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Private International Law

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Title: Private International Law  
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Private International Law


Private international law concerns relations across different legal jurisdictions between persons, and sometimes also companies, corporations and other legal entities.[1][2]

Choice of laws

Courts faced with a choice of law issue have a two-stage process:

  1. the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and
  2. it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper law has become a more common choice.

Private international law on marriages and legal dissolutions of marriages (divorce)

Main article: Marriage (conflict)

In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. For example, Saskatchewan Canada stands alone as a province in Canada that allows more than one spouse at a time per person.[3] Each province has similar marital property laws, but what happens when one or more provinces ignore the federal polygamy law? In this case some of the spouses receive/give marital property from two or more simultaneous spouses, while others may only receive/give from one spouse only, depending on whether their home province allows polygamy. The case becomes even more complicated if foreign elements are thrown into the mix, such as when the place of marriage is different from the territory where divorce was filed; when the parties' nationalities and residences do not match; when there is property in a foreign jurisdiction; or when the parties have changed residence several times during the marriage.

Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when married couples enter a property agreement, stringent requirements are imposed, including notarization, witnesses, special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, free will, lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context.

Private international law on unmarried persons

Unlike marriage which has an international recognised legal status, there are no international treaties on recognition of unmarried couple's legal status. If an unmarried couple change residence to different countries, then the local law on where the couple is last domiciled is applied to them. This covers, legal; status of the relationship, rights, obligations and all worldwide movable and immovable property. To otherwise interpret the law would mean if the unmarried couple had assets in several different countries, they would then need separate legal cases in each country to resolve all their movable and immovable property.

In the absence of a valid and enforceable agreement for an unmarried couple, here’s how the conflict of law rules work:

  • Full Mutability Doctrine - property relations between the unmarried couples are governed by their latest domicile, whether acquired before, during or after the relationship.

Contracts

Many contracts and other forms of legally binding agreement include a jurisdiction or arbitration clause specifying the parties' choice of venue for any litigation (called a forum selection clause). Then, choice of law clauses may specify which laws the court or tribunal should apply to each aspect of the dispute. This matches the substantive policy of freedom of contract. Judges have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction. Obviously, this judicial acceptance of subjective intent excludes the traditional reliance on objective connecting factors, but it does work well in practice.

Harmonization of laws

To apply one national legal system as against another may never be an entirely satisfactory approach. The parties' interests may always be better protected by applying a law conceived with international realities in mind. The Hague Conference on Private International Law is a treaty organization that oversees conventions designed to develop a uniform system. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues. There is a general recognition that there is a need for an international law of contracts: for example, many nations have ratified the Vienna Convention on the International Sale of Goods, the Rome Convention on the Law Applicable to Contractual Obligations offers less specialized uniformity, and there is support for the UNIDROIT Principles of International Commercial Contracts, a private restatement, all of which represent continuing efforts to produce international standards as the internet and other technologies encourage ever more interstate commerce. But other branches of the law are less well served and the dominant trend remains the role of the forum law rather than a supranational system for Conflict purposes. Even the EU, which has institutions capable of creating uniform rules with direct effect, has failed to produce a universal system for the common market. Nevertheless, the Treaty of Amsterdam does confer authority on the Community's institutions to legislate by Council Regulation in this area with supranational effect. Article 177 would give the Court of Justice jurisdiction to interpret and apply their principles so, if the political will arises, uniformity may gradually emerge in letter. Whether the domestic courts of the Member States would be consistent in applying those letters is speculative.

See also

Notes

References

  • American Law Institute. Restatement of the Law, Second: Conflict of Laws. St. Paul: American Law Institute.
  • Dicey and Morris on the Conflict of Laws (13th edition) (edited by Albert V. Dicey, C.G.J. Morse, McClean, Adrian Briggs, Jonathan Hill, & Lawrence Collins). London: Sweet & Maxwell 2000.
  • CILE Studies (Center for International Legal Education - Private Law, Private International Law, and Judicial cooperation in the EU-US Relationship
  • Briggs, Adrian, The Conflict of Laws, Oxford: Oxford University Press 2002.
  • North, Peter & Fawcett James. (1999). Cheshire and North's Private International Law (13th edition). London: Butterworths.
  • Reed, Alan. (2003). Anglo-American Perspectives on Private International Law. Lewiston, N.Y.: E. Mellen Press.
  • Gary Born, International Commercial Arbitration (2009) (Kluwer).
  • Gralf-Peter Calliess, The Rome Regulations: Commentary on the European Rules of the Conflict of Laws (2010) (Kluwer).

External links

  • The European Institute for International Law and International Relations
  • CONFLICT OF LAWS .NET - News and Views in Private International Law
  • American Society of Comparative Law Official website
  • ASIL Guide to Electronic Resources for International Law
  • Hague Conference on Private International Law official website.
  • for Comparative and International Private Law
  • British Institute of International and Comparative Law
  • International Chamber of Commerce
  • International Court of Arbitration
  • International Institute for the Unification of Private Law(UNIDROIT)
  • United Nations Commission for International Trade Law
  • Private International Law Database
  • , by Chris Sprigman
  • EEC Rome convention 1980
  • International & Foreign Law Community
  • Republic of Argentina v NML Capital Ltd [2010] Argentina
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