laws, conflict of

Opposition or contradiction in the applicable laws of different states or jurisdictions regarding the rights of the parties in a case.

Rules have been created to help determine which set of laws is applicable in a given case, which judicial system is most appropriate for trying the case, and the extent to which other jurisdictions are expected to honour or enforce the outcome of the trial.

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Introduction

      the existence worldwide of a multiplicity of different sets of courts and different sets of privat law (i.e., the law governing relations between private individuals or between an individual and the state considered as an individual without special position or privilege). The “law of the conflict of laws”—also called private international law—has to do with the resolution of the problems resulting from such diversity of courts and law.

      Both civil and criminal procedure may have a variety of international aspects: the plaintiff and defendant may be foreign citizens or may reside outside the country of the court (called the forum state); evidence may have to be taken in a foreign country; or, finally, a decision rendered in one country may have to be enforced in another. Growing international activities, primarily for business purposes but also of a private nature, have decisively increased the practical relevance of these international aspects of procedural law.

      Legal problems arising from the international aspects of civil and criminal proceedings are a result of the multiplicity of different sets of courts and different systems of law in the world. Each nation maintains its own set of courts in complete independence of every other nation, and each nation has its own set of laws, written or unwritten. The rules and provisions that deal with the international aspects of various national legal systems are called the law of conflict of laws.

Diversity of laws

Diversity within countries

      While in such countries as France, Sweden, Peru, or Japan one single system of law obtains for the whole country, diversity exists in many others, especially nations organized upon a federal pattern, such as the United States, Australia, Canada, and, to a minor degree, Germany, Switzerland, and Mexico. The law of Illinois is not the same as that of New York, Louisiana, or Indiana; that of Quebec differs from that of Ontario or Newfoundland; that of Chihuahua is not quite the same as that of Michoacán. In Germany and Switzerland the systems of private law are by and large uniform, but minor differences still exist among the Länder of Germany and among the Swiss cantons.

      Even in countries whose political structure is of the unitary rather than the federal pattern, differences can be found. In the United Kingdom, for example, considerable differences exist between the laws of England, Scotland, the Isle of Man, the Channel Islands, and Northern Ireland.

      Diversity of laws develops where a country is divided, as, for example, in Korea. Where a new country is formed, or where territory is annexed (annexation), legal unity may not be brought about at the same time. After the reannexation of Alsace-Lorraine by France in 1920, for example, German private law remained in effect there for a good number of years; and when after World War I Poland was formed out of parts of old Russia, Germany, and Austria, legal uniformity was not brought about until after the end of World War II.

      Diversities of law within one country may also exist on an ethnic (ethnic group) or religious basis. Such a situation has commonly existed in most countries of the Middle East; the laws concerning matters of the family, including succession upon death, remain different in India for Hindus, Muslims, Parsees, Buddhists, and other sects, and in Lebanon or Israel for Muslims, Jews, and the various groups of Christians. In the United States and Canada, American Indians are in several respects subject to their own tribal laws.

Diversity between countries

      Because of the spread of Western civilization over the entire planet, the laws of modern nations present a considerable measure of similarity, at least with respect to business transactions between individuals and private enterprises. Owing to the endurance of social traditions or religious convictions that are still quite different in many parts of the world, there is much less harmony between the rules on personal status, family matters, and succession. The same is true for the rules of criminal law. In addition, economic regulations differ considerably, as is indicated by the contrasts between free-market economies and planned economies.

Rules on the conflict of laws

      Wherever there is diversity of laws, be it within or between countries, rules are required that must deal with, and seek to mitigate, the consequences of that diversity. Although terminology is not uniform, in most countries these rules are generally called conflict of laws. However, within this broad field, which may cover all branches of the law, it is important to distinguish between two principal branches of the conflict of laws: private international law (dealing with civil procedure) and international criminal law.

Private international law

      The name private international law, which is generally used in countries of European-continental tradition, and occasionally also in the United Kingdom, seems to indicate that it is a part of international law—that is, that system of law that is superior to all sovereign states and that, at least in theory, is uniform throughout the world. This view was commonly held for many centuries, and when the name private international law was coined in the 19th century it was meant to signify that the supranational body of international law consisted of two parts, public and private international law. While the former would determine the proper conduct of sovereign nations toward each other in both peace and war, the latter would, in a uniform way, tell all nations in what cases their courts ought or ought not to take jurisdiction, under what conditions foreign judgments were to be enforced or otherwise recognized, and in what cases the laws of one nation were to be applied rather than those of another.

      Since the latter part of the 19th century, however, such a view has been considered an ideal rather than a true description of reality. Today, it is generally recognized that each nation determines not only what is to be its substantive law (its law of property, contracts, torts, family relations, succession, corporations, etc.) but also in what cases its courts are to have jurisdiction, under what conditions foreign judgments are to be recognized, and which country's law is to be applied in any particular case.

      As on other matters, nations may, of course, conclude treaties, bilateral or multilateral, in which they assume in relations with each other the duty to deal with certain problems in an agreed way. Treaties of such a kind have been concluded between numerous states, especially among countries of Latin America and of continental Europe. The creation of various regional associations in western and eastern Europe, in the Middle East, and in Latin America has led to the conclusion of new multilateral conventions between the member states of these unions. The United States has concluded many bilateral treaties granting substantive or procedural rights to the citizens of each contracting state within the territory of the other. The countries of the Commonwealth are parties to numerous treaties with one another and with other nations, concerning foreign judgments and mutual rights of owning, disposing, and taking of property. In those numerous areas not covered by treaties, the rules of the conflict of laws of each nation are relevant. These rules differ from country to country since each state is sovereign in fixing and amending them. Even in France, Germany, or Latin America, where the bulk of private law is contained in codes and other statutes, the statutory provisions on private international law are fragmentary, and for large parts of the field the law must be sought in the decisions of the courts. In all countries the writings of scholars have been of considerable influence.

      Among the rules of private international law, three important issues of international civil procedure arise in practice: (1) the problem of jurisdiction—that is, under which circumstances a case may be brought before the courts of a particular country or province; (2) international elements in the various stages of a judicial proceeding; and (3) the recognition and enforcement of foreign judicial decisions—that is, what weight, if any, is to be given in one country or province to the judgments and decisions of the courts of other countries or provinces.

Jurisdiction

      If a person wishes to bring a civil lawsuit against another, he might conceivably bring the action in any country of the world. If, however, a citizen and resident of the United States, for example, were to sue a citizen and resident of Canada in Panama, a judgment obtained in Panama would be of no use to him unless the Canadian owned property in Panama that, if he did not pay, the U.S. citizen might attach there, or if the Panamanian judgment could be enforced in such other country or countries in which he happened to hold property. For this practical reason the problem of where to bring suit is thus tied up with that of the enforceability of foreign judgments. Even if a judgment might be of practical value to the plaintiff, however, he might find that the courts of the country in which he wished to bring his action would not receive it. As a matter of fact, all countries have limited their jurisdiction—that is, the scope of actions that they allow their courts to handle. Countries do not wish their courts to deal with lawsuits with which they have no proper contact, which might clog the calendars of their courts, or against which it would be unfair to compel a person to enter a defense on pain of having judgment by default rendered against him. Each country determines for itself when its courts should decide a civil lawsuit.

      In composite countries, such as the United States, the United Kingdom, Canada, and Switzerland, rules also are necessary to determine in which of the several constituent states, provinces, or other parts a civil lawsuit may be brought. In some countries (for instance, Germany) this determination is made by the national law. It may be left, however, to each of the constituent states or provinces to determine for itself the scope of litigation that it will allow its courts to decide. Such, at least on general principle, is the situation in the United States, where the state's freedom of determination is limited, however, by the “ due process” clause of the Fourteenth Amendment to the federal Constitution, which in effect prohibits the state from exercising civil jurisdiction where it would be grossly unfair to do so. In the countries of the Commonwealth, the jurisdiction of the courts is also determined for each constituent part by its own law, but the principles of such determination do not differ widely from one another.

      As a general principle, most countries or states agree that a case may be tried in their courts if both parties have consented to their jurisdiction. The plaintiff's consent simply appears from his commencing his action in the country or state in question; the consent of the defendant is presumed when, rather than objecting to the jurisdiction, he confesses judgment or begins to litigate on the merits of the controversy. Some countries, nevertheless, close their courts to a litigant whose case has no more substantial connection with them than the parties' consent. French courts, for instance, will not try a lawsuit between foreigners unless it arises out of a controversy that has some real connection with France, such as the breach of a contract to be performed in France, or a tort committed in France, or title to land situated in France. As another example, the courts of New York regard themselves as an “inconvenient forum” for suits between nonresidents concerning a tort committed outside New York. With few exceptions, Anglo-U.S. courts will not try controversies concerning title to, or trespass upon, land that is situated outside the state.

      Generally, however, the problem of jurisdiction does not become acute unless the defendant objects to having the case tried in the country or province of the plaintiff's choosing, or unless he fails to appear. Different approaches to this problem of jurisdiction are followed in the continental European countries of the civil-law (civil law) tradition and in those of the common-law (common law), or Anglo-American, tradition. The former start from the idea that the proper place for a person to be sued is his domicile or residence. Apart from this principal venue, however, several others are available. For example, contentions over title to land must be sought where the land is situated. A suit arising out of an alleged tort may be brought in the place where the tort is alleged to have been committed, and a suit based upon breach of contract may be brought in the place in which it is alleged that the alleged contract was to be performed.

      Some countries—for instance, Germany—allow an absent defendant to be sued in their courts if he owns any property within the country. France keeps its courts open for suits of any kind brought by a French national against a foreigner. A large number of countries, including those adhering to the common-law tradition, allow a civil suit to be commenced by the attachment of property owned within the territory, the enforcement of a default judgment obtained being limited, however, to the assets thus attached.

      In their general approach to the problem of jurisdiction, the common-law countries still proceed from the long-obsolete notion that a civil suit could be commenced only by the defendant's arrest by the sheriff. Consequently, an action can still be brought in any place in which the defendant is personally served with process, even though he may be there only for a few minutes to change airplanes. In modern times it has come to be widely held, however, that personal service upon the defendant is no longer an indispensable requirement of jurisdiction and that an individual may be sued in the country or state of his residence, even if the summons is not personally pressed upon him. A corporation can always be sued in the country or state in which it has been incorporated.

      It is required, however, that an honest effort be made to give the defendant actual notice that a lawsuit is about to be brought against him. The mere publication of the summons in a newspaper or at the bulletin board of the court is not sufficient unless the address or identity of the defendant cannot be ascertained upon a reasonable effort.

      States of the United States are now coming to allow their courts to exercise jurisdiction in cases having almost any kind of contact with the state. Generally, a corporation may be sued in any state in which it is simply “doing business,” even though the case in question is totally unconnected with the state.

      In both civil-law and common-law countries special rules apply for suits in which the plaintiff aims at a “judgment in rem.” Rather than ordering a defendant to pay a certain sum of money or ordering him to do, or not to do, a certain act (such as deliver a deed to a piece of land or refrain from using a trademark), a judgment in rem produces by its own effect a change of the legal situation (for instance, the foreclosure of a mortgage, the removal of a cloud on a title to land, the dissolution of a marriage, the creation of an adoptive parent-child relationship). Lawsuits aiming at the court's changing the title to a piece of land can universally be brought nowhere but in the country or province in which the land is situated. Actions arising out of transactions connected with shipping can generally be brought in the port in which the ship in question happens to find itself. In the United States a suit for divorce can be brought in the state of the plaintiff's domicile or residence, for the establishment of which periods varying between a few weeks and several months in length are prescribed. In the British countries the traditional rule of exclusive jurisdiction of the domicile of the husband is weakening. Civil-law countries generally keep their divorce courts open to their nationals even if they reside abroad.

Proceedings

      Even if a civil action can be properly brought before a court having jurisdiction, international aspects may have an impact on the course of the proceedings.

      Deviations from a purely domestic proceeding may arise especially if one of the parties resides outside of the forum state. In order to commence an action, the plaintiff's complaint must be served upon the defendant. The question then arises how such service can be effected if the action is to be brought, for example, before an English court when the defendant resides in France. In this case, formal service of judicial documents is entrusted to state officers or bailiffs and is therefore regarded as an act of national sovereignty. Since no court or state authority may act outside the area or state of the court, service in another state requires assistance by public authorities in that state. The authorities, especially the judicial authorities of the state in which the defendant resides, must be requested to assist. Such international judicial assistance is usually rendered on condition of reciprocity; i.e., only if the requesting state is prepared to honour a request for similar assistance. More certainty exists if both the requesting and the requested state are parties to a multilateral treaty on service of judicial documents.

      A related issue will arise if the plaintiff cannot raise the funds for bringing his action or pursuing the proceedings. If he is a citizen of the forum state, he may be entitled to proceed in forma pauperis (“in the manner of a pauper”—i.e., exempt from the usual costs of proceedings) or to obtain legal aid. However, the forum state is often not willing to bestow this benefit upon foreigners or persons residing abroad. Multilateral conventions seek to remove these difficulties by facilitating “international access to justice.”

      Another major difficulty to be overcome is in taking evidence outside the forum state when, for example, a witness living in Australia has to be heard in a divorce suit pending before a German court. The problem and the solutions that have evolved are quite similar to those described above for the formal service of judicial documents outside the forum state.

Foreign judgments

      If a creditor has obtained against his debtor a judgment for $1,000 in Mexico or in Michigan, and his debtor does not have sufficient property in that country or state, can he enforce it in Illinois, where the debtor owns land, keeps a bank account, or owns other assets? If someone has brought and lost a lawsuit in New York, can he start it all over again in California or in Peru? If the marriage of Mr. and Mrs. Smith has been terminated by a decree of divorce of a court in Nevada, or by an act of the parliament of Canada, or by the order of a district governor in Norway, and Mr. Smith wishes to remarry in Wyoming or in South Africa, will he be given a license? If he remarries will his new marriage be valid or does he have to go to jail as a bigamist? If a citizen of the United States residing in Wisconsin adopts a child of German parents residing in Germany and the adoption has been confirmed by a court of Wisconsin, will the child inherit on the adopter's death a piece of land situated in Indiana or an account in a bank in Germany or in Switzerland?

      Unless countries have bound each other by treaty mutually to enforce their civil judgments, each country is free as to whether or not, and, if at all, under what conditions, it wishes to enforce or otherwise recognize foreign judgments of the types indicated by the questions above. The attitudes of the several countries vary considerably in this respect, and the enforcement of foreign money judgments is not the same as the recognition of a judgment as a bar to the starting of a new suit all over again ( res judicata effect), or the recognition of the termination of a marriage by a decree of divorce or of other changes of private legal relationships brought about by judicial act.

      If, for example, an Illinois judgment for money is not promptly paid by the debtor, it can be enforced in Illinois by the attachment and sale of his property, the proceeds being turned over to the creditor. Such enforcement is generally the task of a public officer, such as a sheriff, who is empowered, where necessary, to break resistance with physical force. Although a sheriff knows well enough the looks of a judgment of his own country or province, he cannot be expected, or even allowed, to go into action simply upon the basis of a paper purporting to be the judgment of a foreign country with whose judicial system, language, or even script he cannot be expected to be familiar. For the protection of the citizen as well as of himself, it is indispensable that, before the sheriff or other enforcement officer goes into action, the foreign judgment be transformed into a domestic one. Some countries, such as The Netherlands (Netherlands, The) or Sweden, simply limit enforcement to domestic judgments. Even if the creditor has obtained a judgment abroad, he must start regular proceedings all over again, and the only advantage that the foreign judgment provides for him lies in the fact that the Dutch or Swedish court will be inclined to regard it as good, although in no way conclusive, evidence that his claim is well founded. In most other countries, however, a domestic judgment will be supplied by a domestic court without a reopening of the dispute about the merits of the creditor's claim. All that the domestic court will inquire into is the regularity of the proceedings in which the foreign judgment was obtained. For this transformation of a foreign into a domestic judgment, the majority of the civil-law countries provide a kind of special proceeding (exequatur) that is supposed to be, but is not always, simpler and less expensive than an ordinary civil lawsuit. In the common-law countries it is necessary to bring upon the foreign judgment an action that in outward form is a regular civil lawsuit but that is, at least in the normal case, simple and speedy. In the United Kingdom and the Commonwealth a simplified mode of domestication is furnished by agreements and statutes providing, in certain cases, for the simple registration in one law unit of judgments rendered in another. In the United States a similar method exists in the relations between those states that have adopted the Uniform Enforcement of Foreign Judgments Act. In the European Community and in Scandinavia, multilateral treaties oblige signatory states to recognize and enforce judgments from other member states and provide for a simplified procedure for the domestication of the foreign judgment.

      When a foreign judgment is not sought to be enforced by attachment of the debtor's property or similar measures, but when its res judicata effect is raised as a defense in a domestic lawsuit, or when the question is that of recognition of its law-changing effects, such as the termination of a marriage by a decree of divorce, it would seem to be unnecessary to require the formal transformation of the foreign into a domestic judgment by any special proceedings. Some countries (for instance, Italy and, to a more limited extent, France) nevertheless require such formal domestication for judgments purporting to affect the personal status of their nationals.

      In the United States the Constitution provides that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Under this clause the states, and by statute the territories, are obliged mutually to enforce their money judgments and to recognize the res judicata and law-changing effects of their judicial acts, provided the state by which the judgment was rendered was acting within the scope of its jurisdiction as defined by the Supreme Court of the United States. The only other defenses that might be raised are grave irregularity of the proceedings in which the judgment was obtained and, in certain cases, lack of finality.

      In countries that follow the general principles of the common law, a foreign judgment usually is willingly enforced and otherwise recognized unless (1) the country by which it was rendered lacked jurisdiction according to the notions prevailing in the place where recognition is sought, or (2) the proceedings in which the judgment was obtained were tainted with fraud or were otherwise grossly unfair, or (3) the recognition or enforcement of the foreign judgment would seriously interfere with an important public policy of the country or state where recognition or enforcement is sought. In addition to these requirements, most civil-law countries (except, of course, those few in which foreign judgments as such are not enforced at all) also demand reciprocity with the country seeking to have its judgment recognized.

      Nowhere will a foreign judgment be enforced or recognized unless the country by which it was rendered had jurisdiction to do so under the notions obtaining where recognition is sought. These limits are sometimes wider, however, than those that a country will concede to others for the exercise of their jurisdictions. Whereas France, for instance, holds its courts open for all suits of a Frenchman against a foreigner, a U.S. or English court will not recognize a default judgment obtained in such an action unless the defendant was served with process in France or was a resident of France or had some other contact with that country that justifies his being sued in France.

      In matters affecting personal status, especially divorce, civil-law countries generally recognize judgments rendered by the courts of the country of which the parties are nationals. Under the common law of England a decree of divorce will not be recognized unless it was rendered by the state of the domicile of the husband. After World War II, however, there were enacted in some parts of the Commonwealth statutes under which a wife living separately from her husband may also sue for divorce in the country or province of her residence, and a decree thus obtained is likely to be recognized in the other parts of the Commonwealth. Since 1971, the United Kingdom even recognizes a foreign divorce decree rendered in the country of which one of the spouses is a national.

      In the United States the Supreme Court has determined that a divorce granted in one state must be recognized in all others if the state by which it was granted was the state of the true residence of the plaintiff or if the defendant actually participated in the proceedings without contesting the plaintiff's allegation of residence.

International criminal law

      This young and less-developed branch of the conflict of laws has seen a tremendous growth in modern times. The growing importance of international criminal law is due, first, to the increased international mobility of people, giving rise to more criminal acts with a foreign element, such as traffic violations involving foreigners as offenders or victims. In addition, shrewd criminals and organized crime have discovered the increasing gap between the territorial limitations of police, prosecution, and court powers on the one hand and the easy and quick trans-border communication and movement of persons and assets on the other. The more important general issues of modern international criminal law are comparable to those of the conflict of laws of civil procedure and are therefore of three types: (1) jurisdiction—i.e., the question of which authorities of which country may prosecute a criminal and bring him into court; (2) the international aspects of a criminal court proceeding; and (3) the recognition and enforcement of foreign judgments in criminal matters—i.e., the value attached in state B to a judicial decision rendered in state A. Because of the marked differences between criminal and civil procedure, the problems and solutions of international criminal law differ from those of private international law in many important respects.

Jurisdiction

      May a public prosecutor start a prosecution or may a criminal court open a judicial proceeding dealing with an offense that involves foreign elements? For instance, may a Swiss investigative or judicial authority open proceedings against a Frenchman? Does it make a difference whether this alleged offender resides in Switzerland, in France, or in Italy? Is it relevant whether the alleged act took place in Switzerland or outside Switzerland? Should one distinguish between a traffic accident, a theft, and a murder?

      The basic principle for determining jurisdiction in criminal matters is that the authorities and courts of the state or province in which the offense was committed are competent to investigate and adjudicate it. This so-called principle of territoriality can be justified by both general and specific considerations. It is an important aspect of sovereignty that the authorities of a territory are responsible for preserving law and order in their area by protecting the integrity of the inhabitants and of their property against attacks and by punishing offenders. In addition, it is most practicable to investigate and adjudicate offenses where they have occurred because local circumstances can easily be taken into account, and witnesses and other means of evidence usually are located at or near the place of commission. Territoriality is generally recognized as the defining principle of jurisdiction in international criminal law. Some countries, especially in the English-speaking world, even regard it as the exclusive basis of jurisdiction. Other countries extend the basic rule by a few narrow and specific additions for particular offenses, such as drug offenses, terroristic acts, or war crimes.

      Two conventions in force for some members of the Council of Europe empower a contracting state A, on whose territory a person residing in contracting state B has committed an offense, to request the authorities of B to prosecute and adjudicate that offense under its criminal law. Paradoxically, these conventions were concluded in the interest of offenders, because they allow the authorities in the country of the offense to release the offender and request the country of residence to take over the prosecution and trial. Without the conventions, the police in the country of the offense would be compelled either to ask for securities or, in aggravated cases, to arrest the offender, at least until the trial was over and possibly even until he had served the sentence imposed for the offense.

      Jurisdiction in criminal matters also has a personal aspect. Criminal trials, as distinct from trials of civil actions, will usually be continued only if the defendant appears before the court. His presence is almost indispensable for a fair trial. Since, for instance, a U.S. court or police officer cannot arrest a suspect outside the United States, the assistance of other countries for seeking, arresting, and delivering an alleged offender is required. For this purpose, bilateral and multilateral treaties provide, under certain conditions, for the extradition of suspects to the requesting country, which is usually the place where the offense was committed. One important restriction of the duty to extradite on which many countries insist protects nationals of the country requested; thus, the German constitution prohibits the extradition of Germans to foreign countries. The purpose of this prohibition is not to make Germans immune from criminal trials for offenses committed abroad but to ensure them a trial before a German court. In order to achieve this, jurisdiction of German courts is extended beyond the basic principle of territoriality to include all offenses committed by Germans, even those committed abroad.

Proceedings

      In a criminal proceeding, there are fewer complications caused by foreign elements than there are in civil proceedings, usually because the defendant is present at the trial. Nevertheless, he may require legal aid if he is too poor to pay for his defense. Or a foreign defendant or foreign witness may need an interpreter. These problems of access to the court are usually settled under the forum country's domestic rules of criminal procedure.

      International cooperation is especially necessary where evidence has to be taken in a country outside the forum state. The most reliable way to obtain the necessary judicial assistance of foreign states is through treaties concluded between states. A convention of the Council of Europe, for example, makes judicial assistance in criminal matters obligatory for 18 member countries. Its opening provision binds the contracting states to afford one another, within the terms of the convention, “the widest measure of mutual assistance in proceedings in respect to offenses.”

Foreign judgments (judgment)

      Generally speaking, the issues arising out of the international effects of a criminal judgment are comparable to those involved in determining the weight to be attached to a foreign judgment in civil matters. If a person has been convicted and sentenced in Turkey but before the end of the trial has fled the country, can he be brought back to Turkey to serve his sentence there? If he cannot be brought back to Turkey, will Italy, his present country of abode, be willing to enforce the payment of a penalty or even a prison sentence? Will the answer be different if the offender is an Italian residing in Italy? Less drastic, but certainly no less relevant, for the defendant is the question whether after an acquittal in France he may be prosecuted and convicted in Denmark for an offense based upon the same facts.

      The stronger the intended effects of a foreign judgment, the less are states willing to give effect to it. The strongest effect of a criminal judgment is the enforcement of a sentence imposed by the court, and, contrary to the treatment of foreign judgments in civil matters, states are generally quite unwilling to enforce foreign prison sentences or even penalties. This situation can only be remedied by the conclusion of bilateral or multilateral treaties, of which many exist. The most common type provides for extradition of the convict to the country in which he has been convicted. Nineteen member countries of the Council of Europe, for example, are bound by a multilateral convention on mutual extradition. A more recent type of convention allows a contracting state A, where a resident of contracting state B has been convicted, to request the latter state to take over the person and make him serve in B the prison sentence imposed in A. Such a request usually serves the interests of the offender, especially if the penitentiary system of state A is not as well developed as that of state B. Such a transfer also helps to preserve the social and familial contacts of the offender and to facilitate his social rehabilitation. Usually state B will agree to enforcement of a foreign criminal sentence only if the offense is one that is punishable under the law of B also.

      Lesser effects than enforcement of sentences are usually more acceptable to foreign states. The fact that a suspect has been acquitted or has been convicted and has served his sentence in one country is, in many other countries, recognized as a bar to a new prosecution or conviction for the same offense. In this way the double jeopardy rules of many national laws, barring a second proceeding on the same facts, is extended to the international level.

      An earlier conviction for an offense in state A may have an adverse effect for a defendant who is later convicted for an offense of the same type in state B. This is true if, under the law of B, penalties may or must be increased for repeated offenses of the same type. In this case, too, a domestic rule (that penalizing recidivism) is extended to the international level, this time to the disadvantage of the defendant.

Max Rheinstein Ulrich M. Drobnig

Additional Reading

Private international law

Literature on individual national systems of law is too numerous to be cited. Broad comparative treatments are offered by István Szászy, International Civil Procedure: A Comparative Study, trans. from Hungarian (1967); and Ernst Rabel, The Conflict of Laws: A Comparative Study, 2nd ed., 3 vol. (1958–64), the only scholarly analysis of the conflict of law on a worldwide scale.

International criminal law

M. Cherif Bassiouni, International Criminal Law, 3 vol. (1986–87); Stefan Glaser, Introduction à l'étude du droit international pénal (1954), with a supplemental volume (1959), and Droit international pénal conventionnel, 2 vol. (1970–78); F. Meili, Lehrbuch des internationalen Strafrechts und Strafprozessrechts (1910), the first classic; Gerhard O.w. Mueller and Edward M. Wise (eds.), International Criminal Law (1965), especially ch. 1 and 4; Dietrich Oehler, Internationales Strafrecht, 2nd rev. and enl. ed. (1983); Antonio Quintano Ripollés, Tratado de derecho penal internacional y internacional penal, 2 vol. (1955–57); and Edward S. Stimson, Conflict of Criminal Laws (1936).Ulrich M. Drobnig

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