which such firms have established themselves have usually denied the severability of the interests of the partners composing the firm, yet international commissions have in most cases admitted the separate claims of the individual partners for their undivided pro rata shares of the partnership property.1

2

While a presumption is sometimes exercised that partners own equal shares, claims commissions usually require a claimant partner to show the extent of his interest in the partnership.3

§ 276. Surviving Partners.

5

The principle of the common law which invests the surviving partner of a firm with the right to collect the debts of the firm has been applied in a number of cases before domestic and international courts. The rule, however, was considered without application to the claim of a British subject, appearing, before a commission having jurisdiction of claims of American citizens, as the surviving partner of a firm composed of an American citizen and a British subject, the tribunal stating that the rights of the American citizen, who alone was entitled to an award, passed to his personal representative and not to his surviving alien partner.6

1 Ruden (U. S.) v. Peru, Dec. 4, 1868, Moore's Arb. 1653; Cerruti (Italy) v. Colombia, Aug. 18, 1894, For. Rel., 1898, 245, Moore's Arb. 2117; Alsop and Co. (U. S.) v. Chile, Dec. 1, 1909, Award July 5, 1911, 5 A. J. I. L. 1079.

The entity was regarded as inseparable in Chauncey (U. S.) v. Chile, No. 4, May 24, 1897, Report, 1901, p. 22; see dissenting opinion by American commissioner. The subsequent Alsop protocol and award (supra) practically reverses this decision. Brewer, Moller and Co. (Germany) v. Venezuela, Feb. 13, May 7, 1903, Ralston, 595. 2 As to joint owners, see The Schooner Nantasket, 39 Ct. Cl. 119.

Henriquez (Netherlands) v. Venezuela, Feb. 28, 1903, Ralston, 911; Finn (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2348; Headman v. U. S., 5 Ct. Cl. 604. Burdick, F. M., The law of partnership, 2nd ed., Boston, 1906, 139 et seq.

5 Douglas v. U. S., 14 Ct. Cl. 1; Labadie, Adm., v. U. S., 33 Ct. Cl. 476; Stewart, Adm., v. U. S. (French spoliations), 27 Ct. Cl. 221 (notwithstanding fact that surviving partner was not a member of firm when the loss occurred); Garrison (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1356, 3129 (Award by Lieber, Umpire, to American citizen, when no evidence introduced to show deceased partner was not an American citizen); Levois v. U. S., Act of June 23, 1874, Moore's Arb. 2358.

6 Morrison, surviving partner of Plumer and Morrison (U. S.) v. Mexico, March 3, 1849, ibid. 2326 (last part dictum).

CORPORATIONS

§ 277. Citizenship of Corporations.

The nationality of corporations is one of the most actively discussed questions of the law of continental Europe.1 While some writers dispute the possibility of corporate nationality, the fact that the legislation of practically all countries takes account of foreign corporations, has persuaded publicists to endeavor to establish the criteria of a national corporation. In some countries, little help is obtained from positive legislation.

A corporation may be attached to a territory by three elements. The first is the place where it is created or founded, where the legal formalities of its constitution, authorization and inscription have been carried out. The second is the place where the home office, the active management or center of administration, or what the French call the siège social is located. The third is the place where it carries on the purpose of its organization, its actual operations, its center of exploitation (principale exploitation).2

When these three elements are combined in one country, it is hardly open to question that the corporation has the nationality of that country. But when the three elements or some of them are located in 1 Mamelok, A., Die juristische Person im internationalen Privatrecht, Zurich, 1900, 211 et seq.; Pillet, A., Des personnes morales en droit international privé, Paris, 1914; Isay, Ernst, Die Staatsangehörigkeit der juristischen Personen, Tübingen, 1907; Leven, M., De la nationalité des sociétés et ses effets juridiques, Paris, 1900, 199 et seq.; Fromageot, H., De la double nationalité des individus et des sociétés, Paris, 1892, 114–121; Lyon-Caen in 12 Clunet (1885), 265–274; Lainé in 20 Clunet (1893), 273 et seq.; Arminjon in 4 R. D. I., n. s. (1902), 381 et seq.; translated into English by William E. Spear, Clerk, Spanish Treaty Claims Com., Washington, 1907, Document 53; Marais and Barclay in 23rd Report, International Law Asso. (1906), 360-372; Jacobi in 27th Rep. ibid. 368-380, Baumgarten in 28th Rep., ibid. 246-254 and D. J. Trias y Giro, 28th Rep. ibid. 270 et seq. 1889 and 1900 Congrès international des sociétés par actions, Paris, 1889 and 1900. See also the general works on private international law by Bar, Fiore, Weiss, Vareillès-Sommières, Brocher, Surville and Arthuys, Asser-Rivier, Despagnet and Rolin, and the French treatises on commercial law by Thaller, Lyon-Caen and Renault, Houpin and Rous

seau.

2 Jitta, J., La substance des obligations dans le droit international privé, La Haye, 1906, I, 343 et seq.

3 Driefontein Cons. Gold Co. v. Janson (1900), 2 Q. B. 339, 346, S. C. [1902], A. C. 484, 490; Foote, Foreign and domestic law, 3rd ed., 144.

different countries, the nationality of the corporation is not always easy to determine. Taking into consideration the three factors mentioned and some others, the following systems as to the determinative criterion of the nationality of a corporation have all had their adherents: It is governed (1) by the nationality of the state which authorizes its existence (Fiore and Weiss); (2) by that of the state within whose jurisdiction it has been organized (Brunard and Cassano); (3) by the nationality of the stockholders (Vareilles-Sommières); (4) by that of the country of subscription or domicil of the majority of the stockholders at the time of subscription (Thaller); (5) by that of the country where it has its principal place of business, a system followed, with variations, by the legislation of most countries; (6) the jurisdictional judge may determine the nationality on all the facts.1 Other solutions have been offered, e. g., that the will of the corporation or of the state should alone determine its nationality.

Leaving aside all theoretical arguments, it may be said that the majority of states in their legislation have accepted the country of domicil (siège, Sitz) as the nationality of the corporation. The question then arises, is the domicil the center of administration, the "home office," or is it the center of exploitation, where the business is carried on. Among the countries of Europe-with the exception of Spain, which attributes Spanish nationality to corporations incorporated in Spain or administered from, or doing business in Spain, and of Italy, Portugal and Roumania, which consider as domestic corporations those doing business within their borders (center of exploitation)2-the majority adhere to the system by which nationality follows the country in which the center of administration (the siège social) is located.3

1 Arminjon in Spear's translation, supra, 8–18.

2 This principle appears to be favored by Lyon-Caen, Boistel, Asser and Rivier. Fromageot, op. cit., p. 118. See also Lyon-Caen and Renault, op. cit., II (Des sociétés), 4th ed., § 1167, p. 577.

This is the system approved by the Institute of International Law, with the qualification that the siège social be real and actual, and not fictitious and fraudulent (11 Annuaire, 151 et seq.; see also 9 Annuaire, 376 and 10 Annuaire, 153–156) and by the Congress of Corporations at its 1889 Paris session. See also Diena, G., Trattato di diritto commerciale internazionale, Firenze, 1900, I, § 37, and the decisions of French courts cited by Boeck in 20 R. G. D. I. P. (1913), 352. The International Law Asso. has expressed itself to the effect that the domicil of a foreign corporation

§ 278. Anglo-American Law.

In Anglo-American law no such theoretical conflicts as have prevailed in continental law appear to have found a place. The conception of domicil with respect to corporations has been applied in cases of taxation and of belligerent rights and for these purposes, the seat of the corporation has on occasion been considered the place where the business is carried on.1 For other purposes, the question of domicil and nationality is decided by practical considerations, the most important of which is the place of incorporation.

In the United States the citizenship of corporations is judged almost exclusively according to the place of incorporation, which involves, in most municipal cases, the determination of state citizenship. Only thirteen states even require residence on the part of any of the incorporators and only six require state citizenship. New York appears to be the only state demanding United States citizenship. While the courts have made numerous distinctions between natural persons and corporations in the matter of citizenship, they have held a corporation to be a citizen for the purposes of suit under the federal constitution,2 and under the Act to provide for the adjudication and payment of claims arising from Indian depredations.3 The Supreme shall be deemed the place of its incorporation, 22nd Report (1905), p. 250. This substitution of place of incorporation for siège social was also recommended by Judge Neukampf in the Verhandlungen der ersten Hauptversammlung der Int. Ver. f. vergl., Rechtswissenschaft at Heidelberg, Sept., 1911, Berlin, 1912, 203–226 and discussion 227-232.

The legislative system of the various countries is outlined in Isay, op. cit., 214–224, and is discussed in the other works cited in note 1 (supra, p. 617).

See the award of the Hague Court of Arbitration in Canevaro (Italy) v. Peru, April 25, 1910, 6 A. J. I. L. (1912), 746, and Boeck in 20 R. G. D. I. P. (1913), 349 et seq.

1 Foote, op. cit., 3rd ed., 143; Martine v. Int. Life Ins. Soc., 53 N. Y. 339 (a British insurance company with a permanent agency in New York and doing business there, was considered domiciled in New York, for belligerent purposes). Recent decisions in Great Britain have confirmed the rule that for purposes of suit the nationality of a corporation is that of the place of incorporation, regardless of the nationality of the stockholders. Continental Tyre and Rubber Co. v. Daimler [1915], 1 K. B. 893 (alien enemy stockholders in British corporation). See criticism by J. E. Hogg in 31 Law Quar. Rev. (1915), 170-172.

* Muller v. Dows, 94 U. S. 444.

'United States v. Northwestern Express Co., 164 U. S. 686 (Act of March 3, 1891).

Court, moreover, has held that for jurisdictional purposes there is a conclusive presumption of law that the persons composing the corporation are citizens of the same state with the corporation,' and "although an artificial person," a corporation is "to be considered as a citizen of the state as much as a natural person."

While it has been held that a corporation could be an alien enemy as well as an individual, it has not been definitely established whether the place of incorporation governs enemy character, or whether this is determined according to each place where the corporation has a branch and does business. In earlier cases, the place of actual business has been held to control;2 more recently, however, it has been held in England that the place of incorporation and registration, and not the place of operation governs.3 The British proclamation of September 9, 1914, in regard to trading with the enemy, provides that in the case of incorporated bodies, enemy character attaches only to those incorporated in an enemy country. On the other hand, for the purposes of the effect of war on patents, designs and trade-marks, a British corporation controlled by or carried on wholly or mainly for the benefit of subjects of an enemy state, was to be deemed an alien enemy. § 279. Diplomatic Protection of American Corporations. Conditions.

In the matter of diplomatic protection, the United States and Great Britain have considered themselves entitled to interpose in behalf of a corporation incorporated under its laws or those of a constituent state, on the theory that the company is clothed with the 1 Louisville, etc., Railroad v. Letson, 2 How. 497, 558; St. Louis and San Francisco Ry. Co. v. James, 161 U. S. 545, 562.

2 Martine v. Int. Life Ins. Soc., 53 N. Y. 339.

3 Nigel Gold Mining Co. v. Hoade, 70 L. J., K. B. 1006 [1901], 2 K. B. 849. The note in 15 Harvard Law Rev. 237 on this case is most confusing. Continental Tyre and Rubber Co. v. Daimler [1915], 1 K. B. 893. In support of the place of incorporation as the test see the Pedro and the Guido, 175 U. S. 354 and 382; Robinson Gold Min. Co. v. Alliance Ins. Co. [1901], 2 K. B. 919, and the following prize cases: The Manchuria, Russian and Japanese Prize Cases, II, 52; The Tommi, L. R. (1914), Probate, 251; The Roumanian, L. R. [1915], Probate, 26. See also Russell T. Mount in 15 Columbia L. Rev. (1915), 332–333.

'Moore's Dig. VI, § 984. Mr. Knox, Sec'y of State, to Mr. Arnold, Apr. 25, 1910, For. Rel., 1910, 197.

5 Lord Palmerston to Mr. Drouey, President of the Swiss Confederation, October 16, 1859, reprinted in For. Rel., 1873, II, 1348.