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◈ Private international law/Public international law/Supranational law
◈ Private international law/Conflict of laws: foreign element
◈ „Country” in private international law
◈ Jurisdiction
◈ Choice of law
◈ Recognition and enforcement of foreign judgments
◈ International regulation
◈ Connecting factors
3.
4. Definition and terms
◈ The part of national law called the conflict of
laws, or private international law, establishes
rules for dealing with cases involving a
foreign element (i.e. contact with some
system of foreign law).
◈ The foreign elements may be events which
have taken place in a foreign country or
countries, or they may be the foreign domicile,
residence, or place of business of the parties.
5. Examples
◈ the case may involve a contract between an English and a
Croatian person, made by correspondence, to be performed partly
in England and partly in Croatia or in a third country.
◈ the English court may be hearing a tort case in which an English
defendant's conduct in Paris caused injury to an Italian visitor
there.
◈ Another example is a case in which the English court has to
decide on the validity of a marriage celebrated in Italy between an
English woman and a French man.
◈ Any case involving a foreign element raises potential conflict of
laws issues.
6. Conflict of laws/Private international law
◈ The area of private law involving a foreign element is referred to
as the conflict of laws or private international law.
◈ Conflict of laws is concerned with cases in which the parties or
other relevant issues are connected with more than one country.
◈ Different countries have different laws and there can be a
'conflict' in a sense that more than one country might have
jurisdiction and more than one law can be applied.
◈ Conflict of laws rules indicate which court should have
jurisdiction and which of the 'conflicting' laws should be applied.
7. Private international law
◈ As to the term 'private international law', the subject is
'international' because of the facts of the case, or the
parties to it, are connected with another country or
countries.
◈ It is 'private' as opposed to 'public' international law
because it is not concerned with relations
between states, but with disputes between persons
arising out of their marriages, contracts, wills, torts
and other private law matters.
8. The meaning of a ‘country’ in private international
law
◈ For the purposes of the conflict of laws, a 'country' is any
territorial unit having its own separate system of law,
whether or not it constitutes an independent state politically.
◈ In this respect, England, Scotland and Northern Ireland are
separate countries because they have separate legal systems.
On the other hand, Wales is not a country, because its system
of law is the same as that of England. The United Kingdom
cannot be the relevant country for the purposes of those
branches of private law for which there is no such thing as
the law of the United Kingdom.
9. The meaning of a ‘country’ in private international
law
◈ Each of the states in the United States, each Canadian province
and Australian state is a separate country.
◈ One needs to know, for instance, whether a tort was committed in
Ontario, not whether it was committed in Canada.
◈ To be sure, it does not follow that a country, for conflict of laws
purposes, cannot coincide with a sovereign independent state.
◈ They usually coincide because many states have a uniform legal
system throughout their territory.
10. Issues to be decided in conflict of law cases
◈ 1. Which court has jurisdiction to decide the
case?
◈ 2. Which law should be applied?
◈ 3. How will foreign judgment be recognized
and enforced?
11. Jurisdiction.
◈ The first point which has to be decided is
whether a national court has jurisdiction to
deal with the case.
12. Choice of law
◈ If a national court does exercise jurisdiction, the next question is whether
in deciding a case it will apply the rules of national law or those of a
foreign country with which the case has connections.
◈ The rules that determine which law the court applies in a case involving
foreign elements are called choice of law rules.
◈ Once the relevant choice-of-law rule has been established, this will point
the court to a factor that connects the dispute to the legal system of a
particular country.
◈ This is called a 'connecting factor'.
◈ .
13. Connecting factors
◈ Some connecting factors point to the law of the place
where an event or transaction took place, such as the
place of celebration of marriage.
◈ Other connecting factors point to a law that is
connected to a person that is involved in the dispute,
such as the law of their domicile or habitual
residence.
◈ Questions of title to immovable property are governed
by the law of the country in which the property is
situated
14. Recognition and enforcement of foreign judgments
◈ The question is whether the judgments of foreign
courts can be given effect in another country.
◈ Suppose a claimant, having obtained a judgment
against an English defendant in a New York court for
damages for breach of contract, wishes to have the
judgment satisfied out of the defendant's assets in
England. Will the New York judgment be enforced, or
will the claimant have to bring new proceedings in the
English court to establish the claim?
15. Recognition and enforcement of foreign judgments
◈ Alternatively, the question may be the recognition of a
foreign divorce.
◈ A husband and wife living in England are Muslims;
the husband pays a visit to a Muslim country of which
he is a citizen where he divorces his wife under
Islamic law. Is the divorce effective in England?
◈ Answering these questions is the third and final task of
private international law.
16. International regulation
◈ Originally, all three 'conflict of law' questions were
determined by domestic law, but today the area is
subject to increasing international and European
regulation.
◈ In some areas of law, there are international
treaties governing conflict of law issues.
◈ .
17. International regulation
◈ These treaties can work by unifying the internal laws of the
signatory states on a given topic, for instance the Montreal
Convention of Unification of Certain Rules for International
Carriage by Air (1999).
◈ Alternatively an international treaty may implement a co-
operative procedure which requires mutual recognition of
foreign rulings.
◈ These treaties do not interfere with substantive domestic law.
For example, arbitration proceedings that take place in
England are governed by the Arbitration Act 1996
18. International regulation
◈ By signing an international treaty, a signatory
state makes a commitment to adhere to the
principles of the treaty.
◈ Where other states make the same
commitment, this ensures a level of
consistency in how cross-border issues are
treated.
19. The Hague Conference on Private International Law
◈ formed in 1893 to "work for the progressive unification of
the rules of private international law".
◈ pursued this goal by creating and assisting in the
implementation of multilateral conventions promoting the
harmonisation of conflict of law principles
◈ about 30 international conventions focusing on the rules of
conflict of laws
◈ 74 state members
20. International instruments
◈ The Vienna Convention on the International
Sale of Goods (1988)
◈ Rome Convention on the the Law (1980)
Applicable to Contractual Obligations
◈ UNIDROIT (The International Institute for
the Unification of Private Law ): 63 Member
States
21. Summary
◈ Conflict of laws (private international law):
private law containing a foreign element
◈ Choice of laws
◈ Choice of forum
◈ Recognition and enforcement of foreign
judgements
