This article is written by Anjana Dhital.
Table of Contents
Background
In an era of globalization wherein territories and jurisdictions have become attenuated, the conceptual understandings within private international law have also expanded. Private international law, customarily perceived as conflict of laws, is a body of legal rules and principles whose purpose is to submit relations and disputes having a cross-border dimension to a given jurisdiction or to a specific local law.
In context of Europe, states began showing their interests in private international law along with the drafting of Treaty on the European Economic Community in 1957. Later, the Amsterdam Treaty of 1997 further broadened the notion of judicial co-operation dramatically and incorporated three core issues of private international law in the scope of the European Community i.e. mutual recognition and enforcement of decisions and judgments in extra-judicial cases among member states, choice of law and compatibility of rules applicable in member states concerning private international law and jurisdiction.
Today, irrespective of all forms of variations across time and space, private international law in Europe is commonly associated with rules governing jurisdictional competence, choice of law and recognition of foreign judgments in international private relations. Along with the increase in frequency of international private relations, there has been development of new interests in private international law.
Similarly, in an attempt to eradicate all possible hindrances arising in cross-border interactions and transactions, traditional rules and assumptions are being compared, revised and modified by experts in the field. And, all these measures have helped to transform the face of private international law in Europe to a notable extent.
Revolutionary developments emanating from nineteenth century
Although the primary objective of this paper is to explore the series of new developments in the field of European private international law, it is essential to have a brief understanding of some revolutionary conceptual developments of conflict of laws in Europe beginning right from nineteenth century. The revolution can be best explained through the following three ideologies:
- Privatization
Private international law was globally perceived as an international law for private matters during nineteenth century. It was Savigny who challenged this superficial understanding and introduced private international law as a private law for international connections. Savigny propounded a system of references, separating the applicable law from jurisdiction and the application of foreign law from the recognition of foreign judgments.
The subsequent consequences were the inception of “comity” as a concept of global civil community than a mere element of public international law and the understanding of “territoriality” as an indicator of the closest connection of a legal relation than an expression of territorial sovereignty only.
- Nationalization
This concept is often linked with Mancini who projected membership in a political community as the most important connecting factor in choice of law. It was after Mancini’s scholarly discourse that nationality began prevailing over domicile because it expresses a person’s membership in the community or nation.
- Domestic internationalism
Before the emergence of this principle, states often adopted an extreme stance when it came to describing the nature of private international law. For some states, it was entirely a universal law while for some states like the Unites States, it was and is a shape of domestic law. But, Europe reconciled both these ideas and proposed that rules of choice of law are rules of domestic law and thus open to legislative discretion, but they are strictly different from domestic substantive rules, and their focus is international.
These three core foundations have shaped the operation of conflict of laws in Europe until today.
Emerging developments in Private International Law in Europe
- Law relating to marriage and family
Prior to new conceptual developments in the contemporary age, the rationale of private international law relating to marriage and family was still connected with the protection of national interest. Eventually, the Italian judges acted to reform family law based on the democratic values of Republican Constitution of the State in the 1960s. The Courts began vesting rights and protections in all children irrespective of their legitimate or illegitimate status. The dimension of family was adapted with the principle of equality between spouses.
Most importantly, marriage and family were now enforced as fundamental rights of individuals by Italian and French courts. Restrictions or limitations to marriages such as interracial marriages, marriages with physically unfit persons, health-related prohibitions and marriages without parental consent were eliminated.
Besides re-conceptualizing marriage as a human right and easing the conditions for entering marriage in the 1960s, changes were also introduced in equalization of rights and obligations of husband and wife. These equalizations resulted in the imposition of the default community of property regime (unless the partners choose a common regime) and in the common responsibility of the spouses to set a place of residence in consideration of individual needs and the interest of the family as a whole. According to this change, the residence of the wife does not automatically follow that of the husband.
Similarly, the law of divorce also gained momentum in 1970 in Italy, according to which divorce had to be followed by “objective intolerability” of cohabitation. The English law of divorce adopted the same path. As a result, the procedures of divorce have become comparatively simpler in European states today and fault is no longer considered a valid ground for divorce.
Some significant principles in cross-border cases relating to family and marriage decided by courts of European states which have shaped the private international law concerning family and marriage in Europe have been noted below:
- Indyka v. Indyka
An English court should recognize a divorce decree granted in a foreign country where there was a real and substantial connection between the petitioner for the divorce and the country exercising the jurisdiction.
- Vervaeke v. Smith
A marriage must be recognized as legally valid if the requirements of formality and capacity have been met irrespective of the intentions of the parties. However, the English courts will decline to recognize or apply what might otherwise be an appropriate foreign rule of law, when to do so would be against English public policy.
- Wilkinson v Kitzinger
Same-sex marriage is recognized as a civil partnership and not a marriage, in England. Therefore, non-recognition of same-sex marriage recognized in a foreign jurisdiction is not an infringement of the claimant’s human rights.
- Law relating to intellectual property
In the area of private international law relating to intellectual property in Europe, Dutch courts have been propounding remarkable jurisprudence in cross-border IP infringement cases. Some of those cases have been listed below along with established principles:
- Focus Veilig v. Lincoln Electric
Aligning with Dutch private international law, an order by a Netherlands court should not have to be limited to acts that take place in The Netherlands.
- Philips v. Postech
If a Dutch court has jurisdiction, it generally can issue a cross border injunction and that there is no need to apply restraint, for instance in case of preliminary injunctions.
Similarly, in context of codified laws dealing with IP, many of the recent codifications of Private International Law explicitly validate the lex loci protectionis. According to this principle, rights in intellectual property are governed by the law of the country for which protection of those rights is sought.
- Party autonomy in law of contract
At the beginning of twentieth century, the parties’ right to choose the applicable law was a highly disputed issue in Europe. Where courts in England, Germany and France favored party autonomy, courts in other states had a contradicting attitude. The latter states argued that parties could not raise themselves above the law of one state by choosing the law of another state. A common point of intersection was reached when the principle of party autonomy was incorporated into the Rome Convention. However, this autonomy is not absolute as the courts in Europe have identified various limitations to it.
- Connection to a foreign law
A choice of a foreign law, whether or not it is accompanied by the choice of a foreign tribunal, does not prejudice the application of the mandatory laws of that country, when all other elements relevant to the contract at the time of the choice are connected with one country only.
- Substantial relationship to the chosen law
The law of the state chosen by the parties will only be applied if the chosen state has a substantial relationship to the parties or the transaction.
- Choice of state law
General principles of law or non-state codifications are beyond party autonomy.
- Priority of protective laws
Party autonomy does not prevail wherein a party to the contract (consumer contracts, employment contracts and insurance contracts) is perceived to be systematically in a weaker position.
- Choice of forum and the Doctrine of lis pendens
The doctrine of lis pendens has been enshrined in Article 27 of the Brussels I Regulation. The doctrine substantiates that a court must stay its proceedings where proceedings involving the same causes of action between the same parties were brought earlier in a court of another Member State.
Although the relationship between choice of forum and the doctrine of lis pendens may not seem problematic, a serious concern arises wherein two courts are seized and the court first seized is not the chosen court. In such a situation, a question arises whether the court that has been chosen, has to decline jurisdiction on the basis of the doctrine of lis pendens. The consequent solutions include prevalence of the doctrine of lis pendens over a choice of forum or prevalence of a choice of forum over the doctrine of lis pendens.
The Brussels I Regulation gives no clue to the solution of this problem. However, a recent judgment has addressed this question. In the case of Gasser v MISAT, it was held by the European Court of Justice that the doctrine of lis pendens prevails over the choice-of forum clause. A court is not allowed to assert jurisdiction on the basis of a choice of forum if another court has been seized earlier.
Analysis
As an emerging branch of international law, the scope of private international law is not definite. Although many theories have been established in the past few decades under private international law, each new problem gives rise to various unanticipated conflicts every day. Thus, along with the period of globalization and international networking, private international law, like any other branch or academic discipline, is also being updated eventually.
In context of Europe, the doctrines of conflict of laws applicable prior to eighteenth and nineteenth century are not constant or have remained uncontested. Various new principles have been developed. As discussed above in the paper, the concept of marriage has been re-defined. It is perceived more as a fundamental right than a capacitated obligation. Law relating to intellectual property has also been introduced as a prominent area of private international law. There have been numerous interpretations in matters of intellectual property under the purview of private international law.
In relation to law of contract, party autonomy has developed as an undisputable principle today unlike in nineteenth century. However, various limitations have been imposed to it considering the repercussions of absolute party autonomy to the contracting parties. Similarly, the dispute concerning the prevalence of doctrine of lis pendens or a choice of forum has also been settled by a recent court interpretation.
Conclusion
Therefore, from the aforementioned elaborations, it is apparent that various novel theorizations and interpretations have emanated in the field of private international law in Europe. All these principles propounded in European states have evidently contributed in transforming the face of private international law throughout the world. These post-nineteenth century developments have further widened the scope of conflict of laws.
References
- Alberto Horst Neidhardt, ‘The Transformation of European Private International Law’, The Degree of Doctors of Laws thesis, European University Institute, 2018
- Eckart Gottschalk et al (eds), Conflict of Laws in a Globalized World, Cambridge University Press, United Kingdom, 2007
- Giesela Rühl, ‘Choice of Law and Choice of Forum in the European Union: Recent Developments’, Social Science Research Network, 2011 available at https://tinyurl.com/tuzo4ot
- Prof. Dr. Xandra Kramer et al, A European Framework for private international law: current gaps and future perspectives, European Parliament, Brussels, 2012
- Ralf Michaels, ‘The New European Choice-of-Law Revolution: Lessons for the United States?’, vol.82, Tulane Law Review, p.1607, 2008
- Ralf Michaels, ‘Public and Private International Law: German Views on Global Issues’, vol.4, Journal of Private International Law, p.121, 2008
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