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VII.-REPORT PRESENTED TO THE CONFERENCE BY THE COMMISSION ON INTERNATIONAL PRIVATE LAW1 AND THE COMMITTEE ON FORM.

The commission on international private law has been charged with examining, not only the questions of international private law in the strict sense of the term (Nos. 3 and 36 of the Questionnaire)—that is, conflicts of law-but also a certain number of questions of a general character which have been referred to it by the conference or by the central committee.

It has prepared an advance draft of a convention which takes into consideration the cases remitted to national laws, contained in the resolutions adopted by the central committee and already submitted to the conference.

Further, a committee on form, presided over by the president of the conference and composed of the rapporteurs and the assistant rapporteur 2 of the central committee and of the members of the commission on international private law, was charged by the central committee, at its last sitting, with preparing the final protocol for submission to the conference and the draft of a law intended to be annexed to the advance draft of the convention. It appeared to the rapporteur of the commission on international private law, who was also charged with presenting to the conference the report of the committee on form, that the questions treated in the texts prepared by the two bodies were intimately linked with each other and could with difficulty be divided. He therefore resolved to formulate only a single report.

To this report will therefore be annexed the draft of the final protocol proposed for discussion by the conference. To this protocol are joined the advance draft of the convention prepared by the commission on international private law and the advance draft of the law prepared by the committee on form.

Before examining in detail the provisions of these texts, it was thought proper to set forth here some general considerations of great importance, both theoretical and practical, concerning the scope and form of the documents under consideration.

I. GENERAL CONSIDERATIONS.

The conference has for its object to attain unification of the law on the bill of exchange and the promissory note to order. For the sake of simplicity it will be spoken of simply as the bill of exchange. This unification may be viewed from several aspects.

1 This committee is composed of MM. Kriege (Germany), president; de la ValléePoussin (Belgium); Renault (France), rapporteur; Beichmann (Norway); and Asser (The Netherlands).

MM. Ch. Lyon-Caen and Simons, rapporteurs, and M. Carlin, assistant rapporteur.

SCOPE OF THE LAW.

The law, the preparation of which is under consideration, might deal only with the regulation of international bills or might include also bills circulating in the interior of a single country. At first sight it might be thought that in an international conference it would be natural to deal only with international operations and to disregard operations whose effects are limited to a single country. It is in the former cases that the diversity of laws produces serious inconveniences. In the second class of cases difficulties might arise from the existence of a judicial system which was antiquated and at variance with the modern needs of commerce, but if the difficulty was real that country would have no one but itself to blame for not adopting legislation more perfect in character. If an international regulation was established convenient in character and responding to commercial needs it could easily be extended to the interior circulation. Was it not in this manner that the transportation of merchandise by railway was dealt with? The convention of 1890 concerned itself only with international transportation, but in several countries internal legislation has been modified to bring it into harmony with international legislation.

It has, however, been admitted that the uniform law will govern all bills of exchange, and it is easy to be convinced that it could not well be otherwise. The argument drawn from the convention in 1890 is not pertinent, for the simple reason that while it is easy to distinguish interior from international transportation, it would be difficult to distinguish two species of bills of exchange. Without doubt a bill drawn from one country upon another, as from Paris upon Berlin or Amsterdam, would be considered as an international bill of exchange; but a bill drawn from Paris upon Lyons or Bordeaux might be indorsed in Germany or in Switzerland and become an international bill. It could not be known, therefore, at the time of its creation by what rule the draft would be governed. Moreover, in place of the simplicity which is desired it would be complication which would ensue, since even within the same country, in place of having, as to-day, a single law, one would have two operating side by side. Duality is then impracticable. The same law must regulate all operations of the same nature made within a given territory, due consideration being given to the reaction of these operations elsewhere. A bill of exchange created in France must fulfill the same conditions of form and have the same results whether it is payable in France or abroad; in the same manner, an indorsement made within the territory of a single country should be submitted to the same rules, without the obligation of considering the place of creation and the place of payment of the document upon which it is placed. Otherwise the conditions of security and simplicity which are sought would not be fulfilled. Let it be added finally that, even for a bill of exchange circulating only in the interior, there might be involved an international interest, because of the fact that often persons of different nationalities appear on the same bill. The countries which are in close relations, which in a manner exchange their subjects with each other, would find advantage in the fact that uniform rules would apply to operations taking place among them.

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It is proper to remark that in the present case, contrary to what happens in certain domains of the law, the nationality of persons, apart from questions of competency, is almost a matter of indifference. The law must regulate operations of exchange taking place within the territory, whoever may be the persons who figure in such operations. From this idea must follow this logical consequence, that the proposed law, taking the place of the law of each country, must be of general application—that is, it must regulate even bills coming from States which are not parties to the law or destined for such States. If the rules adopted are sound, there is no reason for limiting them to a single category of bills. It will appear, however, further on that it is necessary to consider that the application of the law to noncontracting States will not be of the same nature as the application of the law to States parties to the convention-at least so far as concerns certain of the rules. (Vide Article 17 of the draft of the convention.)

CHARACTER OF THE LAW.

What shall be the character of this uniform law? It is possible to conceive of several systems. There might result from the conference merely mutual enlightenment obtained from the deliberations. Each country, instructed by its delegates, might establish a law which would respond as far as possible to the common views disclosed here. This would evidently amount to little, and inquiries on the subject have for some time been sufficiently exhaustive for each country to be able, if it desired, to make its own special investigation without having need to send delegates to a diplomatic conference.

One might go farther and agree upon the text of a law to be introduced later into the legislation of each country without assuming any obligation to maintain it. This would establish uniformity in fact, but not uniformity of law. It was thus that the bill of exchange act of 1848 was enacted in Germany; it was thus also that the three Scandinavian countries acted in 1881. A simple uniformity of this sort seems rather difficult to establish and to maintain between many States under conditions very diverse. If it was simply a matter of having the new law voted like an ordinary law by the different legislative bodies, it would not be easy to obtain the abnegation necessary to refrain from amendment; it could not be ignored that all the provisions proposed would not be equally acceptable in each country and that there would be a strong temptation to strike out those which were least acceptable. The work must be examined in its entirety and must be accepted if, all things considered, this entirety is satisfactory. This can be accomplished by means of a convention, which would bind us without doubt, but it would bind others equally toward us. It is a union that must be formed, and this union must confer reciprocal rights and duties.

It is required, then, that the character of a convention shall be given to the proposed law, and article 1 of the draft of the convention which we submit sets this forth clearly. This involves grave consequences which should not be ignored, but which appear to be necessary if a durable uniformity is to be sought.

A variety of precautions are proposed to facilitate the adoption of this law and to avert the anxieties which its adoption might cause.

The needs of commerce are everywhere nearly the same, with the result that similar customs have become established on essential points. As has been said with reason. "simple instrument of civil or commercial transactions, free from all bonds which subject it to dependence upon ideas, moral, religious, or social, the bill of exchange seems to involve only technical questions and to present an abstract character highly suitable to facilitate agreement." Legislative provisions on the subject differ more than practice. The text proposed may appear to depart much from the text of ancient law in this matter: it will depart less than might be supposed from the rules introduced by practice and jurisprudence under the empire of a law antiquated in appearance, but whose provisions have been sufficiently flexible to permit usage to adapt itself to the variable needs of commerce. The project so conscientiously prepared by men of competence in varied fields diplomats, jurisconsultists, magistrates, and men of affairs has been guarded against rash innovations. Above all, it introduces greater precision and uniformity in practice, while avoiding useless interference with established habits. The bond which it is sought to establish between the different States must not be a heavy chain, but must be sufficiently flexible to respect the liberty of each in that which it considers essential. It is in view of such ideas that upon a considerable number of points the resolutions adopted by the central committee and by yourselves remit to the national laws, at least for the present, the cases where the establishment of a unique rule has appeared impossible.

The question involved, moreover, is not to bind ourselves indefinitely, but to make a serious experiment which it is hoped will prove favorable. If, however, a country discovers that upon one point or another the rules accepted are harmful, it will always be able to liberate itself by means of a denunciation of the convention. It will be able to withdraw from the union when it presents, in its eyes. more inconveniences than advantages. This is without doubt an extreme measure of defense, which it will probably not be necessary to employ. We propose another, more practical and better adapted to attain the end sought-the meeting of a conference which may examine the results of the experiment and complete or alter the provisions of the law or of the convention. A special clause, which will be commented upon further on, regulates this point.

FORM OF DIPLOMATIC INSTRUMENTS.

How shall the uniform law be introduced into the different countries? A certain latitude ought to be allowed in order to take account of constitutional or other limitations. Even though the end may bethe same, the roads by which it is reached may be diferent.

First arises the question of language. There will be without doubt, from the international point of view, a single text-that which will be prepared by us and which will be definitively adopted by our successors. But this text can not be submitted as it is to legislative approval in all countries nor promulgated by the Government nor interpreted by the courts. It will have to be translated. It remains clear that if this translation is, as it naturally will be, binding upon the authorities and the tribunals of the country, it will have value

from the international point of view only in the degree to which it conforms strictly to the French text. Each Government will be responsible for its translation, and this responsibility may well involve diplomatic consultation. It is for the sake of the principles that these ideas, which are not a subject of dispute, are recalled. Each Government will obviously seek that the translation which it adopts shall not give rise to criticism.

Leaving aside the question of language, it is possible to conceive of the employment of a variety of methods for the introduction of uniform law into internal legislation. A country might promulgate it as it is, while accompanying it with an executory law by means of which it might exercise the power which is reserved to it of introducing into the uniform law certain modifications or of making additions. There would then be two laws operating side by side.

It will, therefore, probably be more simple to introduce directly into the law the modifications and additions which are authorized, in order to have only one text sufficing for the entire subject. It would seem to be necessary to proceed in certain cases in this manner. A country, for example, which wished to exclude the necessity of the designation of the bill of exchange would scarcely be able to promulgate officially the formula adopted by the majority and set forth in article 1, section 1, of the project. It would set forth directly "the bill of exchange must contain (1) designation as a bill of exchange or the clause to order."

Undoubtedly the uniform law should be modified or completed only to the extent fixed by the convention, and it is proper to make here observations similar to those which have been presented above in regard to the translation, in that it relates to the responsibility of the Governments.

Even supposing the law completed, in conformity with the views of the convention, the law will not be self-sufficing for all the questions and actions of a nature to arise in relation to a bill of exchange. Jurisdiction and procedure are entirely outside the project and are left to the national law. This is an important point to be noted, because there are countries where there is a special procedure in the matter of bills of exchange, especially the provisions in regard to the manner in which the payee may set up defenses against the holder, if he is not affected.

After these preliminary considerations, it is proper to take up successively the different subjects submitted to your approval.

II. ADVANCE DRAFT OF A UNIFORM LAW ON THE BILL OF EXCHANGE AND THE PROMISSORY NOTE TO ORDER.

The Questionnaire of the Government of the Netherlands asked whether the uniform law ought to regulate in a complete manner the entire law of bills of exchange (with the exception of some matters, like the form of protests, which are by their nature within the scope of national law), or ought to restrict itself to laying down the principles, leaving to each nation the function of regulating the details. After several tentative efforts, the consideration of details seems to be imposed by the force of circumstances if uniformity is to be seriously sought. Thanks to the talent of the eminent rapporteurs

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