1. See Part II of this paper.

2. See Part II of this paper.

3. Before proceeding I should indicate in what sense some probative value terms are used throughout this paper.

“Conclusive evidence” is evidence which issufficient and incontrovertible.

“Complete evidence” is a term used in Civil Law systems to indicate evidence which is sufficient and which obliges the court to decide in favor of the party who presents it, but which may be rebutted; see Asser-Anema-Verdam, , 43.Google Scholar

“Free evidence” indicates that the court has the discretion to give the evidence the probative value it thinks appropriate.

4. 1968 B.W.

5. Art. 1978 B.W.; for a description of decisive and supplementary oath, see Part II of this paper.

6. Art. 1978 B.W.

7. Art. 1962 B.W.

8. Art. 1958 B.W.

9. Articles 1907–1909 B.W.

10. In 1922 art. 1933 B.W. which excluded oral testimony with regard to transactions where the value involved was higher than Dfl. 300,—; in 1923 the impeachment provisions of the Code of Civil Procedure; in 1934 art. B.W. which excluded parol evidence against the contents of an instrument.

11. Asser-Anema-Verdam, , 46–47Google Scholar; Pillo, , 19–20.Google Scholar

12. Asser-Anema-Verdam, , 80Google Scholar; Pitlo, , 35.Google Scholar

13. Asser-Anema-Verdam, , 255Google Scholar; Pitlo, , 23.Google Scholar

14. Asser-Anema-Verdam, , 255–259Google Scholar; Pitlo, , 85–86.Google Scholar

15. Mazeaud, , Leçons de droit civil, vol. 1, 415 (2d ed. 1959)Google Scholar mentions as reason for the distinction, that the parties can always incorporate their legal transaction in an instrument, so that it is not unreasonable to exclude “imperfect” evidence.

16. Gabolde, , in Planiol et Ripert, Traité pratique de Droit civil français, 2d part, 852 (2d ed. 1954).Google Scholar

17. Arts. 1361, 1363 and 1356 Code Civil.

18. Arts. 1319 and 1322 Code Civil.

19. To which may be added art. 283 Code de Procédure civile which contains precise rules on competency of witnesses.

20. Though there are no rules comparable to art. 1942 and 1944 B.W. in French law.

21. Esmein, Cours de droit civil approfondi, -E-, 308 (1956); Mazeaud, , op. cit. supra, 398–399Google Scholar; Gabolde, , op. cit. supra, 849.Google Scholar

22. Art. 1341 Code civile: “petites affaires” (small affairs), the value of which is under Frs. 5,000.—; art. 1347 Code civil: if there is a “begin of written evidence”, which is defined by the article as a document written by the party to be charged which makes it likely that the transaction has taken place; art. 1348 Code civil: if it was impossible to draw up a document.

23. Based upon art. 1341 Code civil and art. 109 Code de commerce is the exception pertaining to all commercial transactions. It has also been decided that parties may deviate from art. 1341 Code civil by agreement. See Mazeaud, , op. cit. supra, 331–332.Google Scholar

24. Schoenke-Schroeder-Niese, , Lehrbuch des Zivilprozeszrechts, 60 (8th ed. 1956)Google Scholar

25. Judicial notice, documents, oral testimony and party hearings.

26. Schoenke, , op. cit. supra, 255.Google Scholar

27. §§ 415–418 Zivilprozeszordnung.

28. The authenticity of on their tace valid public documents is presumed: § 437 Zvilprozeszordnung; the authenticity of private writings has to be proved: § 440 Zivilprozeszordnung.

29. Expert writings may take the place of expert testimony for example. See Schoenke, , op. cit. supra, 256.Google Scholar

30. Schoenke, , op. cit. supra, 60.Google Scholar

31. See Schoenke, , op. cit. supra, 261.Google Scholar

32. See Pillo, , 8Google Scholar; 1 Mazeaud, , Leçons de droit civil, 397 (2d ed. 1959)Google Scholar; Schoenke-Schroeder-Niese, , Lehrbuch des Zivilprozeszrechts, 43–44 (8th ed. 1956).Google Scholar

33. For a discussion of main features of German civil procedure as noted by American jurists, see Kaplan, Von Mehren and Schaefer, Phases of German Civil Procedure, 71 Harv. L. Rev., 1193 and 1443 (1958)Google Scholar; see also Ernst, , Die Stellung des Richters im Amerikanischen Zivilprozesz (diss. Johannes Gutenberg Universität Mainz, 1957)Google Scholar and Murray, , A survey of Civil Procedure Spain and some comparisons with Civil Procedure in the United States 37 Tul. L. Rev. 399–452 1963).Google Scholar

34. 34 Minn. L. Rev. 581, 584–586 (1950)Google Scholar; in An Approach to Rules of Evidence for Nonjury Cases, 50 A.B.A.J. 723 (1964), Davis fulminates against the situation that although a very great percentage of the trials are without jury, the American evidence rules are designed exclusively for jury trials.

35. cf. p. 293, supra.

36. In particular on relevancy, competency of evidence, impeachment, privileges, opinion evidence and hearsay.

37. The New Code of Evidence of the American Law Institute, 20 Tex. L. Rev. 661, 662–663 (1942).Google Scholar

38. Gard, , The New Uniform Rules of Evidence, 2 Kan. L. Rev., 333, 334 (1954).Google Scholar

39. Gard, , op. cit. supra, 337Google Scholar; compare § 286 Zivilprozeszordnung, , p. 295Google Scholar, supra.

40. Gard, , op. cit., supra, 342.Google Scholar

41. Some High Lights of the Uniform Evidence Rules, 33 Tex. L. Rev. 559, 573.Google Scholar

42. Battifol, , Traité élémentaire de Droit international privé, 809 (3d ed. 1959)Google Scholar; Lerebours-Pigeonniére, , Droit international privé, 527 (8th ed. 1962)Google Scholar; Perrot, , Le régime des preuves en droit international privé français, 1962 Journal de Tribunaux (Belgium), 273–274.Google Scholar

43. Op. cit. supra, 810–811Google Scholar; see also Perrot, , op. cit. supra, 275.Google Scholar

44. Op. cit. supra, 527–528.Google Scholar

45. Op. cit. supra, 812.Google Scholar

46. Op. cit. supra, 528–529.Google Scholar

47. La force probante des écrits en droit international privé français, 50 Revue critique de Droit international privé 1, 80–82 (1961).

48. Rigaux's article will be further discussed at p. 301–302, infra.

49. Op. cit. supra, 376.Google Scholar

50. Battifol, , op. cit. supra, 812Google Scholar; Perrot, , op. cit. supra, 276.Google Scholar

51. Battifol, , op. cit. supra, 813Google Scholar; Perrot, , op. cit. supra, 277Google Scholar; Perrot notes that privileges were formerly governed by the lex causae.

52. Riezler, , Internationales Zivilprozeszrecht (1949), 464–465Google Scholar and with regard to presumptions also 489; Kegel, , Das internationale Privatrecht im Einfuehrungs-gesetz zum B.G.B., 592 (1961).Google Scholar

53. So questions whether the burden shifts as a consequence of default, silence upon a question by court or opponent, obstruction of production of evidence by the opposing party, are to be answered by the lex fori; see Kegel, , op. cit. supra., 592.Google Scholar

54. Kegel, , op. cit. supra, 592Google Scholar; Riezler, , op. cit. supra, 470Google Scholar, on competency of witnesses and privileges, 474–475.

55. Riezler, , op. cit. supra, 478Google Scholar, Raape, , Internationales Privatrecht, 219 (4th ed. 1955)Google Scholar; Kegel, , op. cit. supra, 696–697Google Scholar. Kegel states as reason for the exception, that the provisions of a Statute of Frauds or of art. 1341 Code civil are to be regarded as form requirements.

56. Riezler, , op. cit. supra, 477Google Scholar; Kegel, , op. cit. supra 592Google Scholar. Kegel notes at 594, that legalization is mostly sufficient, but that it is not absolutely necessary.

57. Riezler, , op. cit. supra, 478, 481.Google Scholar

58. Cf. Perrot, , op. cit. supra, 274–275Google Scholar and Schoch, , Klagbarkeit, Prozeszanspruch und Beweis im Licht des internationalen Rechts, 133–134 (1934).Google Scholar

59. See Stumberg, , 136–140Google Scholar; Ehrenzweig, , 355Google Scholar; 31 C.J.S., 821.

60. Mulder, , 227Google Scholar; Asser-Anema-Verdam, , 60.Google Scholar

61. Kosters-Dubbink, , 494Google Scholar; Kisch, , Prae-advies Nederlandse Juristen Vereniging 1947, 37.Google Scholar

62. Though Dutch courts often pay lipservice to the decisoria-ordinatoria test, the cases are actually solved upon another basis. See e.g. the case cited in Part II of this paper. In that case competency of witnesses was relegated to the ordinatoria litis, it seems to me, because upon another ground it had been concluded that the lex fori should govern.

63. See for examples note 53, 295–296, supra.

64. La force probante des écrits en droit international privé français, 50 Revue critique du Droit international privé, 1 (1961).

65. Battifol, , Traité élémentaire de Droit international privé, 812 (3d ed. 1959)Google Scholar; Lerebours-Pigeonnière, , Droit international privé, 528–539 (8th ed. 1962).Google Scholar

66. Op. cit. supra, 23.Google Scholar

67. Which is answered by “yes” if one of the laws considers the form valid; by “no” if neither considers it valid.

68. Cf. Kosters-Dubbink, , 496, 497.Google Scholar

69. See Part II of this paper.

70. Idem.

71. Idem.

72. See writers cited by Rigaux, , op. cit. supra, 15–16.Google Scholar

73. See with Stumberg, , 133–177Google Scholar; and the writers cited in subsection 4.

74. Dicey, , Conflict of Laws, 1088 (7th ed. 1958).Google Scholar

75. See, for example, and Schoch, , op. cit. supra, 138–139.Google Scholar

76. See p. 83, nt. 1.

77. See Sedler's use of the Erie outcome as a test for conflicts purposes, p. 306, infra.

78. “Substance” and “Procedure” in the Conflict of Laws, 42 Yale, L. J., 333 (1933)Google Scholar, republished as chapter 6, of Cook, The Logical and Legal Bases of the Conflict of Laws (1942).

79. Substance and Procedure in the Conflict of Laws, 39 Mich. L. Rev, 392, 413, 418 (1941).Google Scholar

80. Cook in Yale, L. J., supra 346.Google Scholar

81. Supra, 416.Google Scholar

82. Choice of Law, 154.Google Scholar

83. Ailes, , op. cit. supra, 408.Google Scholar

84. Choice of Law, 158.Google Scholar

85. See p. 305. infra.

86. At some exceptional places however Morgan seems to take into consideration the bearing of a foreign rule. At 193 he says for example: “In some instances, however, the rule of the locus is definite and easily ascertainable and its obvious effect on the litigation is very material, if not decisive.”

87. See for an example of this kind of deliberations by Morgan, : Choice of Law, 191.Google Scholar

88. Morgan's article deals with inter-state rather than with international relations. It is undoubtedly true that by their legal education and by regular contact American judges are taking on any concept some notice of the law of the sister-state without explicitly going into it.

89. See Morgan, , Choice of Law, 194–195.Google Scholar

90. In Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 114 ALR 1487Google Scholar, it was held that where jurisdiction of a federal court is based on diversity of citizenship (the parties are citizens of different states), the court should apply as to questions of procedure federal law but otherwise the law of the state in which it is sitting.

91. Sedler, , 820Google Scholar. I do not think Sedler is quite right here. Though the contacts with the lex causae are substantial, apparently, the forum is always also concerned in a greater or less degree. See p. 310–311, infra.

92. Whereas, according to Sedler, matters of substance always affect the outcome substantially, with regard to procedural matters a preliminary investigation as to that effect is necessary. (Sedler's distinction between substantive and procedural matters (See Sedler, , 817)Google Scholar is similar to Morgan's (See p. 304, supra)).

93. Sedler, , 880.Google Scholar

94. Sedler, , 823.Google Scholar

95. Sedler distinguishes “strong procedural policy” from “public policy”. (See Sedler, , 824 and 816, nt 15)Google Scholar. He says that “public policy” operates only at the beginning of a case to exclude a claim which would violate a fundamental principle of justice of the forum.

96. Would not a logical consequence of the opposite view be that also substantive rules which are unfair according to the forum's concepts can be excluded even if they do not violate the forum's public policy?

97. See p. 310–311, infra.

98. 293 S. W. 2d 14 (Mo. Ct. App. 1956).

99. 125 F. Supp. 696 ( W.D. Ark. 1954).

100. 281 F. ad 401 (5th Cir. 1960).

101. Interesting as an illustration here are the remarks of a judge noted by Morgan, , Choice of Law, 191Google Scholar. The judge suggested that what really decided many cases was that the court was not convinced by certain witnesses, whereas to avoid to hurt their feelings, it gave as official ground of the decision a burden of proof rule.

102. Sedler, , 858.Google Scholar

103. Materielles Recht und Verfahrensrecht im Internationalen Privatrecht, 20 Zeitschrift für Ausländisches und Internationales Privatrecht, 1, 41 (1955).Google Scholar

104. Cf. Ailes, , op. cit. supra, 408Google Scholar, referred to at p. 304, supra.

105. Also the Second Restatement on Conflict of Laws applies this test in some instances. See, with regard to the burden of proof, §§ 599c an 599d of Tentative Draft, no. 11.

106. The res ipsa loquitur says that if the damaging object was under the supervision of the defendant or his servants and the accident would, ordinarily, noth ave happened if those who had the supervision had used proper care, proof of the injury only, affords evidence that the accident arose from want of care.

107. It may be that it is mere coincidence which of the parties is defendant and thus gets those favors, for example, where in a collision case both parties have suffered a loss.

108. The Continental writers who follow the decisoria litis-ordinatoria litis distinction. See, for example, Kosters-Dubbink, , 491–493Google Scholar: Perrot, , Le régime des preuves en droit international privé français, 1962 Journal de Tribunaux (Belgium), 273Google Scholar; Smits, , Internationaal Bewijsrecht in Burgerlijke Zaken, 3 (1885).Google Scholar

109. See, for example, also Bellini, Evidence in Comparative Private International Law, 2 U.W. Australia Ann. L. Rev. 330 (1953).Google Scholar

110. Ehrenzweig, , 331.Google Scholar

111. At 354.

112. At 270–273.

113. See §1. and §2.

114. See chapter IV.

115. The harmony of results policy underlies, of course, also the outcome determination tests treated in the preceding chapter, § 2.4.

116. The qualification does not seem much different from Sedler's “efficient operation”, see p. 306, supra; notice however, that in my view application of the lex fori is only justified when the chances are that thereby harmony of results will be furthered more than by application of the lex causae, and not where application of the foreign rule would make the trial improper according to the forum's concepts.

117. Noteworthy in this context is the dissertation of Von Craushaar, Die internationalrechtliche Anwendbarkeit deutscher Prozesznormen (1961).

Craushaar has investigated in how far German procedural law should be applied by German courts in cases where, in accordance with German conflicts rules the Austrian law of succession is applied. He proposes ( at p. 32) to further harmony of results in these cases by leaving aside, in principle, the special procedural rules — Craushaar means by “special” procedural rules those adapted to specific substantive law — of the lex fort (German Law) as well as those of the lex causae (Austrian law). He suggests to apply instead the general principles of German procedure as these have been established or can be gathered from German procedural law, Only in exceptional cases the special procedural rules of the lex fori or the lex causae should be applied. Craushaar concludes (at p.99) that in almost all cases which he studied in his dissertation his test provided adequate procedural rules, well adapted to the specific German-Austrian conflicts situation.

118. Cf. Brainerd Currie's “governmental interest” theory. According to Currie the proper approach in conflicts cases is to look in the first place to the law of the forum. Then, the policy underlying the forum rule should be examined and it should be determined whether in the light of “the relationship of the forum state to the case at bar—that is, to the parties, to the transaction, to the subject matter, to the litigation … the state has an interest in the application of its policy in this instance”. (Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, 26 U. Chi. L. Rev. 9, 10 (1958)Google Scholar. The lex fori should always be applied if the forum state has an interest, irrespective of whether a foreign state is interested at the same time, or not. Only where the forum is not and a foreign state interested, the foreign law should be applied. Currie has laid down his theory in the article cited above and many others. The theory has become the subject of extensive discussion in the United States. See the articles cited bij Ehrenzweig, Choice of Law: Current Doctrine and “True Rules”, 49 Calif. L. Rev. 240, 245 nt. 29 (1961).Google Scholar

The predominance of the lex fori is advocated not only by Currie but also by Ehrenzweig, see his article The Lex Fori—Basic Rule in the Conflict of Laws, 58 Mich. L. Rev. 637 (1960)Google Scholar, several other articles and his treatise.

119. See Part II of this paper.