The English History

English private international law developed much later than on the European Continent.As a matter of fact,there was not even an awareness of the problems of conflict of laws until the 18th century.The non-existence of English private international law was partly because of the uniformity of common law within England and partly of the English jury system,as Professor Sack provided the explanation in brief as follows.1

The intra-national conflicts,that had long been inevitable on the European Continent owing to the existence of different legal systems within the territory of a single nation,could not arise in England after the whole country had been brought under the sway of a single common law.International conflicts were generally precluded by the procedural rule,established at an early stage,that the common law courts were unable to entertain foreign causes.This rule was the necessary result of the practice by which the members of the jury were summoned from the place where the operative facts had occurred,since their function was to decide according to their knowledge of the facts.The sheriff could hardly summon a jury from a foreign country in which the dispute between the parties had arisen.

Later on,with the significant change of domestic and foreign legal situation,English courts had to confront the conflicts problems directly.In 1707,with the adoption of Treaty of Union,Scotland became part of the country.Since Scotland is a civil law jurisdiction some of whose institutions differ markedly from those of England,intra-British conflicts problems arose.In the meantime,with the rise of the British Empire,English traders began to extend their commercial activities beyond the seas,and it was inevitable that the conflicts between British and foreign laws became more and more serious.(https://www.daowen.com)

Within such a setting,English courts and writers turned to continental doctrine and borrowed copiously from it.Since Huber’s doctrine was in vogue at the time,they imported wholesale.His passing reference to “rights acquired” under foreign law evolved in to a full-fledged doctrine of “vested rights” espoused by Dicey which later found its way into the United States in the early 20th century.

Dicey’s theory of vested rights is based on the principle of territoriality originated with Huber.He specified that a judge cannot directly recognize or sanction foreign laws nor can he directly enforce foreign judgments,for it is his own territorial law which must exclusively govern all cases that require his decision.The administration of private international law,however,raises the exception to the principle of territoriality,for what the judge does is to protect rights that have already been acquired by a claimant under a foreign law or a foreign judgment.Extra-territorial effect is thus given,not to the foreign law itself,but merely to the rights that it has created.

The theory of vested rights receives scant support at present day and it has,indeed,been devastatingly criticized.Undoubtedly,it stresses one of the principal objectives of private international law,for,as we have already seen,one of the elementary duties of a civilized court is to protect existing rights impartially even though they originated abroad.It serves to emphasize the need to find solutions with an international flavor.Nevertheless,it must be observed that to protect a right is to give effect to the legal system to which it owes its origin,for a right is not a self-evident fact,but a conclusion of law.2 Hence,the theory of vested rights is sheer sophistry.