Germanic law and the foundation of public (Government) policy (Public Policy) in the law of the United States. Based on detailed analysis of the theory and legislation of the XIX-XX centuries the author sets the phases of enshrining the principles stipulated by the Dutch specialists in conflict of laws in the legislation of foreign countries. The article justifies the reasons why the specified in the Dutch theory limits of application of foreign law, became not only further dividing line between applying domestic or foreign laws, but also the main criterion determining the applicable law in private international law. The author concludes that the conflict of laws bases proposed by the Dutch became the grounds for the principle of a closer interrelation and formed the subject of the consequential method of resolving conflicts in the US legislation, while in the legislation of the European countries they became part of the safeguard clauses on public policy (ordre public) both within the meaning of private international law, and within the meaning of the civil law.