1. The literature on the subject is vast; among recent studies may be cited Lauterpacht, , Recognition in International Law, Cambridge 1947Google Scholar, and Chen, , The International Law of Recognition, edited by Green, , London 1951.Google Scholar

2. Cp. Chen, , o.c. p. 238 ff.Google Scholar

3. Which may happen with regard to questions of pure fact, e.g. the date upon which a government must be considered to have actually established its control over the country concerned, which date may be of importance with regard to the extent of the retroactive effect of a recognition granted to such a government, see on these and similar questions Mann, , Judiciary and Executive in Foreign Affairs, in Transactions Grotius Society 1943, p. 143 ff.Google Scholar

4. Lauterpacht, Contra, o.c. p. 336 ffGoogle Scholar; see also the English case of A/S Tallina Laevauhisus v. Esthonian State Steamship Line, in which the Kings Bench (as it then was) refused to apply decrees of a de facto, in contradistinction to a de jare recognised government; this distinction was rejected by the Court of Appeal (1946), A(nnual) D (igest) 1946, 6.Google Scholar

5. In Salimoff v. Standard Oil Cy. of New York (1933) a.d. 1933/1934, 8.Google Scholar

6. In Banca de Bilbao v. Sancha and Rey (1938) a.d. 1938/1940, 29.Google Scholar

7. Cp. on this so-called recognition as a de facto-government, Chen, , o.c. p. 273 ffGoogle Scholar, François, , Handboek van het Volkenrecht (A Treatise on International Law) I, 2nd. ed. 1949, p. 181 ff.Google Scholar

8. It has been called the Stimson-doctrine after the Secretary of State who formulated it, cp. Chen, , o.c. p. 411 ffGoogle Scholar, Lauterpacht, , o.c. p. 409 ffGoogle Scholar; another American doctrine, the so-called Tobar-doctrine, makes the recognition of a revolutionary government dependent on the fulfilment of certain conditons, cp. François, , o.c. p. 188/189.Google Scholar

9. A famous example of such a “premature recognition” is the recognition by France of the independence of the American colonies, shortly after the commencement of their revolt against England; the latter country regarded this act as a casus belli.

10. This conclusion is supported by the text of the relevant judgments; however, some authors hesitate to attribute to the court the intention to lay down such a rule, and wonder whether the court did not actually confuse the admittance of de facto-existence with the granting of de facto-recognition, cp. Chen, , o.c. p. 276/277.Google Scholar

11. a.d. 1919/1922, 26; the same attitude has been explicitly or implicitly adopted in numerous other cases, cp. inter alia The Jupiter (Admiralty 1924/1927) a.d. 1925/1926, 100Google Scholar, Russian Commercial Bank v. Comptoir d'Escompte (House of Lords 1925) a.d. 1925/1926, 101Google Scholar, Employers Liability v. Sedgwick (House of Lords 1927) a.d. 1925/1926, 102Google Scholar, Princess Olga v. Weiss (Kings Bench 1929) a.d. 1929/1930, 60Google Scholar, Lazard Brs. v. Midland Bank Ltd. (House of Lords 1933) a.d. 1931/1932, 69Google Scholar, In re Russian Bank for Foreign Trade (Chancery 1933) a.d. 1933/1934, 151.Google Scholar

12. Cp. Bank of Ethiopia v. National Bank of Egypt and Liguori (Chancery 1937) a.d. 1935/1937, 38Google Scholar, enforcing an Italian decree in the face of counter measures by the still de jure recognised emperor after his flight from Ethiopia.

13. Cp. Banco de Bilbao v. Sancha and Rey, cited above, followed in The Arantzazu Mendi (House of Lords 1939), a.d. 1938/1940, 25Google Scholar, and in the Scottish case of the El Condado (1939) a.d. 1938/1940, 77.Google Scholar

14. Even with regard to Austrians residing abroad, cp. In the Matter of Mangold's Patent (Chancery 1950), I(nternational) L(aw) R(eports) 1951, 59.Google Scholar

15. Cp. A/S Tallina Laevauhisus v. Esthonian State Steamship Line, cited above.

16. Cp. the Elise (1948) a.d. 1948, 50Google Scholar; similarly, the High Court of Eire in the Ramava, A.D. 1941/1942, 20.Google Scholar

17. Cp. Anglo-Czechoslovak v. Janssen (1943) a.d. 1943/1945, 11Google Scholar, with regard to the German rule over Czechoslovakia.

18. Cp. Oetjen v. Central Leather Co. (Supreme Court 1918) 246 U.S. 297Google Scholar; see further Terrazas v. Holmes and Minera Ramos v. Bartlesville (both 1925) a.d. 1925/1926, 43 and 47.Google Scholar

19. Cp. Bourne v. Bourne (1924) A.D. supplement 1919/1942, 40.Google Scholar

20. Statement by judge Cardozo in Sokoloff v. National City Bank of New York (1924) a.d. 1923/1924, 19Google Scholar; see further, among others, Russian Reinsurance Co. v. Stoddard (1925) a.d. 1925/1926, 40Google Scholar, James v. Second Russian Insurance Co. (1925) a.d. 1925/1926, 42Google Scholar, Petrogradzky Bank v. National City Bank of New York (1928/1930) a.d. 1929/1930, 20Google Scholar, Banque de France v. Equitable Trust Co. of New York (1929) a.d. 1929/1930, 22.Google Scholar

21. Cp. on this inversion of the exception of public order Habicht, , The Application of Soviet Law and the Exception of Public Order, in 21 AJIL (1927) p. 238 ffGoogle Scholar, especially p. 252.

22. Cp. Salimoff v. Standard Oil Cy. of New York, cited above, Vladikavkazsky Rlw. Co. v. New York Trust Co. (1934) a.d. 1933/1934, 27.Google Scholar

23. Cp., inter alia, Dougherty v. Equitable Life Insurance Soc. (1934) a.d. 1933/1934, 28Google Scholar, U.S. v. Bank of New York and Trust Co. (1934/1936) a.d. 1933/1934, 29.Google Scholar

24. Cp. Bollock v. Soc. Générale (1941/1942) a.d. 1941/1942, 36.Google Scholar

25. In Johnson v. Briggs (1939) a.d. 1938/1940, 33.Google Scholar

26. In Amstelbank N. V. v. Guarantee Trust Co. of New York and in Kon. Lederfabriek “Oisterwyk” N.V. v. Chase National Bank of City of New York (both 1941) a.d. 1941/1942, 171 and 172.Google Scholar

27. In Werfet v. Zivnostenka Banka (1940) a.d. 1938/1940, 32Google Scholar, reversed on different grounds upon appeal (1941) a.d. 1941/1942, 17.

28. In Eck v. N.V. Nederlands-Amerikaanse Stoomvaartmy. (1944) a.d. 1946, 13.Google Scholar

29. Thus, a federal court of appeal in The Denny (1942) a.d. 1941/1942, 18Google Scholar, quashed the decison of the lower court which ignored Soviet law introduced in Lithuania on the ground of the non-recognition of the annexation of that country.

30. In re Graud's Estate (1943) a.d. 1943/1945, 10Google Scholar, Latvian State Cargo and Passenger S.S. Line v. Clark (1948) a.d. 1948, 16Google Scholar, with regard to Latvia, , The Maret (1944) a.d. 1943/1945, 9Google Scholar, A/S Merilaid & Co. v. Chase Nat. Bank of New York (1947) A. D. 1947, 6Google Scholar, with regard to Esthonia, U.S. Court of Claims in The Denny (1953) I.L.R. 1953, 193Google Scholar, with regard to Lithuania.

31. Cp. Latvian State Cargo & Passenger S.S. Line v. Mc. Grath (1951) I.L.R. 1951, 27.Google Scholar

32. Cp. the decisions in Bank of China v. Wells Fargo Bank & Union Trust Co. (1950) 45 AJIL (1951) 200 and 47Google ScholarAJIL (1953) 148.Google Scholar

33. E.g. some decisions on the applicability of Soviet law after the recognition of the USSR; but recently it has been held that, after recognition has been granted, courts should not ignore the relevant foreign law, cp. In re Arbulich's Estate (1952) I.L.R. 1952, 92Google Scholar, with regard to Yugoslavian, and Frazier et Al. v. Foreign Bondholders Protective Council Inc. et Al. (1953/1954) I.L.R. 1954, 16Google Scholar, with regard to Peruvian legislation.

34. Cp. Court of Appeal Aix 12 23, 1925 (Ropit-case) a.d. 1925/1926, 17Google Scholar, confirmed by Court of Cassation 03 5, 1928, a.d. 1927/1928, 43Google Scholar; Court of Appeal Paris 04 30, 1926, a.d. 1925/1926, 18Google Scholar and June 13, 1928, a.d. 1927/1928, 42; Civil District Court of the Seine 12 24, 1926, a.d. 1927/1928, 44Google Scholar and March 7, 1929, a.d. 1929/1930, 150; Commercial District Court of the Seine 12 20, 1929, a.d. 1929/1930, 24.Google Scholar

35. Commercial District Court of the Seine 01 18, 1940Google Scholar, A.D. supplement 1919/1942, 12.Google Scholar

36. Court of Cassation 01 10, 1951Google Scholar, Journal Clunet 1951, 168.Google Scholar

37. Cp. Court of Appeal Bordeaux 03 28, 1938, a.d. 1938/1940, 55.Google Scholar

38. Cp. Court of Appeal Genoa 03 7, 1930, a.d. 1929/1930, 23.Google Scholar

39. Cp. Civil District Court Brussels 11 10, 1923Google Scholar, a.d. 1923/1924, 22, June 5, 1925, a.d. 1925/1926, 20 and June 16, 1928, a.d. 1927/1928, 45; Court of Appeal Brussels 06 11, 1936, a.d. 1935/1937, 77.Google Scholar

40. Civil District Court Brussels 02 28, 1927, a.d. 1927/1928, 46.Google Scholar

41. Court of Appeal Brussels 06 25, 1947Google Scholar, Journal Clunet 1950, 865Google Scholar, and Civil District Court Brussels 04 5, 1951Google Scholar, ibidem 1953, 381, observing that “le droit civil et la solution d'un litige civil doivent répondre à une situation existant dans la réalité du fait, plutôt qu'à des conjonctures diplomatiques”.

42. Cp. Federal Court 06 4, 1926Google Scholar, a.d. 1925/1926, 23, and October 26, 1929, a.d. 1929/1930, 62; See on Swiss practice Zellweger, , Die völkerrechtliche Anerkennung nach Schweizerischer Staatenpraxis, in Schweizerisches Jahrbuch für internationales Recht 1954, p. 11 ff, especially p. 26 ff.Google Scholar

43. Decision of October 16, 1925, Jur. Wochenschrift 1926, 1986.Google Scholar

44. It is not completely clear whether, before the recognition of the Soviet government in the Rapallo-treaty of 1922, German courts applied Soviet law on the ground of the de facto existence of the Soviet regime, or whether they considered this regime as being implicitly recognised as a consequence of the Brest Litovsk Treaty of 1917, cp. Melchior, , Die Grundlagen des deutschen internationalen Privatrechts, Berlin/Leipzig 1932, p. 83/85CrossRefGoogle Scholar; Breer, , Die Anwendung sowjetrussischen Rechts in der Praxis der deutschen, englischen und französischen Gerichte, Würzburg 1933.Google Scholar

45. Cp. County Court Göttingen 05 25, 1948, a.d. 1948, 17Google Scholar; Supreme County Court Celle 02 11, 1949Google Scholar, Monatschrift für deutsches Recht 1949, 356Google Scholar; Supreme County Court Kassel 02 12, 1949Google Scholar, Neue Juristische Wochenschrift 1949, 672.Google Scholar

46. County Court Düsseldorf 02 18, 1955Google Scholar, ibidem 1955, II, 1076.

47. Cp. Higher Court of Appeal Berlin West 12 15, 1950Google Scholar, I.L.R. 1951, 43Google Scholar, and March 29, 1951, Journal Clunet 1951, 1192Google Scholar; Federal Supreme Court 02 11, 1954Google Scholar, I.L.R. 1954, p. 43Google Scholar; Hahnenfeld, , Sovjetzone — Inland oder Ausland? in Neue Juristische Wochenschrift 1956, p. 164.Google Scholar

48. Cp. for examples the Collection of Decisions on German Private Interzonal Law 1945–1953, 2 vol., Berlin/Tübingen 1956/1957.Google Scholar

49. District Court Dordrecht 01 12, 1927Google Scholar, (Weekblad van het Recht) (Weekly Law Review) 11625; Court of Appeal Amsterdam 11 4, 1942Google Scholar, N(ederlandse) J(urisprudentie) (Dutch Law Reports) 1943, 496Google Scholar; but District Court The Hague 03 9, 1933Google Scholar, W. 12589Google Scholar, N.J. 1933, 1662Google Scholar, confirmed Court of Appeal The Hague 06 3, 1937Google Scholar, N.J. 1937, 1168Google Scholar, only referred to the possibility of applying decrees of a non-recognised government argumentandi gratia, avoiding a decision on this issue; see on Dutch practice in general Tammes, , Netherlands Courts and International Recognition, in Symbolae Verzijl, The Hague 1958, p. 362 ff.Google Scholar

50. Court of Appeal Amsterdam 12 3, 1942Google Scholar, N.J. 1943, 340Google Scholar, and, implicitly, Court of Appeal The Hague 01 20, 1950Google Scholar, N.J. 1950, 752.Google Scholar

51. President District Court Harlem 07 24, 1937Google Scholar, N.J. 1937, 863Google Scholar; similar decrees were upheld in cases in which at the time they were issued the Spanish government still exercised effective control over the territory concerned, cp. President District Court Rotterdam 08 2 and 3, 1937Google Scholar, N.J. 1937, 912 and 913Google Scholar, President District Court Middelburg 10 22, 1938Google Scholar, N.J. 1939, 96Google Scholar; however, in the former cases, the circumstance that the republican government remained the recognised government of Spain was held to constitute a ground for continuing to grant effect to the decree even after that government had lost its effective power.

52. Cp. on the one hand decisions of August 30, 1951, I.L.R. 1957, 67Google Scholar, and September 14, 1951, Rechtsherstel Vol. VI, 51/110Google Scholar, on the other hand decision of September 13, 1951, I.L.R. 1957, 68.Google Scholar

53. Court of Appeal Arnhem 11 18, 1952Google Scholar, N.J. 1953, 438Google Scholar, Court of Cassation 11 2, 1954Google Scholar, N.J. 1955, 4.Google Scholar

54. District Court Arnhem 01 17, 1952Google Scholar, N.J. 1952, 260.Google Scholar

55. District Court The Hague 12 11, 1956Google Scholar, this Review 1957, 428.Google Scholar

56. Decisions of June 29, 1956 (special chamber of revision) N.J. 1956, 471Google Scholar, annotated by Ruling, and July 17, 1956, mentioned in 53 AJIL (1959) 462Google Scholar; also, implicitly, Court of Appeal The Hague June 24, 1955, cited below (note 60).

57. Cp. on this analogy and for a criticism of this application of the doctrine of non-recognition, as well as for a survey of preceding decisions, the above-mentioned annotation by Röling; see below for a comparable attitude of the Swiss federal court in matters of war-time annexation.

58. However, in its decision of May 27, 1953, Rechtsherstel VIII, 53/340Google Scholar, The War Claims Tribunal, before proceeding to an assessment of the foreign situation, in casu the German annexation of Sudetenland, stated that the executive had not followed an explicit non-recognition policy with regard to that situation; it may therefore be possible that, had such a policy existed, the Tribunal would have taken guidance from it (actually, the tribunal did not consider the annexation to constitute an illegal act and applied the nationality decree issued as a result of the annexation).

59. Court of Appeal Amsterdam 06 17, 1954Google Scholar, N.J. 1954, 646.Google Scholar

60. District Court Rotterdam 12 30, 1953Google Scholar, N.J. 1954, 769Google Scholar, confirmed Court of Appeal The Hague 06 24, 1955Google Scholar, this Review 1958, 92Google Scholar, on slightly different grounds, but without seeming to attach decisive importance to the recognition, i.e. that Lithuania did not present a case of annexation, but of a lawful decision of a foreign state aiming at its incorporation in another state; it may be argued a contrario that the court would not have applied Soviet law if it had considered the situation in question to involve a case of annexation.

61. The latter opinion is nowadays prevalent, cp. François, , o.c. p. 184Google Scholar, Chen, , o.c. p. 166 ffGoogle Scholar, cp. also in the same sense the Resolution of the Institut de Droit international 1936Google Scholar, Annuaire 1936 II p. 300Google Scholar ff; the former opinion is still adhered to by Lauterpacht, , o.c. p. 70 ff.Google Scholar

62. This submission is made by Chen, , o.c. p. 160.Google Scholar

63. Thus, the Mixed Court of Appeal of Egypt 06 23, 1927Google Scholar, a.d. 1927/1928, 41, held that the non-recognition of the Soviet government could not prevent the court from taking notice of Soviet law as the lex contractus designated by the parties; cp. also German Supreme Court December 13, 1930, Warneyers Rechts-sprechung 1930, 78Google Scholar; also in the above-cited case of Dougherty v. Equitable Life Insurance Sac., quoted by Chen in support of his submission, the will of the parties played a part.

64. Supreme Court 05 20, 1930, a.d. 1929/1930, 9.Google Scholar

65. Court of Cassation 06 25, 1924Google Scholar, a.d. 1923/1924, 5.

66. U.S. v. Belmont (1937) a.d. 1935/1937, 15Google Scholar, and U.S. v. Pink (1942) a.d. 1941/1942, 13.Google Scholar

67. Cp. Stevenson, , Effect of Recognition on the Application of Private International Law Norms, in 51 Columbia Law Review (1951) p. 710 ff.Google Scholar; see also, for a summary of this criticism, Briggs, , The Law of Nations, 2nd. ed.New York 1952, p. 191.Google Scholar

68. Cp. Steingut v. Guarantee Trust Co. of New York (1944) a.d. 1943/1945, 7.Google Scholar

69. Cp. the courts of New York in U.S v. New York Trust Co. (1946) a.d. 1946, 12Google Scholar, U.S. v. National City Bank of New York (1950) 45 AJIL (1951) 196.Google Scholar

70. Some authors, however, have interpreted the Pink-case as laying down a general rule that extraterritorial effect may not be denied to acts of a recognised government on grounds of public policy; that this is too wide an interpretation has been confirmed by the practice of courts, cp. Stevenson, , o.c. p. 719/724.Google Scholar

71. See upon this doctrine in general Mann, , The Sacrosanctity of the Foreign Act of StateGoogle Scholar, in 59 Int. Law Quarterly (1943) p. 42 ff and 155 ffGoogle Scholar, Van Panhuys, , De beoordeling door de nationale rechter in rechtsgedingen tussen particulieren van handelingen van vreemde staten (The judgment by national courts of acts of foreign states in litigations between private parties), in R. M. Themis 1953, p. 217ffGoogle Scholar; for a survey of court decisions see Erades, , Het rechtseffect van nationalisatiemaatregelen genomen door vreemde Staten (The legal Effects of Nationalisation Measures taken by Foreign States) in Mededelingen van de Nederlandse Vereniging voor tnternationaal Recht (Communications of the Netherlands Association of International Law) 32 (1954) p. 1 ff, on p. 5/6.Google Scholar

72. Statement of the Supreme Court of the United States in the classic case of Underhill v. Hernandez (1897) 168 U.S. 250.Google Scholar

73. Although it has sometimes been doubted whether legislation is also covered by the term “act of state”, cp. the quotation by Kollewijn, , “Nationalisation” without Compensation and the Transfer of Property, in this Review 1959, p. 140 ff, on p. 164, nt. 1.Google Scholar

74. Cp. Kleve et Al. v. Basler Lebensversicherungsgesellschaft (1943), a.d. 1943/1945, 2Google Scholar; Block v. Basler Lebensversicherungsgesellschaft, (1947), AJIL 1948, 502.Google Scholar

75. Cp., inter alia, above-cited decisions, summarised by Stevenson, , o.c. p. 732/733.Google Scholar

76. Thus, in Shapleigh v. Mier (1937) a.d. 1935/1937, 14Google Scholar, the Supreme Court assumed, argumentandi gratia, that it could review the legality of foreign expropriation law. In the case at issue there was no need to decide on this point, since it had not been proved that the foreign law, in casu Mexican law, could be held to be inconstitutional; moreover, the court could not be regarded as judging foreign law in the strict sense of the word, but rather the law of an antecedent government, the territory affected having been transferred to the United States. And in Plesch et Al. v. Banque nationale de la République d'Haïti (1947/1948) a.d. 1948, 7Google Scholar, a New York court considered unenforceable, as against public policy, a Haitian confiscatory decree with regard to assets which, at the time of the enactment of the decree, were deposited by a bank in New York, but were later transferred to Haïti. In this case the special circumstance that the assets were originally situate in New York and were later brought to Haïti by the depositary with the knowledge that they would there be regarded as being confiscated, appears to have influenced the decision of the court. In the above-cited case of Werfel v. Zivnostanka Banka the court referred to the possibility of not respecting foreign confiscatory decrees which violated international law, but did not decide on this issue, as it did not hold the relevant decree to be contrary to international law.

77. The submission that such an exception exists is made by Stevenson, , o.c. p. 730Google Scholar; but the cases he cites do not seem to be convincing; thus, in the Kensington (Supreme Court 1901) 183 U.S. 263Google Scholar, the law chosen by the parties to govern a contract of carriage to New York was set aside on grounds of public policy with regard to the execution of the contract within the United States; in the above-cited case of Banque de France v. Equitable Life Insurance Cy. the court based itself upon the inversion of public policy rule as enunciated in the also above-cited Sokoloff-case.

78. Cited above; cp. Mann, l.c., and other above-cited decisions.

79. See for the first proposition Nair, Mac, The Legal Effects of War, 3rd. ed.Cambridge 1948, p. 374/377Google Scholar; for the second proposition Lipstein, , Recognition of Governments and the Applicability of Foreign LawsGoogle Scholar, in Transactions Grotius Society 1949, p. 157 ff.Google Scholar

80. Thus, the formal validity was discussed in the above-cited case of Bank of Ethiopia v. National Bank of Egypt and Liguori; it was also discussed in the above-cited case of Banca de Bilbao v. Sancha and Rey with regard to a measure taken by the Basque government, an autonomous but non-sovereign body in Spain, but the court refused to attach consequences to the alleged invalidity of a decree issued by the Spanish government proper; but In re Amand (1941/1942) a.d. 1941/1942, 28, the Kings Bench examined the validity of Dutch war-time measures; the special circumstances of the case, especially the absence of a Dutch judiciary before which the legality of the measures could be contested, may have influenced the decision of the court; however, a Canadian court invoked the Amand-case for asserting that it was empowered to examine the validity of Soviet law in Esthonia, cp. the above-cited case of the Elise.

81. Chancery Division In re claim by Helbert Wagg (1956) Ch. 323.Google Scholar

82. Mann, , International Delinquencies before Municipal Courts, in Int. Law Quarterly (1954) p. 181 ff, on p. 199.Google Scholar

83. Cp. Court of Appeal Poitiers 12 20, 1937Google Scholar, a.d. 1935/1937, 196Google Scholar, and Court of Appeal Bordeaux 03 28, 1938Google Scholar, Droit maritime français 1938, 168Google Scholar; but an example of examination of the formal validity of foreign law is District Court Annecy 05 13, 1903Google Scholar, Journal Clunet 1903, 819Google Scholar; and the Commercial District Court Marseilles May 25, 1937, a.d. 1935/1937, 68, implicitly seems to have held itself capable of examining also the substantial validity of a confiscatory measure taken by the Catalonian government; it should be noted, however, that this government did not enjoy international legal status, but constituted an autonomous part of the Spanish republic; the court was therefore not confronted with an act of a sovereign power.

84. Cp. Commercial District Court Marseilles May 25, 1937, above-cited, Court of Appeal Aix 03 25, 1939Google Scholar, a.d. 1938/1940, 10, and Court of Cassation 03 14, 1939Google Scholar, a.d. 1938/1940, 54; with regard to Soviet measures see decisions cited above.

85. Cp. Supreme Court of the Reich 10 8, 1918Google Scholar, Entsch. Strafsachen 52, 308Google Scholar, County Court Hamburg 06 13, 1924Google Scholar, Niemeyers Zeitschr. für internationales Recht 1925, 465Google Scholar, and, with regard to measures taken in the Soviet zone of Germany County Court Berlin West 04 25, 1951Google Scholar, Collection of Decisions on Private Interzonal Law, I, 3Google Scholar, County Court Duesseldorf 08 11, 1950Google Scholar, ibidem 13.

86. Cp. County Court Berlin West 06 16, 1952Google Scholar, ibidem 6, Supreme County Court Oldenburg 11 30, 1953Google Scholar, ibidem 8b, and implicitly and within the limits of the relevant foreign laws, Federal Supreme Court 02 8, 1957Google Scholar, Monatschr. für deutsches Recht 1957, 663Google Scholar; although these decisions may have been influenced by the special circumstances of the partition of Germany, this does not appear from their motivation.

87. Cp. Supreme County Court Neuremberg 09 19, 1949Google Scholar, Collection I, 5 and 07 10, 1953Google Scholar, ibidem 9; Supreme County Court Brunswick 06 3, 1947Google Scholar, ibidem 11; County Court Mannheim 10 12, 1950Google Scholar, ibidem 7; Supreme County Court Hamburg 05 8, 1951Google Scholar, ibidem 7a.

88. Cp. County Court Berlin 11 1, 1928Google Scholar, Journal Clunet 1928, 184Google Scholar, and December 11, 1928, Zeitschr. für Ostrecht 1929 II, 1366.Google Scholar

89. Cp. Raape, , Internationales Privatrecht, 4th ed.Berlin/Frankfurt a/M. 1955, p. 619/620.Google Scholar

90. The Rapallo-rule was also extended to confiscations affecting property of foreigners who were not German nationals, cp. the above-cited decision of County Court Hamburg 06 13, 1924.Google Scholar

91. Thus, German courts have occasionally recognised foreign confiscations affecting property of German nationals, where the property affected was held by German refugees and had passed to other German refugees, cp. County Court Hildesheim 11 18, 1947Google Scholar, Zeitschr. für ausländisches und internationales Privatrecht 1949/1950, 137Google Scholar, followed by County Court Cottbus 04 4, 1950Google Scholar, Zeitschr. für ausländisches öffentliches Recht und Völkerrecht 1951/1952, 264Google Scholar; see on the interpretation of the Hildesheim-case as based upon the absence of a link with German ordre public County Court Berlin West 06 16, 1952Google Scholar, Collection I, 6Google Scholar, which also (p. 13) summarises other decisions.

92. Cp. decision of October 28, 1948, a.d. 1948, 11.

93. Cp. District Court Bois-le-Duc 03 7, 1919Google Scholar, W. 10497Google Scholar, N.J. 1919, 461Google Scholar, and District Court Dordrecht 11 17, 1920Google Scholar, W. 10056Google Scholar, N.J. 1921, 387Google Scholar, on acts of the occupying power in Belgium, and Court of Appeal Bois-le-Duc 04 28, 1931Google Scholar, W. 12381Google Scholar, N.J. 1932, 44Google Scholar, on German court decisions.

94. Cp. President District Court Rotterdam 09 1, 1938Google Scholar, N.J. 1939, 115Google Scholar, at least with regard to a dispute between private parties, and implicitly and not without some hesitation President District Court Arnhem 06 13, 1939Google Scholar, N.J. 1940, 19Google Scholar, confirmed Court of Appeal Arnhem 09 19, 1939Google Scholar, N.J. 1940, 20Google Scholar, but on somewhat different grounds and without deciding on the question concerning the review of the legality of the foreign act.

95. President District Court Middelburg 08 2, 1938Google Scholar, N.J. 1938, 790Google Scholar, President District Court Rotterdam 07 31, 1939Google Scholar, N.J. 1939, 747Google Scholar, Court of Appeal The Hague 12 4, 1939Google Scholar, N.J. 1940, 27Google Scholar, confirmed Court of Cassation 02 7, 1941Google Scholar, N.J. 1941, 923Google Scholar, but without deciding whether or not the act of state doctrine is a rule binding upon the courts; Court of Appeal Amsterdam 12 3, 1942Google Scholar, N.J. 1943, 340Google Scholar, and February 8, 1951, N.J. 1951, 129.Google Scholar

96. See the judgments of the Court of Cassation 03 13, 1936Google Scholar, N.J. 1936, 280 and 281Google Scholar, with regard to the applicability of the Joint Resolution of the Congress of the United States concerning the gold clause.

97. Cp. decisions cited below, note 134.

98. Cp. judgment of June 25, 1924, Foro Italico 1924, 777.Google Scholar

99. Judgment of September 13, 1954, Foro Padano 1954 I 1053 (1060).

100. A contrary view had been taken by Civil District Court Rome 01 26, 1923Google Scholar, Journal Clunet 1924, 257.Google Scholar

101. President District Court Venice 03 11, 1953Google Scholar, Foro Italico 1953 I 719.Google Scholar

102. Actually, the court held these measures to be valid, both formally and substantially, and not contrary to ordre public.

103. Cp. Court of Appeal Brussels 07 7, 1937Google Scholar, a.d. 1935/1937, 94, with regard to Spanish requisition decrees; President Civil District Court Antwerp 02 26, 1939Google Scholar, Jurisprudence du Port d'Anvers 1939, 249Google Scholar, with regard to Mexican nationalisation decrees; a different view was adopted by Court of Appeal Brussels 01 31, 1948Google Scholar, a.d. 1948, 66, but underlining the special circumstances of the case (German war-time measures).

104. Cp. notably the above-cited Antwerp decision.

105. See for a survey of recent literature, especially with regard to the influence of the doctrine on the application of foreign confiscatory measures, Kollewijn, , o.c. p. 164 ff.Google Scholar

106. See for a discussion and criticism of various arguments put forward in favour of the doctrine Mann, , Sacrosanctity, passimGoogle Scholar; see for the distinction between jurisdiction ratione personae and ratione materiae the below-cited article by Neu-mayer (note 110).

107. Cp. Stevenson, , o.c. p. 714/715Google Scholar; this motivation is to be found in several above-cited American decisions.

108. Cp. Miss Morgenstern, , Recognition and Enforcement of Foreign Legislative, Administrative and Judicial Acts which are contrary to International Law, in 4 Int. Law Quarterly (1951) p. 326 ffGoogle Scholar; Stevenson, , o.c. p. 730 ffGoogle Scholar, Van Panhuys, , l.c.Google Scholar, and the authors cited by him.

109. Cp. Van Panhuys, , l.c.Google Scholar, Lippstein, , l.c.Google Scholar

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111. Cp. the federal case of Bernstein v. Van Heyghen frères (1947) a.d. 1947, 5.Google Scholar

112. Quoted by Mann, , International Delinquencies p. 201.Google Scholar

113. Cp Commercial District Court Marseilles 04 23, 1925Google Scholar, and Court of Appeal Aix 12 23, 1925Google Scholar, in the full reports in Journal Clunet 1925, 391 and 1926, 667.Google Scholar

114. Court of Cassation 03 5, 1928Google Scholar, Journal Clunet 1928, 674.Google Scholar

115. Cp. some above cited West-German decisions concerning the examination of East-German acts; the conclusion which Stevenson, , o.c. p. 714 ffGoogle Scholar, draws, not without hesitation, from the above-cited Salimoff case, viz. that American courts would not apply the doctrine to acts of unrecognised governments, finds but feeble support in the decision as reported.

116. In the same sense Mann, , International Delinquencies p. 194Google Scholar; Article 1 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws of 04 12, 1930Google Scholar, League of Nations Treaty Series 179–89Google Scholar, expressly provides that the recognition of foreign nationality laws is subject to their being consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality.

117. Cp. on the formulation of these minimum standards by international courts Schwarzenberger, , International Law, Vol. I, 3rd ed.London 1957, p. 200/207.Google Scholar

118. Cp. on the significance of human rights for international law Lauterpacht, , International Law and Human Rights, London 1950Google Scholar; examples of court decisions in which human rights were enforced as forming part of international law in accordance with the Charter of the United Nations are the Canadian case In re Drummond Wren, A.D. 1943/1945, 50Google Scholar, and the Californian case cited by Kelsen, , Principles of International Law, New York 1952, p. 144.Google Scholar

119. Judgment of June 15, 1934, a.d. 1933/1934, 115; but in a later judgment this court seems to have proceeded from a different view, cp. Decision of September 23, 1949, a.d. 1949, 52, concerning the validity under international law of Austrian nationality legislation.

120. I.L.R. 1953, 305Google Scholar; cp. for a survey and criticism of similar views Kollewijn, o.c.; as a matter of fact, the Tokyo courts reached the conclusion that, even if the alleged violation of international law could have invalidated the transfer of property, the plea could not succeed because in casu international law could not be regarded as violated.

121. Cp. Kollewijn, , o.c. p. 164 ffGoogle Scholar. and the authors cited by him in support of the view that municipal courts should repudiate foreign law which violated international law; especially Oppenheim-Lauterpacht, , International Law Vol. I, 8th ed.London 1955, p. 267/270Google Scholar, give an excellent summary of the question.

122. Cp. Verzijl, , The Relevance of Public and Private International Law respectively for the Solution of Problems arising from Nationalization of Enterprises, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Festgabe Makarow) 1958, p. 531 ff, on p. 542.Google Scholar

123. Cp. among others, Oppenheim-Lauterpacht, , l.c.Google Scholar, Schnitzer, , Internationales Privatrecht, vol. 1, 4th ed.Basle 1957, p. 204/205.Google Scholar

124. Civil District Court of the Seine July 13, 1915, Revue critique 1915/1916, 67.Google Scholar

125. In re Fried. Krupp Aktiengesellschaft (1917) 2 Ch. 188.Google Scholar

126. Supreme Court June 13, 1934, a.d. 1933/1934, 217.

127. Court of Appeal Brussels March 5, 1952, confirmed Court of Cassation March 26, 1953, Journal Clunet 1954, 420Google Scholar, on the ground, inter alia, that the finding of the lower court constituted a statement of fact which, consequently, could not be reviewed.

128. Cp. the above-cited decisions; see on the special problems concerning the application of German nationality laws Parry, , The Duty to Recognise Foreign Nationality Laws, in Zeitschr. für ausländisches öffentliches Recht und Völkerrecht (Festgabe Makarow) 1958, p. 337 ff, especially p. 352 ff.Google Scholar

129. County Court Kassel July 20, 1948, Zeitschrift für ausl, und int. Privatrecht, 1949, 138Google Scholar, District Court Dingolfing 12 7, 1948Google Scholar, a.d. 1948, 12, Court of Appeal Nueremberg 06 1, 1949Google Scholar, a.d. 1949, 14.

130. The Rose Mary (1953) AJIL (1953) 325Google Scholar; see for a contrary conclusion the above-cited decisions of the Tokyo-courts.

131. David v. Veitscher A.G. (1944) a.d. 1943/1945, 3.Google Scholar

132. Judgment of October 3, 1923, Jur. Wochenschrift 1924, 667.Google Scholar

133. High Court of Appeal Berlin 04 1, 1926Google Scholar, ibidem 1926, 2002.

134. President District Court Amsterdam 12 22, 1958Google Scholar, N.J. 1959, 73Google Scholar; on the interpretation of this judgment Kollewijn, , o.c. p. 156/157Google Scholar; since, Court of Appeal Amsterdam June 4, 1959, N.J. 1959, 350, has upheld the President's judgment on both grounds, declaring itself expressly competent to examine the validity of foreign law in the light of international law.

135. Cp. Oppenheim-Lauterpacht, , o.c. p. 328/330Google Scholar; West German courts have repeateoly underlined that the rule that confiscatory measures have no extraterritorial effect is a rule of public, as distinguished from private international law, cp. Collection of Decisions on Private Interzonal Law Vol. I, 16, Vol. II, 365, 395, 400a, 402b, 413, 418a, 418b, 422Google Scholar; however, although the principle that a state should not perform acts of sovereignty within the jurisdiction of other states may be held to constitute a rule of public international law, the application of this principle with regard to foreign law belongs to the area of private international law, cp. Wolff, , Private International Law, 2nd. ed.Oxford 1950, p. 171Google Scholar, and, for a discussion of the interaction of public and private law elements in this matter, Niederer, , Einführung in die allgemeinen Lehren des internationalen Privatrechts, 2nd. ed.Zürich 1956, p. 307 ff.Google Scholar

136. Court of Appeal Paris 02 8, 1947Google Scholar, Dalloz 1947, 240Google Scholar; however, Court of Cassation November 28, 1946, Dalloz 1947, 61Google Scholar, did not object against applying the law of the Control Council to former German subjects residing outside Germany; see on these decisions also Miss Morgenstern, , o.c. p. 336/339Google Scholar; on the problems concerning the application of the Control Council Law by foreign courts in general cp. Parry, l.c.

137. Cp. the above-cited decisions, notably with regard to confiscations in Russia, Spain and Germany; but see the contrary decision of the Court of Appeal of Rouen, cited below (note 141).

138. Court of Appeal Paris October 29, 1949, a.d. 1949, 7, Revue critique 1949, 650Google Scholar, basing this application of ordre public upon article 1 of the Ordinance of April 21, 1945, declaring null and void acts of spoliation committed by the enemy, “en conséquence de mesures exorbitantes du droit commun”.

139. This consequence is, however, accepted by several authors, cp. Seidl-Hohenveldern, , Internationales Konfiskations- und Enteignungsrecht, Berlin-Tübingen 1952Google Scholar; see for a survey and criticism of similar views, Adriaanse, , Confiscation in Private International Law, The Hague 1956CrossRefGoogle Scholar; see also Kollewijn, o.c.

140. Holzer v. Deutsche Reichbahn Gesellschaft (1938) a.d. 1938/1940, 91.Google Scholar

141. Court of Appeal Rouen July 27, 1943, cited and criticised by Niboyet, , Traité théorique et pratique de droit international privé français IV, p. 437Google Scholar; it has been suggested by Seidl-Hohenveldern, , o.c. p. 36/37Google Scholar, that in several cases in which French courts denied effect to foreign confiscatory measures on the ground of ordre public, the fact that interests of French nationals were involved has played a part.

142. Decisions of courts of Bremen, Known to the present writer only from press releases; see also the above-mentioned practice of German courts with regard to ordre public.

143. District Court Arnhem 05 10, 1938Google Scholar, N.J. 1938, 969Google Scholar; but even if ordre public would have been involved, the Court might have felt bound to apply German law for the reasons stated below.

144. Convention of June 12, 1902, Nouveau Recueil Général 2–31–715.Google Scholar

145. Application of German racial legislation, even with regard to Dutch parties, by District Court Amsterdam 01 31, 1938Google Scholar, N.J. 1938, 331Google Scholar, District Court Arnhem 03 2, 1939Google Scholar, N.J. 1939, 930.Google Scholar

146. In the same sense Mann, , International Delinquencies p. 191.Google Scholar

147. It falls outside the scope of this paper to discuss the question whether and to what extent respect for human rights must be considered to constitute a principle of international law before its promulgation in the Charter of the United Nations; it is only submitted that, nowadays, this principle may be successfully invoked in order to repudiate legislation similar to the nazi-laws, whereas the application of ordre public within the context of the Marriage Convention would still present the same difficulties.

148. See on these questions Nair, Mac, o.c. p. 319 ff.Google Scholar

149. Convention of October 18, 1907, Nouveau Recueil General 3–3–461.Google Scholar

150. Cp. District Court Breda 05 22, 1917Google Scholar, N.J. 1917, 594Google Scholar, District Court Harlem 10 9, 1917Google Scholar, N.J. 1917, 1079.Google Scholar

151. Cp. Aboitiz & Co. v. Price (U.S. District Court Utah 1951) I.L.R. 1951, 182.Google Scholar

152. In State of the Netherlands v. Federal Reserve Bank of New York and Archimedes (Circuit Court of Appeal 2nd Ct. 1953) 47 AJIL (1953) 496.Google Scholar

153. Judgment of July 20, 1955, Revue critique 1956, 480Google Scholar; however, on this point the Supreme Court did not explicitly confirm the findings of the court below.

154. Cp. Federal Court June 3, 1948, a.d. 1948, 150, applying the federal decree declaring null and void acts of spoliation carried out by the Nazi-regime in violation of international law.

155. See for an analysis of Swiss practice Sauser-Hall, , L'occupation de guerre et les droits privés, in Schweizerisches Jahrbuch für internationales Recht 1944, p. 58 ff, especially p. 105 ff.Google Scholar

156. Cp. François, , o.c. I, p. 76/77.Google Scholar

157. Judgment of September 21, 1948, a.d. 1948, 177; however, in 1943, the federal court validated German measures taken in the annexed territory of Alsace-Lorraine, cp. Sauser-Hall, l.c., who cites and criticises this judgment as constituting an unjustified exception to the rule.

158. Cp. on these problems Nair, Mac, o.c. p. 355 ff.Google Scholar

159. (1941/1942) a.d. 1941/1942, 4.

160. With regard to the similar British practice concerning the legislative capacity of the Norvegian government-in-exile see Lorentzen v. Lydden & Co. Ltd (1942) a.d. 1941/1942, 34.Google Scholar

161. Judgment of February 2, 1954, I.L.R. 1954, 25.Google Scholar

162. (1951) I.L.R. 1951, 174.Google Scholar

163. Cp. on these and similar cases Domke, , Dutch War-Time Legislation before American Courts 1953, this Review 1954, p. 365 ff.Google Scholar

164. It is controversial whether courts should test foreign law against a treaty binding upon the foreign country but not binding upon the state of the forum; it may be argued that such a treaty is to be considered as res inter olios acta, and that, therefore, its observance does not concern the court; against this, it may be pointed out that municipal courts, when testing foreign against international law, function in the interest of the international legal community; it is in the interest of this community that a state should be held bound by all rules of international law to which it is subject, irrespective of whether these rules are of a general or of a special nature; see on different opinions with regard to this Question Batiffol, o.c. no. 335, and the authors cited by him.

65. Cp. the above-cited court decisions with regard to the non-recognition of the Soviet government and of the annexation of the Baltic states.

166. Cp. District Court Genoa 05 19, 1923Google Scholar, Journal Clunet 1923, 1021.Google Scholar

167. Cp. Chen, , o.c. p. 164.Google Scholar

168. Thus in many of the above-cited decisions; a contrary view has been taken in Italy, cp. State Council November 24, 1923, Journal Clunet 1925, 226Google Scholar; Court of Appeal Genoa 03 7, 1930Google Scholar, a.d. 1929/1930, 23.

169. Cp. Guarantee Trust Co. of New York v. U.S. (1937/1938) a.d. 1938/1940, 53Google Scholar, followed, among others, in U.S. v. National City Bank of New York et Al. and Steingut et Al. v. National City Bank of New York (1950) I.L.R. 1950, 18.Google Scholar

170. Cp. Banco de España v. Federal Reserve Bank of New York (1940) a.d. 1938/1940, 6.Google Scholar

171. Cp. Bogulawski v. Gdynia-Amerika Linie (Kings Bench 1949, Court of Appeal 1950) a.d. 1949, 20Google Scholar, confirmed House of Lords 1950, I.L.R. 1952, 19.Google Scholar

172. Cp. Civil Air Transport Inc. v. Central Air Transport Corp. (Privy Council 1952) I.L.R. 1952, 20.Google Scholar

173. Cp. Maury, , Des mariages civils d'espagnols célébrés en Espagne (“zone non nationale”) après la loi franquiste du 12 mars 1938 et leur valeur en France, in Festschrift Raape 1948, p. 53 ff.Google Scholar

174. District Court Rotterdam December 30, 1953, N.J. 1954, 769Google Scholar, confirmed Court of Appeal The Hague June 24, 1955, this Review 1958, 92Google Scholar, but partly on different grounds, which have been mentioned above.

175. Cp. the above-cited case of the Elise; in the above-cited English case of A/S Tallina Laevauhisus v. Esthonian State Steamship Line the Court of Appeal applied Esthonian law in force prior to the Russian reconquest, on the ground that it had not been proved that that law had been repealed by the Soviet regime; apparently, had such proof been delivered, the court would have applied Soviet-law.

176. This is also the opinion of Guggenheim, , Traité de droit international public, Vol. II, Genève 1954, p. 475/476.Google Scholar