The Sphere of the Lex Situs

It has been shown that,the law of the situs governs the real rights over both immovables and movables,subject to certain exceptions.It now remains to clarify the scope of the lex situs in detail.Generally speaking,apart from the distinction between immovables and movables,as noted above,the law of the situs covers the whole field of ius in rem,which may be analyzed as follows:

First,the law of the situs decides the specific range of real rights as the objects of ius in rem.8 Different systems of law are quite different in this field,and a type of real right unknown in a country cannot be created with regard to things situated in that country.For example,French law does not admit mortgages without possession of movables.Therefore,movables situated in France cannot be pledged without delivery,irrespective of whether this would be possible under the law of the place of contracting under the domiciliary law of the creditor or the debtor.9 Another Example,under common law and French law,movables include tangible movables and intangible movables,whereas movables indicate tangible movables only under German and Japanese Civil Code.As a principle,the law of the situs determines what real rights are recognized.

Second,the law of the situs is generally applicable to any creation,transfer,or extinction of ius in rem.Such creation,transfer and extinction are usually based on certain juristic acts or facts,such as a transaction between two parties or the death of the owner.The laws of different countries differ in the specific requirements and means with regard to these issues.The conflict of laws in this respect is generally settled by reference of the lex situs.(https://www.daowen.com)

Third,the law of the situs governs the types and the content of ius in rem.Under the civil law doctrine,the types and content of ius in rem are prescribed by law and the laws of different countries are by no means identical in this respect.The conflict of laws is usually settled by the lex situs.For instance,Article 100 of the Swiss Private International Law provides that “[T]he extent and the exercise of interests in movable property shall be governed by the law of the place where the property is located.”10

Fourth,under the civil law doctrine,the lex situs covers the protection of ius in rem.Under the civil law doctrine,the means to protect ius in rem include,inter alia,requesting ceasing infringement,restitution,recognition of ownership and damages.Which means a person is entitled to be governed by the lex situs.It should be noted that this is not the view of Anglo-American law which prefers to apply the lex fori instead.