The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article deals extensively with the concept of Private International Law, as well as its origin, scope, significance, and Indian applicability.
It has been published by Rachit Garg.
When there are issues between the local laws of various nations pertaining to private transactions, private international law will be applied. This concept is also called the ‘conflict of laws’. This indicates a dispute or transaction involving one of the following: the relevant jurisdiction, the appropriate court, the appropriate venue, the appropriate renvoi (transfer of proceedings), the appropriate law, or the recognition or execution of a foreign decision.
Private international law mostly derives from national laws. Each country has its own laws, and the application of private international law differs from one jurisdiction to the next. The phrase conflict of laws is more often used in the US, Canada, and the UK. A wide range of subjects is covered by private international law, including (international) contracts, torts (lex loci delicti), family issues, the recognition of judgements, child adoption and kidnapping, real property (lex rei sitae), and intellectual property. The International Institute for the Unification of Private Law (UNIDROIT) and the Hague Conference on Private International Law (HCCH) have brought in treaties, model laws, and other tools to control the domain of transnational conflicts in addition to the regulations established by national authorities. Both the number of members and the variety of state parties to the Hague Conventions have seen tremendous expansion.
At the national, regional, and international levels, private international law-making has exploded as a result of globalisation. It has significantly boosted the actions of judges and lawmakers alike in the field of private international law.
Concept of Private International Law
Conflict of laws
The collection of regulations or laws that jurisdiction applies to a case, transaction, or other occurrences that have ties to more than one jurisdiction is known as ‘private international law’. According to the 10th edition of Black’s Law Dictionary, it is also called the ‘conflict of laws’. This body of law addresses three major issues:
- Choice of law, which addresses the issue of which substantive laws will be applied in such a case;
- Foreign judgments, which deal with the rules by which a court in one jurisdiction requires adherence to a ruling of a court in another; and
- Jurisdiction, which addresses when it is appropriate for a court to hear such a case. These problems can occur in any private law setting, but contract law and tort law are where they frequently occur.
Private International Law
The principles of private law and international law have been combined to form private international law. By engaging in any type of legal relationship, persons or states acting in the role of individuals freely invoke private law. The law that develops between several national (or municipal) legal systems is known as international law.
As Cheshire expressed, “Private international law, then, is that part of the law which comes into play when the issue before the courts affects some facts, events or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.”
The existence of several distinct municipal legal systems across the world is what gave rise to private international law. National legal systems reflect variations in sociocultural values, history, and tradition. The common law system in the United States is distinguished by a significant focus on court decisions as a separate source of law. Canada considers this common law system to be bi-jural since it integrates with Quebec’s civil law system.
Foreign law or facts, factual circumstances, substance, components of a legal cause of action, or fact patterns, which in one way or another are connected to a foreign legal system or a foreign nation, may be considered a foreign element. Foreign law is when a court decides a matter using a system of law that is distinct from the system of law that the court would use in a strictly domestic case.
There is an odd juxtaposition in private international law. Despite the word ‘international’ being a part of its title, only the foreign component qualifies as international. Even though it includes a global component, private international law is mostly a subset of municipal law. Every nation has its own private international law for this reason. Private international law, which is a subset of municipal law, deals with nearly every area of law and has a very broad scope. It does not, however, focus on any one area of law.
History of Private International Law
Development in the 1100s
A fundamental tenet of conflict of laws, that ‘foreign law, in suitable occasions, should be applied to foreign issues’, was first acknowledged by Western legal systems in the twelfth century. Prior to then, personal law predominated, which meant that each person’s relevant rules were determined by the community to which they belonged. The goal of this corpus of law was initially to simply decide which jurisdiction’s law would be the most equitable to apply. But, as time went on, the law began to prefer more precise principles.
Development in the 1300s
Bartolus de Saxoferrato, a law professor, meticulously compiled these laws around the middle of the fourteenth century, and his work was often quoted for the next several centuries.
Development in the 1600s
The jurisprudence of conflict of laws was further developed in the seventeenth century by several Dutch legal academics, including Christian Rodenburg, Paulus Voet, Johannes Voet, and Ulrik Huber. They made two major conceptual advances:
- Firstly, they argued that because countries are completely sovereign inside their boundaries, they cannot be forced to apply international law in domestic courts.
- Secondly, for international conflicts of law to function rationally, states must act with courtesy while upholding the laws of others since doing so is in their shared best interest.
Development in the 1700s
Important questions in the area of conflict of laws have existed in the US at least since the Constitution’s drafting in 1779. For instance, there was uncertainty over the body of law that would be used by the newly established federal courts in instances involving parties from various states (a type of case specifically subject to the jurisdiction of federal courts as per Article III of the US Constitution). Over 100 cases dealt with similar difficulties in the first two decades after the Constitution’s passage, while the phrase “conflict of laws” was not then in use.
Development in the 1800s
The eighteenth century witnessed the beginnings of significant international cooperation on the subject of conflict of laws in addition to domestic advancements in this area. Five South American nations sent representatives to the first international conference on the subject, which was held in Lima in 1887 and 1888 but failed to result in an enforceable agreement. The First South American Congress of private international law, which took place in Montevideo from August 1888 to February 1889, resulted in the first significant multilateral accords on the subject of conflict of laws. Eight treaties were drafted by the seven South American countries involved at the Montevideo conference, which essentially embraced Friedrich Carl von Savigny’s theories and based their determination of applicable law on four different forms of factual connections (domicile, location of object, location of transaction, location of court).
Development in the 1900s
Soon after, Tobias Asser convened an international conference in the Hague, Netherlands, in 1893. Thereafter, conferences were held in 1894, 1900, and 1904. These conferences, like their counterparts in Montevideo, resulted in several multilateral agreements on numerous themes related to conflict of laws. Subsequently, the frequency of these gatherings decreased, with the following conventions taking place in 1925 and 1928. The sixteen participating governments formed a permanent organisation for international cooperation on conflict-of-laws matters during the seventh conference in The Hague, which took place in 1951. The Hague Conference on Private International Law (HCCH) is the name of the organisation nowadays. By the end of 2020, HCCH had 86 member states.
In the latter part of the 20th century, as interest in the subject grew, the European Union started to take steps to unify conflict of law jurisprudence across its member states. The first of them was the 1968 Brussels Convention, which addressed the issue of jurisdiction for disputes involving multiple countries. The Rome Convention, which addressed choice-of-law guidelines for contract disputes among EU member states, came after this in 1980.
Development in the 2000s
Sources of Private International Law
The domestic laws of the relevant nations regulate a large portion of private international law. This means that Indian law may be used to determine, for instance, whether a particular foreign ruling would be upheld in an Indian court. Treaties and conventions, model laws, legal handbooks, and other instruments may also be utilised in the current endeavour to develop a more unified system of private international law. There is currently no well-defined body of private international law, although particular topics like contracts or family law may have their own set of controlling laws. private international law is often subject-specific and varies from country to country and jurisdiction to jurisdiction.
International bodies and treaties
The main international organisations engaged in private international law are listed below. Each of the following has a website where they provide updates on their conventions, preserve older papers, and provide information about their current projects:
Conference at the Hague on Private International Law (HCCH)
The Hague Conference on Private International Law (HCCH) is the international organisation for cross-border cooperation and commercial concerns, and it has its roots in a conference called by the Dutch government in 1893. It creates conventions (rather than principles, recommendations, and model laws) in several areas of private law, including subjects like intercountry adoption and child abduction as well as more modern problems like jurisdictional and choice-of-law rules. The Hague Conference’s Statute on Private International Law (entered into force on 15 July 1955) outlines the organisation and goals of the conference.
The whole text, status, bibliographic data, and explanatory reports on the Hague Conference’s work are all available online, including:
- Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) concluded at The Hague on 5 October 1961 and entered into force on 24 January 1965;
- Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) concluded at The Hague on 15 November 1965 and entered into force on 10 February 1969;
- Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Taking of Evidence Convention) concluded at The Hague on 18 March 1970 and entered into force on 7 October 1972;
- Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention), concluded at The Hague on 25 October 1980 and entered into force on 1 December 1983; and
- Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) concluded at The Hague on 29 May 1993 and entered into force on 1 May 1995.
The News and Events section on the official website provides the latest information on the status of conventions. The archives on the website go back to 1997. The lists of Central Authorities designated under various conventions are also maintained by the Hague Conference.
United Nations Commission for International Trade Law (UNCITRAL)
The United Nations General Assembly founded the United Nations Commission for International Trade Law (UNCITRAL) in 1966. It is the driving force behind some of the most important work being done to gradually harmonise private international law. The UNCITRAL website includes original materials and details on the status of recognised instruments including
- United Nations Convention on Contracts for the International Sale of Goods (CISG)
- Convention on the Limitation Period in the International Sale of Goods, and
- New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (also known as the “New York” Convention)
UNCITRAL contributes to the harmonisation of international trade law by developing model laws and legal guides that serve as a resource for domestic legislative drafters, in addition to conventions and other comparable instruments that are adopted at the international level by states. The UNCITRAL Model Law on the Procurement of Goods, Construction, and Services with Guide to Enactment (1994) acts as the most important illustration. Other UNCITRAL initiatives are targeted at private business parties, including the well-known UNCITRAL Arbitration Rules and the UNCITRAL Notes on Organising Arbitral Proceedings.
Six specialist working groups support UNCITRAL’s work. Each Working Group section contains drafts and preparatory documents that reflect the progress towards a finished document.
- Working Group I- It has finished working on the following:
- Working Group II- It is presently concerned with the arena of international arbitration and conciliation.
- Working Group III- It is presently concerned with online dispute resolution.
- Working Group IV- It is presently concerned with the arena of electronic commerce.
- Working Group V- It is presently concerned with the arena of insolvency law.
- Working Group VI It is presently concerned with the arena of security interests.
International Institute for the Unification of Private Law (UNIDROIT)
Since UNIDROIT’s founding in the League of Nations, the International Institute for the Unification of Private Law (UNIDROIT) has worked to modernise, harmonise, and coordinate private law, particularly commercial law, as between states and groups of states and to formulate uniform legal instruments, principles, and rules to achieve those objectives. The working languages of UNIDROIT, English and French, are both represented on its website, which provides complete text and status details for UNIDROIT Conventions such as the:
EU, CIDIPs, OHADA
For regional harmonisation, international bodies such as European Union (EU), Inter-American Specialised Conferences on Private International Law (CIDIPs), and Organisation pour l’harmonisation en Afrique du Droit des Affaires (OHADA) function to implement and uphold private international law.
European Union (EU)
Through the creation of conventions, directives, and regulations, the EU harmonises the private international law of its member countries. The following conventions play a significant role in the functioning of the EU for ensuring regional harmony and efficient functioning of private international law:
- The Brussels Convention and the Lugano Convention– are intended to define the worldwide jurisdiction of their courts, promote recognition and create an expedited mechanism for ensuring the execution of judgments, genuine documents, and judicial settlements. The Lugano Convention expanded the laws governing jurisdiction and the execution of judgements beyond the borders of the European Union.
- The Rome Convention– It states that a contract is regulated by the law that the parties have agreed upon and that is evident from the contract’s terms or the specific facts of the case.
- Study Group on a European Civil Code– The Study Group on a European Civil Code is a network of academics from throughout the EU engaged in comparative legal analysis in the area of private law to produce a defined collection of European legal principles covering the fundamentals of the law of contracts and the law of property.
- Principles of European Contract Law from the Commission on European Contract Law– The Principles of Contract Law were created by the Lando Commission, also known as the Commission, and are intended to be used as general rules of contract law in the European Communities when the parties have agreed to incorporate them into their contract or to have their contract be governed by them.
Inter-American Specialised Conferences on Private International Law (CIDIPs)
Inter-American Specialised Conferences on Private International Law, also known as CIDIPs, are organised by the Organisation of American States and are instrumental in coordinating and codifying private international law in the Western Hemisphere.
Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA)
In October 1992, OHADA began the legal unification process in Africa with the assistance of the heads of state of the sixteen OHADA nations. The Treaty on the Harmonisation of Business Law in Africa, the first OHADA treaty, was signed in Mauritius in October 1993. Information about the ongoing OHADA projects is shared on its website.
International criminal tribunals are either permanent or temporary (ad hoc) courts established to hear cases involving violations of international criminal or civil law. Generally, the national courts are approached to settle the majority of private international law cases but this isn’t an ideal and efficient option for either party. Furthermore, International courts typically handle matters only between nations and not private parties. The United Nations, therefore, assumed the charge of establishing international tribunals for the purpose of prosecuting offenders under private international law. There are a few regional courts and arbitration bodies that occasionally handle claims from private parties. These courts frequently use a mix of the relevant nation’s domestic law and some kind of international law.
The list below includes a handful of these courts established in different regions:
In Africa, OHADA is applicable and functioning which has established the tribunal courts for corporate law issues in its member nations, and has also published a number of model acts aiming to incorporate features of domestic laws to adjudicate matters of private international law.
In the European Union (EU), the European Court of Justice (ECJ) is the highest court for disputes involving the application of EU Community law, as opposed to the national law of individual member states. Furthermore, the European Union enters into international agreements with other subjects of international law, such as international organisations and nations, as a subject of public international law. With regard to the judgement, interpretation, and application of international treaties to which the EU is a party, the European Court of Justice is uniquely qualified. Additionally, the Court may interpret foreign agreements reached by the EU as acts of the institutions, particularly during the preliminary referral phase.
Council of Europe
In the Council of Europe, the European Human Rights Court (EHRC) has authority. If a person feels their rights have been violated in accordance with the European Convention on Human Rights, they may file a petition. EHRC acts as the primary judicial forum where people can file complaints about violations of their rights under the Convention. Cases occasionally include family law.
Scope of Private International Law
Although it has gained popularity in the UK, the United States and Canada are where the phrase ‘conflict of laws’ is most frequently used. According to some scholars from nations that apply conflict of laws, the term private international law is unclear since this body of law only includes domestic laws when a country is bound by treaties. It does not include laws that apply internationally (and even then, only to the extent that domestic law renders the treaty obligations enforceable). The distinction between private and public law in civil law regimes is where the phrase ‘private international law’ originates. The phrase ‘private international law’ under this type of legal system does not indicate an established body of international law. Rather, it refers to those parts of domestic private law that deal with international matters.
It’s important to note that although conflicts of laws often deal with international problems, local law is the relevant law. This is because, unlike public international law (more commonly referred to as simply international law), conflict of laws regulates how individual countries internally handle the affairs of people who have connections to multiple jurisdictions rather than how countries relate to one another. Undoubtedly, just like in other situations, international agreements to which a nation is a party may have an impact on domestic law.
Moreover, issues involving conflict of laws frequently arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than laws of foreign countries, in federal republics where significant lawmaking occurs at the subnational level, particularly in the United States.
Need for Private International Law
When it has selected the proper system of law, private international law has served its purpose. Its regulations do not directly resolve the conflict, and a French writer once compared this branch of law to the information desk at a train station where a traveller may find out what platform a train departs from. By definition, private international law only identifies the applicable law to be used in a case’s resolution. The following are the duties of private international law:
- What situations will provide the court jurisdiction over cases with foreign elements? (selection of a jurisdiction)
- Which law, the local municipal law or foreign law, shall the court apply in making such decisions?
- When will it order the execution of a foreign decree or under what conditions will it recognise a foreign judgement?
- Specifically for India, it also involves Indian private international law codification.
In India, there are very few statutory provisions relating to private international law. In this nation, there is no codification of private international law. Instead, it is dispersed among many statutes, including the Civil Procedure Code, the Indian Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. A few norms have also developed as a result of court rulings.
Functions of Private International Law
Private international laws perform the following functions:
- Private international law has traditionally been thought of as a set of impartial principles that designate the relevant legal system and create international jurisdiction. Private international law may have a specific advantage because it serves as an impartial arbitrator in international conflicts when the law, culture, and fundamental principles are different. It controls and coordinates matters of the relevant law and jurisdiction in a somewhat formal manner while respecting legal variety.
- Private international law aids in establishing the case’s maintainability by indicating which courts have jurisdiction to adjudicate the conflict, i.e. ‘jurisdiction’
- Private international law aids in deciding the local or foreign laws to be applied in cases involving private legal relationships and the existence of foreign content, i.e. ‘choice of law’.
The assessment of when the legislature of a given jurisdiction may legislate or the court of a given jurisdiction may lawfully adjudicate an issue that has extra-jurisdictional aspects is one of the fundamental questions addressed under the conflict of laws. This issue is ultimately decided by local law, which may or may not take into account pertinent international treaties or other supranational legal notions, as is the case with other elements of conflict of laws. Nevertheless, in contrast to the other two subtopics of conflicts of law, the theory of jurisdiction has given rise to dependable global standards. This is because jurisdiction deals with the most complex issue of whether or not it is ever legitimate for a nation to employ coercive force, as opposed to just how it should.
In general, international law recognises five grounds of jurisdiction. An individual or an incident may be subject to concurrent jurisdiction in more than one location, they are not mutually exclusive. The following are those five grounds:
- Territoriality: A nation has the authority to control anything that takes place inside its borders. The territoriality concept enjoys the broadest support among jurisdictional grounds in international law (subject to various complexities relating to actions that did not occur wholly in one country)
- Passive personality: A country has jurisdiction over an event that injured one of its citizens.
- Nationality (or active personality): A nation has jurisdiction over a wrong committed by one of its citizens.
- Protective: A nation has the authority to resolve risks to its own security (such as by pursuing counterfeiters of official documents).
- Universal: Because a given behaviour is inherently condemned by the world community, a nation has jurisdiction over it (such as violent deprivations of basic human rights). Of the five jurisdictional bases, this is the one that generates the greatest debate.
Laws have also been adopted by nations to resolve jurisdictional conflicts between sub-national organisations. For instance, in the United States, the Due Process Clause of the Fourteenth Amendment governs the minimal contacts rule, which limits the scope to which one state may exercise jurisdiction over residents of other states or events that occurred in other states.
Choice of law
Courts go through a two-stage process when presented with a choice of law issue:
- The law of the forum (lex fori) shall be used by the court in all procedural matters, including regulations regarding the choice of law;
- The laws with the strongest connections, such as the law of nationality (lex patriae) or the law of habitual residence, are applied after taking into account the circumstances that connect or relate the legal concerns to the laws of possibly relevant nations (lex domicilii).
The civil law counterpart of the common law lex domicilii test is the notion of habitual residency. The plaintiffs’ capacity and legal standing will be established by the court. The court will decide which state’s legislation (known as the lex situs) will be used to resolve all title-related disputes. When the issue is substantive, the ruling law will frequently be the law of the location where the transaction occurs or of the event that gave birth to the dispute (lex loci actus), but the appropriate law has become a more popular option.
The doctrine of comity
According to the legal concept known as the doctrine of comity, unless doing so would be against its public policy, a jurisdiction must recognise and implement court judgments and decisions made in other jurisdictions. The doctrine of comity is primarily utilised in interpreting international treaties, the theoretical frameworks which are developed within the nation, and the insights which can be gained from the analysis of Treaties and Model Law cases have wider implications for the use of comity in other contexts.
Comity, a notion with roots in the Middle Ages, is still relevant today since it aids in achieving one of the law’s main goals: the swift, fair, and complete settlement of disputes. In private international law, comity has long been acknowledged as a basic norm. Courts may nevertheless employ the theory of comity in interpreting international treaties and using their discretion under them, even when private international law standards are enacted in such instruments. With governments’ interdependence constantly increasing in the modern world, this strategy looks even more rational.
Unification of Private International Law
There is a primary need for the unification of private international law for two reasons. The private international law principles that various nations have established are distinct from one another, just as the domestic laws of various nations are. Consequently, the unification of legislation also occurs in two stages:
- Unification of internal laws of the countries of the world.
- Unification of the rules of private international law.
- The Berne Convention of 1886, which established an international alliance for the preservation of authors’ rights over their literary and creative works, was the first step toward the unification of domestic legislation. An international institute for the unification of private law was founded in Rome following World War One. The institute presently enjoys close ties with the United Nations and the Council of Europe.
A crucial step in that direction is the Hague Convention of 1955, which revised the 1929 Warsaw Conventions. This Convention establishes consistent regulations for the air transportation of people and cargo.
The laws governing the transportation of people and commodities by water were unified in the Brussels Convention of 1922-23.
The laws governing the transportation of people and commodities by water were unified in the Brussels Convention of 1922-23. The Geneva Convention on International Road Carriage of Goods of 1956 followed. The Convention on the Uniform Law of Bills of Exchange was the outcome of the Geneva Conference in 1930.
- It is impossible to unify all privacy laws due to fundamental ideological differences among the nations of the globe. Therefore, unifying all privacy laws is another way to prevent situations where courts in various nations may reach conflicting conclusions on the same issue.
A permanent Hague Conference Bureau was established in 1951. This was accomplished in accordance with a Charter that many nations have ratified. Many further Charters, Conventions, and International Organisations are attempting to harmonise private international law. International conventions, however, may only be a component of municipal legislation if they have been acknowledged or included in it.
Theories of Private International Law
The five main schools of thought in private international law. These theories include the Statute Theory, International Theory, Territorial Theory, Local Law Theory and Theory of Justice. Each of these theories is further explored, along with how it may be used in real life:
It can be argued that the statute theory is the most traditional theory of private international law. Bartolus invented it in Italy in the 13th century. He is frequently cited as this theory’s founder. In order to reconcile problems between the city states’ laws and the then-existing Italian law, he created the statute theory. Depending on the legal subject, the statutes were separated into two sections called Statuta Personalia and Statuta Realia.
- Statutes pertaining to individuals (Statuta Personalia): These laws dealt with people and were applicable to those who resided in a certain region. Even when these domiciled individuals travelled to other territories, the laws of that particular area nevertheless applied to them.
- Statutes pertaining to things (Statuta Realia): These statutes dealt with objects and were primarily territorial in scope.
- Mixed Statutes (Statuta Mixta): Bartolus added a third category to the statutes, nevertheless. Rather than people or objects, this article dealt with acts. This sub-head would cover things like the creation of contracts or agreements, for instance. These were applicable to all actions taken in the area that passed the relevant legislation, even when litigation over those actions took place in another jurisdiction.
Use of Bartolus’s statute theory
While the aforementioned statutory idea appears to be clear-cut and uncomplicated in principle. However, when the theory is used in practice, it reveals several real-world issues that do not exist in theory. It is difficult to determine if anything falls under personalia or realia in such a situation. It fits well within the laws dealing with individuals because it includes people and their private affairs. However, it also makes land transferable, making it eligible to be covered by laws pertaining to objects. To solve this issue, Bartolus distinguished between the two based on the linguistic structure of the legislation. If a person is mentioned in the statute’s wording first, it is deemed to come under personalia. If an object is mentioned first, it is said to be under realia.
Criticism of statute theory
The three maxims Ulric Huber, a Dutch jurist, established for the statute theory during the 17th century as the law developed. He believed that these maxims might be used to create an all-encompassing framework for settling legal disputes.
They were as follows:
- The rules of a State are inviolable, but only inside the boundaries of its sovereign territory.
- Everyone who enters a sovereign’s realm, whether temporarily or permanently, is considered one of his subjects and is subject to his laws as a result.
- Due to comity, however, each sovereign acknowledges that a law that has already been implemented in the nation of its origin should continue to be in effect elsewhere, provided that doing so would not harm the subjects of the Sovereign by whom its recognition is sought.
While the first two maxims i.e. any rule of the nation has absolute authority and that people must abide by it, can be accepted, several academics and legal experts from throughout the world have criticised the last axiom. The Statute Theory lacks a scientific foundation and provides no firm footing upon which a sound and logical system can be built, according to Cheshire & North’s private international law. One can’t expect every country’s legislation to fit him or his means, according to the third maxim. While homosexual marriage is legal in certain nations, it is not in others. The third maxim thus becomes nonsensical and useless.
Another term for this hypothesis is the Von Savigny theory. The older statute argument was categorically rejected by the German jurist in his work on Conflict of Laws, which was published in 1849. The statute theory, in his opinion, is unfinished and unclear.
Savigny argued for a more scientific approach, stating that the challenge is to identify the local law that, in its natural nature, each legal connection belongs to rather than classifying laws according to their objects. Each legal relationship has a natural seat in a specific local law, and when that law diverges from Forum law, it is that local law that must be followed. In this situation, the seat refers to the location of the object or, in the case of a person, where he is domiciled. This theory’s most notable strength is its attempt to resolve each disagreement in light of its unique circumstances and the most pertinent body of law. It encourages adherence to the rules of the legal system of which the parties or items in question are logically a part.
Application of international theory
Savigny has outlined the four main factors that influence the natural seat. Which are:
- The place of residence of a party to a legal relationship.
- The location of an item that is the subject of a legal relationship.
- The location where a legal act is performed.
- The location of a Tribunal.
It is only normal for there to be some kind of contractual arrangement between the parties engaged in every legal connection. Therefore, a legal remedy must be sought if any party to such an agreement should suffer legal injustice.
When determining the domicile of a person who is subject to a legal relationship, one should place more emphasis on the residence of the parties to the contract, the location of the contract’s performance, the location of the breach, and the location of the court i.e. the place where the dispute will be resolved. The lex situs controls the contract if real property is the issue of the dispute, even if it differs from the domicile of either party or both parties.
Criticism of the international theory
The fundamental argument against this idea was that Savigny presupposed that the laws of all nations were uniform. This hypothesis is less trustworthy since there isn’t as much homogeneity in the real world. This is the case because it will be challenging to identify the natural seat of the legal relationship in the absence of such consistency. For instance, a breach of a marriage contract may fall under contract law in certain nations while being regarded as a tort in others. It might be difficult to determine the natural seat of the continuing legal relationship in such circumstances.
This approach also ignores the common law system and the influences of ethnicity, religion, and culture on the laws of other nations. India, for instance, is a nation rich in ethnic and cultural characteristics. Therefore, a country with such a diverse population has laws that vary greatly from region to region and even from village to village.
The territorial theory, also called the theory of acquired rights, was established when Dutch jurist Huber first proposed it in the 17th century since it is based on the idea of territoriality. Common attorneys like Dicey and Beale in England and the United States, respectively, developed it later.
In the simplest terms possible, the argument is that the courts of sovereign nations do not implement foreign law but only acknowledge the effects of foreign law’s operation. This implies that national courts only implement foreign law to the degree that the sovereign has given them permission to do so.
Application of territorial theory
In essence, it implies that a judge is not permitted to arbitrarily apply any foreign law or ruling to any matter he is adjudicating. In all circumstances that call for his judgement, he must fundamentally apply the law of his country.
The Acquired Rights or Territorial Theory seeks to balance the necessity for private international law with the territoriality of the law. Sir William Scott used it in the case of Dalrymple v. Dalrymple (1902). The Hon. Sir William stated that he was to take into account Miss Gordon’s overseas rights, regardless of whence they originated. The idea, in particular, does not permit any court to consider any law other than the fundamental law of the nation.
The argument makes sense when seen from the perspective that no stranger is permitted to enter your home and rule or direct you. An analogy that illustrates this point is when a visitor to Mr X’s home instructs Mr X on how to conduct himself. The principle prevents foreign laws from dictating how Mr X should behave or conduct himself within his own country. It shows respect for the nations where laws are being sought to be implemented, and since it is the judge’s own nation, it is legitimate for him or her to exercise that privilege there.
Criticism of the territorial theory
Dr Cheshire has harshly criticised this specific notion, calling it “unnecessary,” “untrue,” and “unhelpful.” Currently, it also doesn’t receive much support that’s noteworthy. Even though different countries’ laws tend to be distinct from one another, it becomes very difficult to compare them. Many nations, like Nigeria, where the British formerly held sway for a very long time, still adhere to English law, making their legal system compatible with the British. However, this is not feasible in every other country. Foreign rulings and their application constitute a component of the legal system and cannot be disregarded.
The territorial theory effectively contradicts the goal of private international law as a field of study because if it were feasible to resolve every dispute using solely territorial law, then this discussion would not be necessary. However, it is generally known that territorial law does not always suffice to resolve legal disputes.
Local law theory
The territorial idea has been expanded into the Local Law theory, which was put out by Walter Wheeler Cook. Cook emphasised that governing laws should not be developed from the logical arguments of philosophers or lawyers, but rather by looking at prior court rulings. In essence, he emphasised the value of precedents. Cook asserts that each court must effectively create its own set of laws based on earlier rulings. Contrary to territorial theory, it considers the laws of the relevant foreign nation out of social need and practical convenience.
Application of local law theory
The local law states that there is absolutely no reason for any court to reverse a decision made based on local law just because there is a difference with foreign law. Even though the etymologies of all the overlapping rules are not the same, they are all somewhat cohesive in their interpretation and application, and this cannot be denied. Because a nation’s law serves as its ultimate compass, relying on precedents might be considered a legitimate basis for enforcing the law.
Criticism of local law theory
This local law theory, in the opinion of Cheshire, North, and Fawcett, does not provide a foundation for the system of private international law. Because it is a technical dispute that neither clarifies nor resolves anything to tell an English judge who is going to consider a matter with a foreign element that whatever conclusion he makes, he must impose only the law of the Forum. It offers absolutely no guidance about the parameters in which he must take the foreign law into account. However, while precedents can be a useful tool for resolving disputes, they shouldn’t be the primary consideration for making judgments in the future. If a precedent is impeding justice and not living up to its full potential, it should not be enforced any longer. A court should also be prepared to overturn precedent if it later determines that it was the cause of an injustice.
The law must adapt in order to keep up with human evolution. Therefore, it is impossible for any legislation to always be true if it is based just on prior cases. The ability of higher courts to overturn prior rulings from lower courts is a prime illustration of this. In several cases, courts have overturned earlier rulings in light of new information and logical concerns that have emerged as time has passed.
Theory of Justice
As Dr Graveson, the founder of the theory of justice once expressed, “One of English legislative and judicial justice, based on what English statutes say and what English judges do in cases to which the conflict of law applies. It is thus both pragmatic and ethical.” Dr Graveson created the theory of justice intending to provide genuine justice as its only tenet. Ideally, according to Dr Graveson, his theory shouldn’t be applied as a rigid rule in every situation. Rather, his major goal is to administer pure justice while taking previous decisions, morality, and equality into consideration. Graveson acknowledges that his hypothesis is not flawless because there are numerous situations that are impossible to describe using absolutes, and because empirically formed rules in this area of law, like those in other areas of the law, can occasionally result in very difficult specific cases. It leads to the key conclusion that no one theory can adequately address the issue of what constitutes the theoretical underpinnings of private international law.
The main problem in this theory is that one must apply the laws of at least one foreign country, but none is willing to concede to such laws. Giving down to foreign laws and enforcing them when resolving disputes merely amounts to one sovereign losing his sovereignty in front of another.
Cheshire and others point out that such a subjection of one’s sovereignty occurs by free will and is not the result of coercion. However, one has no option when it comes to matters of private international law. Because it includes the interests of many parties who are at odds with one another, it is known as ‘private international law’. Therefore, it is imperative that some kind of foreign law be used to address such conflict of interest matters.
Private International Law in India
In India, private international law is applicable and is particularly pertinent in marriage cases. In situations where private international law is relevant, the party must first accept the Indian court’s jurisdiction. Hence, the jurisdiction is decided upon with the aid of some personal jurisprudence rules, which serve as the linking principles that assist the courts in deciding which law should be used to determine the case’s merits. The foreign party must next go to the court that has jurisdiction, i.e., accept that court’s selection. The foreign court must accept the decision after it has been made before it may be implemented in the foreign state. Every nation has its own norms and laws regarding the recognition and execution of foreign decrees and directives. Hence, the principles of English private law are similar to the personal law regulations in India.
Indian Private law and marital issues
After India gained independence in 1947, laws governing foreign marriages were first debated in August of that year. Therefore, the desire to pass such laws was made in the 23rd Report by the Law Commission of India. Though the Special Marriage Act of 1954 was up for debate in Parliament, it was suggested that it should also apply to unions performed outside of India even when all of the persons involved were Indian citizens.
On February 23, 1959, the Rajasthan Court heard the case of Christopher Andrew Neelakantan vs. Mrs Anne Neelakantan. According to a Judgement made by Justice Modi, a person residing in India who marries an English lady in England (probably in accordance with national law) is eligible for a divorce under the Special Marriage Act of 1954, which establishes the legal divorce process in India. As was made obvious in the Judgement of the case that was exactly cited above by the Rajasthan panel, equity considers the intent rather than the form.
The primary goal of the law is to provide relief or redress to the party who has been wronged, and if there is a technicality that prevents granting that party remedy, the law is sometimes referred to as being useless or aimless.
Issues with the applicability of Private International Law in India
Government neglects the nation’s smallest unit i.e. a family, and if it continues due to the aforementioned problems, it will halt the country’s development. Consequently, there may be anomalies in the couples’ addresses, a multiplicity of their IDs, and the precise location of their dwellings may be undiscoverable. Disputations impose strain on the transportation system as well as the legal system. Even today, lawmakers don’t seem to be promoting equality for both spouses, and the legislation isn’t developed enough to address their problems. Foreigners come to India for their weddings and then depart from the Indian state. In such cases, a woman may get cheated on moving abroad or an innocent husband may get extorted similarly. The court must provide legal support to such victims yet the law typically does not give such a scenario enough emphasis due to conflict in the validity of laws functioning trans-nationally.
Marriage validity on an international level
There should be legislation to ensure that weddings performed there have a high level of international legitimacy. This might be accomplished by giving the wedding officer the authority to decline to solemnise a wedding that, in his opinion, violates the law. The passport office and any other agencies that need it, including those where the foreign national dwells/has citizenship of or is domiciled, must be notified about the wedding. According to the premise of this citation, once a marriage is declared legal, it stays such until it is dissolved by the parties’ mutual agreement or, if the parties believe that they are at fault, by bringing a lawsuit in the jurisdiction where the party who was wronged lives. The law of the land protects the party who chooses to leave India for a foreign country because they value it more highly, and the alternate spouse continues living his or her life normally because the first marriage had no legal standing. This is why marriages solemnised in India must possess international validity to address the issues of this nature that Indians currently face.
Provisions for the reciprocal recognition of marriage
When a foreigner or NRI travels to India and marries an Indian, they are considered to have succumbed to Indian law. In India, if a dishonest or malicious individual breaks the law, others will suffer the consequences. Therefore, the law is uniform in many areas, including Intellectual Property Rights (IPR), Alternate dispute Resolution (ADR), and cyber legislation. Every nation is expected to maintain diplomatic relations and recognise weddings that are held abroad.
Research strategy for issues surrounding Private International Law
Private international law is that area of law that determines how disputes involving nationals of various nations are resolved. When looking into a private international law issue, one will often be asking one or more of the following three questions:
- Which court should have jurisdiction to resolve the conflict?
- Which legislation should be used?
- How should a foreign ruling be put into effect?
The following stages are beneficial when looking into a private international law issue:
- To start, ascertain if the jurisdictions in issue have a conflict of laws policies by looking at each one separately.
- Determine if the subject of the dispute is covered by a treaty or convention.
- Use supplementary sources.
- Examine the laws of other countries and jurisdictions.
Difference between Private International Law and Public International Law
- The body of laws known as public international law governs interactions between sovereign states and other international personalities. On the other hand, private international law governs interactions between Natural or Legal Persons from two separate States.
- International conventions and treaties result in public international law regulations. On the other hand, State legislation establishes the norms governing private international law.
- International pressure and fear, such as the severing of diplomatic ties and the imposition of sanctions, are used to enforce public international law. On the other hand, the relevant State executive is in charge of enforcing private international law.
- Public International Law does not have an established court. On the other hand, private international law courts have predetermined rules.
- For all States, Public International Law is the same. On the other hand, state law and private international law are distinct.
The corpus of treaties, model laws, national laws, legal manuals, and other texts and instruments, known as private international law, governs private interactions that traverse international borders. The dualistic nature of private international law seeks to strike a balance between international consensus and domestic acceptance and application, as well as between government and private sector activity. Private international law is a broad and nebulous area of law that is difficult to define in a way that fully and correctly supports how the law is applied when it conflicts with the law of another country. For judicial policymakers, conflict of laws has developed into a veritable play area. The courts are burdened with a complex and unwieldy corpus of conflicting laws that complicate the judicial process and cause confusion, ambiguity, and inconsistency.
In the modern world, nations must work together since they are so interconnected. The fact that there is now so much global interaction between individuals that it is impossible to turn back the time. In other words, private international law was born out of a worldwide social need, and as long as this need persists, private international law will continue to exist.
Frequently Asked Questions (FAQs)
What is meant by private international law?
The corpus of treaties, model laws, national laws, legal manuals, and other texts and instruments, which govern private interactions that traverse international borders, is called ‘private international law’.
What are important international bodies regulating private international law?
The Hague Conference on Private International Law (HCCH), United Nations Commission for International Trade Law (UNCITRAL), International Institute for the Unification of Private Law (UNIDROIT), European Union (EU), Inter-American Specialised Conferences on Private International Law (CIDIPs) and Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) are some international bodies functioning to govern and uphold private international law.
What is the source of private international law?
The domestic laws of the relevant nations regulate a large portion of private international law. Further, treaties and conventions, model laws, legal handbooks, and other instruments may also be utilised in the current endeavour to develop a more unified system of private international law.
What are the various theories of private international law?
The five main schools of thought in private international law. These theories include the Statute Theory, International Theory, Territorial Theory, Local Law Theory and Theory of Justice.
How is private international law applicable in India?
Foreign judgements and statutes are given importance by the Indian judiciary. For instance, in the cases of marriage, marriages performed under foreign law are valid in India and vice versa.
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