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中国计量学院
现代科技学院
毕业设计
（论文）
外文翻译
学生姓名
：
XXX
学号
：
专
业
：
法学
班
级
：
外文题目
：
Evasion of Law and Mandatory Rules in
Private International Law
指导老师
：
系
：
人文与法学
2013
年
月
日
1
外文文献原文
Evasion of Law and Mandatory Rules in
Private International Law
J.J. FAWCETT
Cambridge Law Journal, 1990,
49(1):44-62
Source: Cambridge
Journals
，
INTRODUCTION
IT
has often been asserted that English private
international law has no doctrine
of
evasion
of
the
law.
It
is
true
that
English
law
has
never
developed
a
general
doctrine,
like
the
French
one
of
fraude
a
la
hi,
to
deal
with
cases
of
evasion.
Nonetheless,
evasion
of
the
law
has
been
recognised
as
a
problem
in
at
least
some
areas
of private international law, and an increasing
number of specific anti-evasion
measures
have
been
introduced
in
response
to
this.
The
English
approach
towards
evasion is a pragmatic one rather than
being based on any broad underlying theory. In
particular, the fundamental questions
have not been addressed of what is wrong with
evasion of the law and how it can be
dealt with most effectively. The purpose of this
article
is
to
examine
the
present
law
on
evasion,
determine
what
is
wrong
with
evasion of the law and
put forward proposals for a principled approach to
deal with
the problem.
I THE PRESENT LAW ON EV
ASION
The most obvious sense in which the law
is evaded is when persons deliberately
flout
the
law,
for
example
a
taxpayer
fails
to
declare
all
his
income
to
the
Inland
Revenue, or a person
smuggles goods into a country in breach of import
controls. In
such
cases
the
party
seeking
to
evade
the
law
wishes
no
law
to
apply.
The
private
international lawyer may be concerned
with this type of case, for instance the English
courts
may
be
asked
to
enforce
a
contract
the
performance
of
which
involves
the
illegal
export
of
more
interest
to
the
private
international
lawyer,
and
the
subject
of this article, are those cases where laws are
evaded by persons showing a
preference
for the application of one country's law rather
than that of another. People
can
show
this
preference
by
going
to
another
country
in
the
expectation
that
that
country's
law
will
be
applied
to
their
affairs.
This
has
happened
in
the
sphere
of
family
law
where
evasive
marriages,
divorces
and
abduction
of
children
are
well
2
known.
Evasion
can
also
take
place
in
the
commercial
sphere
where
the
particular
method of evasion
takes a different form, i.e. contractual
agreements that a particular
law will
apply. Those areas in which evasion has been
recognised as being a problem:
marriage, divorce, child abduction and
custody, and contract, will now be examined in
detail,
after
which
some
conclusions
will
be
drawn
on
the
nature
of
the
approach
towards evasion adopted under the
present law.
A. Evasive Marriages
Evasive marriages have been a well
known phenomenon since the earliest days
of
conflict
of
laws.
Starting
with
Brook
v.
Brook
in
the
middle
of
the
nineteenth
century there has
been a spate of reported cases involving English
couples going to
Denmark or Germany to
marry in
order to
evade the
English law on the prohibited
degrees
of marriage. After the marriage the couple would
return to live in England.
The
English
courts
strongly
objected
to
the
attempt
to
evade
English
law
in
these
cases and refused to recognise the
foreign marriage. The technique for dealing with
the evasion was to classify the issue
in the case as being one of essential validity and
to apply the law of the domicile of the
parties, England, to the question of the validity
of the foreign marriage. In other
words, the courts moulded their private
international
rule on capacity to enter
a marriage to stop evasion of the law. The gradual
relaxation
in
the
prohibited
degrees
under
English
law
has
largely
meant
the
end
of
such
instances of evasion.
However, it still remains the case that, for
example, an uncle will
be
unable
to
marry
his
niece
in
England
but
he
may
be
able
to
do
so
under
some
foreign systems of law.
Better known to laymen than the Danish
marriages cases are the Gretna Green
marriage one time young English
couples would elope to Scotland in order to
evade the English requirement of
parental consent for the marriage of a child
between
the ages of 16 and 21. Such a
child could marry in Scotland without parental
consent,
there being very much less
formality for marriage under Scots law. The
reduction of
the age of majority to 18
in England has meant that in most cases there is
no longer
any need for young couples to
go to Scotland to enter into a valid marriage.
However,
the attitude of the English
courts towards Gretna Green marriages is
instructive and
contrasts strongly with
their attitude towards the Danish marriages. No
objection was
made to the parties
evading the English requirement of parental
consent by going to
marry
in
Scotland
and
these
Scots
marriages
were
recognised
as
being
valid.
The
issue was classified as one of formal
validity and the law of the place of celebration
was applied to the marriage, i.e. Scots
law. The private international law rule was not
3
moulded to
stop evasion.
The
traffic
in
evasive
marriage
was
not
all
one
way.
There
are
well
known
instances
of
French
couples
coming
to
England
in
order
to
evade
stringent
French
requirements of
parental consent to the marriage of children up to
the age of 25. Not
surprisingly, in the
light of the Gretna Green marriages, these English
marriages were
regarded as being valid,
despite the clear evasion of French law by the
parties.
B. Evasive Divorces
In
1868
in
Shaw
v.
Gould
Lord
Westbury,
speaking
in
the
context
of
a
Scots
divorce obtained by an
English domiciliary said that:
No
nation
can
be
required
to
admit
that
its
domiciled
subjects
may
lawfully
resort to another country for the
purpose of evading the laws under which they live.
When they return to the country of
their domicile, bringing back with them a foreign
judgment
so
obtained,
the
tribunals
of
the
domicile
are
entitled
or
even
bound,
to
reject
such judgment, as having no extra-territorial
force or validity.
A
hundred
years
later
there
was
considerable
judicial
concern
that,
whilst
the
rules on recognition of foreign
divorces should be liberalised and made more
flexible,
divorces
obtained
abroad
after
a
short
period
of
residence
should
not
be
recognised. The technique for achieving
this was to introduce at common law a real
and
substantial
connection test
as a basis
for the recognition
of
foreign
divorces.
A
petitioner who was merely
temporarily in, for example, Nevada when he
obtained his
divorce, would not
be able
to
satisfy this test
and the
foreign divorce would
not
be
recognised. The attitude subsequently
changed and the Recognition of Divorces and
Legal Separations Act 1971 enshrined
the Law Commission's philosophy that, if there
had been forum shopping, the harm had
already been done, and in order to prevent a
limping marriage the foreign divorce
should still be recognised in England.
This still remains the general view to
this day. However, there are two specific
statutory anti-evasion provisions which
constitute exceptions to this general rule. Both
provisions are concerned with extra-
judicial divorces. There was a concern shown by
the
judiciary
and
then
by
Parliament
that
parties
should
not
be
able
to
evade
the
English
system
of
divorces
granted
by
courts
and
the
English
law
on
financial
provision
on
divorce
by
obtaining
in
England
an
extrajudicial
divorce.
Since
1974
such
extra-judicial divorces have therefore been denied
recognition. There was then a
concern
that
the
particular
statutory
provision
denying
recognition
to
this
type
of
divorce could
itself be
evaded by English
residents
going abroad, for
example on
a
day
trip
to
France,
to
obtain
an
extra-judicial
divorce
which,
because
it
would
be
4
recognised
in
their
foreign
domicile,
would
be
recognised
in
England.
The
latest
version
of
the
relevant
statutory
anti-evasion
provision
seeks
to
prevent
this
by
denying recognition to
extra-judicial divorces obtained, without
proceedings, outside
the British
Islands if either spouse had for a period of one
year immediately preceding
the
institution of the proceedings habitually been
resident in the United Kingdom. The
latter
provision
does
nothing
to
prevent
an
English
domiciliary
from
evading
his
financial
responsibilities
to
his
spouse
by
obtaining
an
extra-judicial
divorce
in
the
state
of
his
nationality,
and
then
having
this
recognised
in
England.
However,
the
Court
of
Appeal
in
Chaudhary
v.
Chaudhary
held
that,
in
such
circumstances,
recognition
of the divorce would be contrary to public policy,
thereby preventing the
evasion.
C. Child Abduction and Custody
The most recent problem of evasion to
arise in the family law area involves cases
of child abduction and custody. If the
parents of a child are in dispute over the custody
of
a
child
and
the
parent
who
has
not
been
granted
custody
by
the
English
courts
seizes the child and removes it abroad,
there is a deliberate flouting of the English law
in
that
the
English
custody
order
has
been
disregarded.
This
is
regarded
as
a
very
serious
matter
and
Parliament
has
intervened
to
introduce
new
criminal
offences
concerned
with
taking
a
child
under
the
age
of
16
out
of
the
jurisdiction
without
consent. There may also be an element
of the errant parent preferring the application
of a foreign law in that this parent
may seek and obtain a custody order abroad. The
problem is essentially one of getting a
foreign court to recognise the English custody
order or the custody rights (if no
order has been made) and return the child to
England.
There are now international
conventions on child abduction
and custody,
and if the
child is removed to a country which is
a party to these conventions, that country may
be
obliged
to
recognise
the
English
custody
order
and
rights.
As
far
as
the
United
Kingdom is concerned the international
conventions were brought into effect by the
Child Abduction and Custody Act 1985,
which requires English courts to recognise
foreign custody orders and rights in
certain circumstances.
D.
Evasive Contracts
In contract cases the
judiciary appear on the face of it to have a
strong objection
to evasion of the law.
In theory the requirement laid down in Vita Food
Products v.
Unus
Shipping
that
the parties'
choice
of
the
applicable
law
must
be
made
in
good
faith,
will stop all cases of evasion of the law. Even if
the case involves an issue of
formal
validity of the contract the bona fides doctrine
can still come into play. This
5
contrasts
with
marriage
cases
where,
as
has
been
seen,
the
evasion
of
formal
requirements is not objected to.
However, in practice the requirement of a bona
fide
choice does
not
appear to
restrict the
parties' freedom
to
choose
the applicable law.
There is no
reported English case in which the parties' choice
has been struck out on
this ground. It
is important to notice that, although the Vita
Foods Case introduced a
restriction
on party
autonomy, this
restriction
did
not
apply on the
facts of the case
and the
result was to allow parties to evade the Hague
Rules.
Much
more
important
than
the
common
law
doctrine
of
bona
fides
are
the
specific statutory
anti-
evasion
provisions that have been
introduced into
the area of
contract. The most famous of these is
contained in section 27 of the Unfair Contract
Terms Act 1977. This section prevents
evasion of English law, or the law of any other
part of the United Kingdom, by
restricting the parties' freedom to choose a
foreign law.
It provides that the Act
and the protection it gives to consumers still has
effect if the
choice
of
law
appears
have
been
imposed
wholly
or
mainly
for
the
purpose
of
enabling the party imposing it to evade
the operation of this Act
to provide as
an alternative that the Act will apply, despite
the parties' choice, if
the
making
of
the
contract
one
of
the
parties
dealt
as
consumer,
and
he
was
then
habitually resident in the United
Kingdom,
and the essential steps
necessary for the
making of the
contract were taken there, whether by him or by
others on his behalf
The section, more
controversially, also prevents parties from
evading foreign law. It
restricts
the
right
of
parties,
whose
contract
has
a
foreign
objective
proper
law,
to
choose
the
law
of
part
of
the
United
Kingdom
by
providing
that,
in
such
a
case,
certain sections of
the Act will not apply as part of the proper law.
Another
example
of
a
statutory
anti-evasion
provision
is
to
be
found
in
the
Carriage of Goods by Sea Act 1971,
implementing the Hague-Visby Rules. Under the
old Hague Rules there was a problem of
people evading those Rules by the insertion
of a choice of law clause in their
contract. This gap was closed by the insertion in
the
Hague-Visby Rules of a new Article
X to replace the original Article X in the Hague
Rules. This lays down the territorial
scope of the new Rules, and is coupled with a
provision in the implementing
legislation which states that the Rules, as set
out in the
Schedule
to
the
Carriage
of
Goods
by
Sea
Act
1971,
shall
have
the
force
of
law.
According
to the House of Lords in The Hollandia the
intention of Parliament was for
the
new
Rules
to
apply
whenever
the
case
comes
within
Article
X,
regardless
of
whether there is a foreign proper law.
Their Lordships were concerned to interpret the
Act
and the Hague-Visby
Rules in
such
a
way
as
to
prevent
the possibility of their
6