CONFLICTS BETWEEN CHOICE OF LAW RULES AND RECOGNITION OF JUDGMENTS RULES IN PRIVATE INTERNATIONAL LAW WITH PARTICULAR REFERENCE TO CASES INVOLVING DETERMINATION OF STATUS A thesis submitted for the degree of Doctor of Philosophy at the London School of Economics, University of London. by Rhona G. Schuz M.A., LL.M. (Cantab.) 1 UMI Number: U062779 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U062779 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 TReses F 3GOQ. Library British Library of P;viticsl and Economic S c ie n ^ ABSTRACT This thesis presents a novel approach to part of the problem of the Incidental Question in the Conflict of Laws. Only cases where the answer to what has been called the main question depends on recognition of a foreign judgment (the so called incidental or preliminary question) are included. The problem is analysed as involving a conflict between two different types of conflicts rules i.e. choice of law rules and recognition rules. The thesis examines whether this conflict can be satisfactorily solved by a global preference for either of these rules. Whilst many writers have considered the theoretical base for the conflict of laws, none has yet specifically compared the rationales for choice of law rules and recognition rules in order to determine whether as a matter of principle one type of rule should be preferred to the other rule. This requires a fresh perspective. After rejecting the global solution, the thesis proceeds to examine how a result selecting approach might be applied to the present conflict of rules. After a brief survey of different result selecting approaches, it is concluded that the most appropriate approach in the present conflict of rules context is the construction of specific result orientated rules for each particular category of case. The desired result should be dictated by the policy of the forum, since in fact the conflict is between two conflict rules of the forum. 2 A number of specific topics (including validity of remarriage and matrimonial property rights) concerning recognition of status judgments are considered in depth. The methodology adopted is as follows:- a) . The particular circumstances in which the 'conflict of rules' problem is likely to arise in relation to the particular issue is explained. b). The various possible 'choice of rule' rules which might be adopted for the particular issue are considered. c) . The policy of English law in relation to the particular issue is ascertained and the 'choice of rule' rule which most closely gives effect to that policy recommended. The thesis contributes to jurisprudence of Private International Law in three main ways:- 1. The understanding of conflicts between different types of conflict rules is of fundamental importance to the whole structure of Private International Law. This thesis shows that this problem is of more significance than previously thought. 2. Whilst writers have adopted a functional approach to the incidental question, none have attempted to construct a series of rules based on forum policy. 3. There has been no previous attempt to identify forum (here English) policy in relation to the particular issues chosen. 3 CONTENTS PART 1: BACKGROUND AND STRUCTURE OF THE THESIS CHAPTER 1: PRELIMINARY ISSUES AND DEVELOPMENT OF THE THESIS I. THE SCOPE OF THE PROBLEM OUTLINED 11 A. BASIC PRINCIPLES 11 B. DISTINGUISHING BETWEEN THE 'CONFLICT OF RULES' SITUATION AND THE 'PURE RECOGNITION' SITUATION 12 C. DECISIONS AFFECTING STATUS 13 D. NOTATION AND TERMINOLOGY 15 II. RECOGNITION RULES 16 A. IN ACTIONS IN PERSONAM 16 B. MATRIMONIAL DECREES. 21 III. THE PROBLEM ILLUSTRATED 28 IV. THE DIFFERENCE BETWEEN THE TRADITIONALANALYSIS AND THE CONFLICT OF RULES ANALYSIS 38 A. THE TRADITIONAL ANALYSIS 38 B. THE 'CONFLICT OF RULES' ANALYSIS 42 V SOLUTIONS TO THE 'CONFLICT OF RULES' PROBLEM 44 VI FORUM DECREES 45 VII THE APPLICATION OF THE CHOICE RULE AND RENVOI 49 VIII BIAS IN FAVOUR OF RECOGNITION RULES? 55 A. 'PURE RECOGNITION CASES' 56 B. RECENT TRENDS IN PRIVATE INTERNATIONAL LAW 58 PART II: GLOBAL SOLUTIONS CHAPTER 2: GIVING PREFERENCE TO CHOICE OF LAW RULES I. INTRODUCTION 62 II: THE THEORIES 62 A. COMITY 64 1. Reciprocity 64 2. Judicial Courtesy 65 3. Business Efficacy 67 4. Conclusion About Comity 68 B. VESTED RIGHTS 69 C. JUSTICE TO THE PARTIES 71 1. What do we mean by justice? 71 2. Jaffey and the Principle of 'Reasonable Expectations' 73 3. Can 'Justice' Support A Global Preference for Choice Rules? 80 III: CONCLUSION FROM THE THEORIES 82 CHAPTER 3: GIVING PREFERENCE TO RECOGNITION RULES I . INTRODUCTION 83 II. THE THEORIES 85 A. ESTOPPEL PER REM JUDICATAM 85 B. COMITY 88 1. Reciprocity 89 2. Judicial Courtesy 94 3. Business Efficacy 95 4 C. THE DOCTRINE OF OBLIGATION 97 1. Acceptance of the Doctrine 97 2. Basis of the Doctrine. 100 D. IMPLIED CONTRACT 103 E. AVOIDANCE OF LIMPING MARRIAGES 104 III 'NON-RECOGNITION RULES' 105 A. INTRODUCTION 105 B. NON-MATRIMONIAL CASES 107 1. The Problem Explained 107 2. Rationale for the 'Non-Recognition Rules' 108 C. MATRIMONIAL CAUSES 114 1. The Problem Explained 114 2. Rationale for the 'Non-Recognition Rules' 115 IV. CONCLUSION 128 CHAPTER 4: GIVING PREFERENCE TO THE RULE WHICH IS STATUTORY I. INTRODUCTION 129 II. THEORETICAL BASIS 131 A. THE RATIONALES 131 B. 'NON-RECOGNITION RULES' 136 III RESULTS 137 IV. CONCLUSION 138 PART III: SPECIFIC SOLUTIONS CHAPTER 5 : THE RESULT-ORIENTED METHODOLOGY I . INTRODUCTION 140 I. THE RATIONALE FOR RESULT SELECTION 141 A. CRITICISMS OF MECHANICAL RULES 141 B. PUBLIC POLICY AS AN ESCAPE ROUTE 142 III. RESULT-ORIENTED RULES 147 A. THE DIFFERENCE BETWEEN AD HOC RESULT SELECTION AND RESULT-ORIENTATION. 147 B. EXAMPLES OF RESULT-ORIENTED RULES 149 C. CRITIQUE OF RESULT-ORIENTED RULES 153 D. ASCERTAINMENT OF POLICY 156 E. CONCLUSION IN RELATION TO RESULT ORIENTATION 158 IV METHODOLOGY 159 CHAPTER 6: CAPACITY TO REMARRY I SCOPE OF THE PROBLEM 162 A. INTRODUCTION 162 B. RECOGNITION OF DECREES IN OTHER COUNTRIES 163 1. Commonwealth countries 163 2. The United States 167 3. Civil Law Countries 170 4. Countries not Providing for Divorce 172 C. CHOICE OF LAW RULE FOR CAPACITY TO MARRY 173 II POSSIBLE SOLUTIONS 175 A. PREFER THE CHOICE RULE 175 1. Theoretical Basis 175 5 2. Authority 177 3. Results 179 B. PREFER THE RECOGNITION RULE 182 1. Theoretical Basis 182 2. Authority 184 3. Results 191 C. A 'DIFFERENTIAL RULE7 194 1. Introduction 194 2. The Possible Bases for Differentiation 196 3. Conclusion about 'Differential Rules7 205 D. PREFER THE RULE WHICH UPHOLDS THE VALIDITY OF THE MARRIAGE 205 III POLICY 207 A. THE PRESENT LAW 207 B. THE LAW COMMISSION7 S PROPOSALS 210 IV APPLICATION OF POLICY 212 V RECOMMENDATION 215 CHAPTER 7: SUCCESSION BY SPOUSES I. SCOPE OF THE PROBLEM 216 A. INTRODUCTION 216 B. CHOICE OF LAW RULES 217 C: DISCRETIONARY FAMILY PROVISION SCHEMES 219 D. SECOND MARRIAGES 222 II POSSIBLE SOLUTIONS 226 A. PREFER THE CHOICE RULE 226 1. Theoretical Basis 226 2. Authority 227 3. Results 230 4. The Doctrine of Preclusion 231 B. PREFER THE RECOGNITION RULE 242 1. Theoretical Basis 242 2. Authority 243 3. Results 244 C. THE 'DIFFERENTIAL RULE7 249 1. Theoretical Basis 240 2. Results 249 D. UPHOLDING SUCCESSION RIGHTS 249 III POLICY 250 A. WILLS 250 B. PROVISION FOR DEPENDANTS 252 1. The scheme of the 1975 Act 252 2. Former Spouses 253 3. The rationale behind discretionary family provision for spouses and former spouses 255 4. Fixed Share Schemes 257 C. INTESTACY 258 1. The present scheme 258 2. The Policy Behind Intestacy Provision for Spouses 259 IV APPLICATION OF POLICY 261 A. WILLS 262 1. Where the testator is the other 7 spouse7 262 2. The testator is a third party 262 6 B. PROVISION FOR DEPENDENTS 264 1. Discretionary Schemes 264 2. Fixed Share Schemes 265 C. INTESTACY 267 V RECOMMENDATIONS 268 CHAPTER 8: MATRIMONIAL PROPERTY I. THE SCOPE OF THE PROBLEM 269 A. INTRODUCTION 269 B. THE CHOICE OF LAW RULE 270 C. DIFFERENT TYPES OF MATRIMONIAL REGIME 275 1. Separate Property Regimes 275 2. Community of Property Regime 276 3. Deferred Community Regimes 279 4. Discretionary Distribution Schemes 290 D. MATRIMONIAL PROPERTY AND SUCCESSION 296 E. SECOND MARRIAGES 297 II POSSIBLE SOLUTIONS 298 A. APPLY THE CHOICE RULE 298 1. Theoretical Basis 298 2. Authority 302 3. Results 302 B. APPLY THE RECOGNITION RULE 305 1. Theoretical Basis 305 2. Results 306 C. THE 'DIFFERENTIAL RULE' 308 D. UPHOLDING MATRIMONIAL PROPERTY RIGHTS 309 III POLICY 309 A. OVERVIEW OF ENGLISH DOMESTIC LAW 309 B. ENGLISH LAW APPROACH TO THE ISSUES IN QUESTION 312 1. Sharing of Post-Decree Acquisitions 312 2. Realisation 315 IV APPLICATION OF POLICY 317 A. SHARING OF POST-DECREE ACQUISITIONS 317 B. REALISATION 319 V RECOMMENDATION 319 CHAPTER 9 : TORTS I THE SCOPE OF THE PROBLEM 320 A. INTRODUCTION 320 B. THE CHOICE OF LAW RULE 321 C. INTER-SPOUSAL IMMUNITY 323 D. WRONGFUL DEATH CLAIMS 327 II POSSIBLE SOLUTIONS 329 A. PREFER THE CHOICE RULE 329 1. Theoretical Basis 329 2. Authority 330 3. Results in relation to Inter-Spousal Immunity 331 4.