Theory of Qualifications and the Conflict of Laws

Abstract

The differences existing in the rules of the conflict of laws in the various countries has given rise to the question whether the rules of the forum should be interpreted as adopting the foreign law in its totality, including its rules of the conflict of laws, or whether they should be deemed to incorporate only the foreign internal law. This problem is that of renvoi. A problem of a different character, though equally fundamental, may arise, even if the rules of the c9nflict of laws of the countries involved in a given case are alike, because of a difference in .the meaning of the concepts used. "Nationality," "domicil," "the law of the place of contracting," "the law of the place of performance," and "the law of the place where the tort was committed" are all legal concepts which may be determined in more than one way. The countries differ also on the question of what constitutes immovable and what movable property, on the meaning of "capacity," "form," "substance," "procedure," and in their definition of various other terms upon which the application of the foreign law depends. The question thus presenting itself is what law is to determine the meaning of the above terms. The problem referred to has given the greatest concern to the continental writers and is generally discussed by them under the title of "theory of qualifications."