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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

territories, as eminent domains, in a similar manner as owners treat their private property. 51

Although it is not possible here for us to go on to scrutinize this historical process,
this periodical coincidence might suggest some historical change in the characteristics

of international commerce as well as our general understanding of international
economy. 52

The choice-of-law rule bears, as indicated above, some close relation with
the concept of good faith and the concept of “secure and stable transaction.” Moreover,

all these points relate to the historical background of socio-economic structure. Further
study shall be necessary on the choice-of-law issues set within this historical context. 53

V. Conclusion: the dominant view of secure

and stable transaction in Japan

Choice-of-law issue

If understood in a favorable sense, the Supreme Court tried to find a way to
coordinate the law of the place of registration and the law of the place of the object.
However, it must be said that this attempt at formulation failed.

51 What was historically significant since the last decades of the 19 century was the impact of the concept
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of eminent domain, relating to the nationalization (expropriation and confiscation) and the declaration of permanent
sovereignty over natural resources. For the concept of eminent domain, see LEHNHOFF, Development of the concept
of eminent domain 42 Colum. L. Rev. 596 (1942).
52 Moreover, the establishment of the legal framework of international society, composed only of “Public
International Law” and domestic laws, shall be examined in the same historical context, including the diffusion of
absolute immunity of foreign states before a domestic court and the mutual refusal of application of foreign public laws.
53 The changes of discourse shown by Cheshire are very interesting in terms of the relationship between
the choice-of-law issues and the characteristics of international trade. Since the first edition of Private International
Law (1935) and for a while (very probably until the 3 edition in 1948), Cheshire showed his interest in and attempt to
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establish choice-of-law rules for legally submitting both aspects of obligation and ownership of the same transaction
in a comprehensive manner to the market on which the parties to the transaction relied. This kind of comprehensive
treatment enables the causal relationship between transfer of ownership and contractual obligation incorporated in
the same transaction to be maintained. However, his idea has gradually drawn on the gravity of physical existence,
adopting the principle of lex loci rei sitae to a broader extent. See HARATA (supra note*) 354 note 115.

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