private international law assignment

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Private International Law in English Courts 2e (2nd Edition)

Prof adrian briggs.

Private International Law in English Courts, in its Second Edition, provides a statement of the rules of private international law—jurisdiction, applicable law, and foreign judgments—which regulate and govern in proceedings before the courts of England and Wales in 2023. It seeks to explain the rules in a logical and accessible way, but also to question or criticize them where this is necessary for their better understanding. It makes reference to decided cases and other authority to the extent that this is necessary to vouch for the law as described, while being attentive to the risk of allowing the detail to obscure the principles. The greatest challenge will be seen to have been to deal with the untidy consequences—superficial as well as fundamental—of leaving the European Union, and the system of laws increasingly governing it, in these three areas of private international law. The aim is to produce a coherent statement of the law which can be relied on by those in legal practice as well as those aspiring to that calling. Assessed from that point of view the aim is very similar, but the product very different, from the First Edition.

Bibliographic Information

Affiliations are at time of print publication..

Prof Adrian Briggs, author

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Series Editors’ Preface
Author Preface
Summary of Contents
Court of Justice of the European Union (Court of Justice) (chronological order)
Statutory Instruments
Regulations
Cayman Islands
New Zealand
Switzerland
United States
International Conventions, Treaties, Agreements
A Introduction
(1) Territoriality
(2) Equity operates in personam
(a) The consequences of agreement, and of holding people to theirs
(b) The consequences of submission
(c) Even-handedness in disputes over the jurisdiction of the court
(a) Parliamentary legislation
(i) Employment law
(ii) Other examples
(iii) A presumption of territoriality
(iv) Foreign statutes
(5) Judicial development of the common law rules
(6) Terminology
(a) Membership of the European Union and Private International Law
(b) Nature and purpose of EU laws
(c) Impact on the rules and methods of the common law conflict of laws
(a) The outline
(b) Provisions of EU law revoked and deleted by Parliament
(c) Provisions of EU law made or retained by Parliament
(d) Other laws which should be mentioned in the same breath
(a) The rules of the conflict of laws must identify the foreign law as applicable
(b) If foreign law is potentially applicable, it cannot apply unless it is pleaded
(i) The rules of foreign law are to be established by witness evidence
(ii) Witness expertise in foreign law
(iii) The meaning of the rules of foreign law when the content is debatable
(iv) Re-thinking the method of proving the content of the rules of foreign law
(v) Failing to establish the content of rules of applicable foreign law
(vi) Failing even to try to adduce evidence of the rules of foreign law relied on
(d) Foreign law may be applied unless contradicted by English legislation or rules of public policy
(e) Alternative approaches
(f) The precise application of foreign law
(i) Equitable issues
(ii) Restitutionary issues
(b) The identification of issues
(i) Parental consent to marriage
(ii) Another example: succession and contemporaneous death
(d) Formulating the precise question
(a) Three possible interpretations of ‘law’
(i) Applicable law conflicts rule formulated as domestic law
(ii) Applicable law conflicts rule formulated as law which a foreign court would apply
(iii) Relevance to characterization
(4) The treatment of incidental questions of applicable law
(5) The nature of common law connecting factors in general
(i) Domain of the common law of domicile
(ii) Domicile of origin
(iii) Domicile of choice
(iv) Domicile of dependency
(b) Residence
(c) Nationality
(a) Reading limitations into an English statute
(i) Employment and unfair dismissal
(ii) Other statutes
(d) Powers given to bodies which are not courts
(e) Applying an English statute ‘by analogy’
(8) The common law principle of comity
(9) The legacy of the separate history of common law and equity
(a) The distorting effect of characterization
(b) Selection between potentially connected domestic laws
(c) New technology
(i) Legal personality and standing to sue
(ii) Form of trial and giving of evidence
(iii) Acquisition of evidence
(iv) Interlocutory relief
(v) Burden of proof and presumptions
(i) Quantification of damages
(ii) Other remedial orders
(iii) Interest
(iv) Priorities
(c) Estoppels
(i) Currency of judgment
(ii) Limitation of actions
(i) Foreign penal laws
(ii) Civil recovery from criminal wrongdoer
(iii) Foreign revenue laws
(i) Recognition or indirect enforcement
(c) Other public laws; laws of a sovereign character; claims in a governmental interest
(d) A modern problem: states and the costs of medical care
(a) Inherently disgraceful foreign laws
(b) Contextual evaluation of foreign law
(c) Public policy of foreign systems
(d) A different kind of public policy?
(a) Application of EU law as though the United Kingdom were still a Member State
(b) The interpretation of retained EU laws
(c) The general principles of EU law that will apply to retained EU laws
(d) The interpretation of English law which is derived from rules of EU law but which were not retained as such
(e) Rulings of the European Court given before and after 31 December 2020
(f) The Supreme Court and the pre-2021 case law of the European Court
(g) The Court of Appeal and the pre-2021 case law of the European Court
(h) The status of questions of EU law before an English court
(a) Personal jurisdiction
(b) Subject-matter jurisdiction
(c) Jurisdiction to rule on jurisdiction
(a) Common law non-jurisdiction: title to foreign land and foreign patents
(b) Statutory removal of common law jurisdiction: defamation claims
(i) State and sovereign immunity: partial and personal immunity
(ii) Foreign acts of state: immunity of subject matter from examination
(iii) Foreign acts of state: exceptions to the rules
(d) Cases mis-described as involving subject matter jurisdiction
(a) Common law jurisdiction: service on a defendant present within the jurisdiction
(b) International convention given effect in English law
(c) Legislation allowing service in England on an agent or representative
(d) Legislation giving court power to authorize service out of the jurisdiction
(e) Legislation creating jurisdiction and giving claimant the right to serve out of the jurisdiction
(f) Discretion in relation to the existence and exercise of jurisdiction by service
(i) The law that governs a choice of court agreement
(ii) The meaning of a choice of court agreement: material scope
(iii) The meaning of a choice of court agreement: personal scope
(iv) The meaning of a choice of court agreement: exclusive or otherwise
(v) The meaning of a choice of court agreement: the nature of interpretation
(vi) The validity of a choice of court agreement in a contract whose validity is impugned
(vii) The validity of a choice of court agreement: invalidity of the agreement itself
(viii) The nature of choice of court agreements in the common law system
(ix) Consequences of breach of choice of court agreement
(b) Jurisdiction agreements under the former Brussels/Lugano scheme
(c) The 2005 Hague Convention on Choice of Court Agreements
(i) Service and jurisdiction; jurisdiction and service
(ii) Common law jurisdiction resulting from service within the jurisdiction
(b) Responding to service by making no objection to the jurisdiction
(c) Responding to service by contending that the court has no jurisdiction
(d) Mechanism for challenging the jurisdiction resulting from service
(i) Admissibility of plea of forum non conveniens
(ii) Structure of analysis of plea of forum non conveniens
(iii) First limb of the Spiliada enquiry
(iv) Second limb of the Spiliada enquiry
(v) Conclusion of the Spiliada enquiry
(vi) An alternative approach to a plea of forum non conveniens
(i) English proceedings brought contrary to arbitration agreement
(ii) English proceedings brought contrary to choice of court agreement to which 2005 Hague Convention applies
(iii) English proceedings brought in breach of choice of court agreement to which 2005 Hague Convention does not apply
(c) Stay imposed as matter of case management
(i) The context in which these provisions apply
(ii) The definition of a consumer for the purposes of these provisions
(iii) The identification of a contract as a consumer contract
(iv) Proceedings that relate to a consumer contract
(v) The applicable rules of jurisdiction
(vi) The definition of employee for the purposes of these provisions
(vii) The definition of the contract as one of individual employment
(viii) Proceedings that relate to a contract of employment
(ix) The applicable rules of jurisdiction
(x) The nature of jurisdiction created under Section 15A
(i) English choice of court agreements within the 2005 Hague Convention
(ii) General conditions for the 2005 Convention to apply to the agreement
(iii) Exclusive choice of court agreements
(iv) Creation or recording of exclusive choice of court agreement
(v) Interpretation and validity of exclusive choice of court agreement
(vi) English choice of court agreements and the Hague Convention: summary
(vii) English choice of court agreements outside the 2005 Hague Convention
(c) Other cases in which the court has jurisdiction despite the absence of the defendant
(i) Jurisdictional grounds or gateways
(ii) The proper place to bring the claim
(iii) Merits of claim sufficient to avoid being struck out summarily
(i) The statutory gateways to jurisdiction
(ii) Satisfying the conditions of the gateway rule: the good arguable case test
(iii) Interpreting the gateway rules: legal meaning
(iv) Stricter or laxer interpretation of the gateway rules
(v) Utility of the gateway requirement?
(c) The strength of connection to England
(d) The merits of the substantive claim
(i) Paragraph (1): claims against English domiciliaries
(ii) Paragraph (1A): claims arising from English branches or agencies, &c
(iii) Paragraph (2): injunctions
(iv) Paragraph (3): necessary or proper parties to the claim
(v) Paragraph (4): Part 20 claims (necessary or proper party to the defence)
(vi) Paragraph (4A): necessary or proper further claims
(vii) Paragraph (5): interim remedies
(viii) Paragraph (16A): declarations of non-liability
(ix) Paragraph (18): third-party costs orders
(x) Paragraph (24): Contempt applications
(xi) Paragraph (25): Information orders against non-parties
(i) Paragraph (6): a contract
Contract made in England.
Contract concluded by acceptance of offer received in England.
Contract made through agent in jurisdiction.
Contract governed by law of England and Wales.
(iii) Paragraph (6): the nature of the claim
(iv) Paragraph (8): claims which deny the contract
(v) Paragraph (7): claims in respect of a breach of contract
(vi) Paragraph (8A): aiding and abetting the breaking of contract
(i) Paragraph (9): a claim made in tort
(ii) Paragraph (9): defamation
(iii) Paragraph (9)(a): damage sustained within the jurisdiction
(iv) Paragraph (9)(b): an act committed within the jurisdiction
(v) Paragraph (9): claim governed by law of England and Wales
(vi) The proper place requirement in the context of claims made in tort
(vii) Paragraphs (21) to (23): breach of confidence and misuse of private information
(i) Paragraph (11): claims about property within the jurisdiction
(ii) Paragraphs (12) to (15A): a trust
(iii) Paragraph (12): claims in respect of a trust governed by English law
(iv) Paragraph (12A): trusts with English jurisdiction clauses
(v) Paragraph (12B): trusts designating England as place of administration
(vi) Paragraph (12C): trusts created in England
(vii) Paragraph (12D): declarations that no trust has arisen
(viii) Paragraph (12E): breach of trust within the jurisdiction
(ix) Paragraph (15): claim against trustee of constructive or resulting trust
(x) Paragraph (15A): aiding and abetting a breach of trust
(xi) Paragraphs (13) and (14): administration, probate, and wills
(i) Paragraph (15B): claim for breach of fiduciary duty
(ii) Paragraph (15C): aiding and abetting a breach of fiduciary duty
(iii) Paragraph (15D): declarations that no fiduciary duty has arisen
(f) Claims for restitution
(g) Claims about enforcement of judgments and awards
(h) Claims arising under various statutes
(10) Jurisdiction over defendant not present in England (IV): disputing the grant of permission to serve defendant out of the jurisdiction
(a) Jurisdiction within the United Kingdom in civil and commercial matters
(b) Jurisdiction within the United Kingdom not in civil and commercial matters
(a) The current position, in outline
(b) Where might we look, and what might be found there?
(c) The law
(d) Procedure
(a) Service in accordance with the 1965 Hague Service Convention
(b) Service where there is no Convention with the state in which service will be made
(a) Obtaining evidence via the 1970 Hague Evidence Convention
(b) Obtaining evidence by formal means where there is no convention
(c) Obtaining evidence by non-formal means
(d) Evidence (Proceedings in Other Jurisdictions) Act 1975
(a) The freezing injunction: general
(b) Jurisdiction to make the order; service of the document claiming the relief
(c) The location of the property referred to in the order: English law
(d) The effect on non-parties, or persons not directly addressed by the order
(i) Assisting the proceedings before the foreign court
(ii) Assisting the claimant to enforce a prospective judgment of a foreign court
(4) Judicial assistance to the defendant, by ordering security for costs
(i) Irrelevance of fact that the foreign court sees no wrong
(ii) Interference as an indirect but inescapable consequence
(iii) Irrelevance of foreign rules of jurisdiction
(iv) Discretion in the granting of relief
(v) The need for caution
(i) Personal jurisdiction over the respondent
(ii) Grounds for relief
(iii) Injunction to enforce a legal right not to be sued in the foreign proceedings
Single forum cases.
(v) Injunction to protect and defend the English court’s jurisdiction
Injunction to restrain third party enforcing (derived) rights created by another’s contract.
Injunctions and others positioned just outside choice of court agreements.
Injunction to restrain wrongful enforcement of a foreign judgment.
Injunction to restrain an overseas arbitration.
Injunctions to restrain excesses of jurisdiction by a foreign court.
Anti-anti-suit injunctions.
Interim anti-suit injunctions.
Developments in France and Germany.
(a) Protection of Trading Interests Act 1980, Section 6
(b) Bringing substantive, contradictory, proceedings before the English court
(c) Claim for compensation for loss caused by litigation in breach of contract
(a) Introduction
(b) Basic principles of the common law rules, in outline
(c) Comparison with statutory schemes
(d) The common law and its foundations
(a) Personal connection of the losing party to the foreign court
(i) Presence rather than residence on the material date
(ii) Presence and federal systems
(iii) Presence of corporations
(iv) Presence and modern methods of doing business
(c) Agreement ante litem to accept jurisdiction of the court: choice of court agreement
(i) Judgments given against the claimant
(ii) Voluntary appearance to writ by defendant and agreement to the jurisdiction
(iii) Appearance for the purpose of contesting to jurisdiction
(iv) Pragmatism: Section 33, submission, agreement, estoppel, and consent
(v) Submission to jurisdiction of a supervising court
(e) No other foundation for obligation to abide by a foreign judgment
(i) Judgment from a court
(ii) Judgment not final and conclusive
(iii) Judgment not a judgment on the merits
(iv) Judgments giving effect to foreign judgments
(i) No obligation to abide by judgment contrary to English public policy
(ii) No obligation to abide by judgment resulting from unfair trial
(iii) Recognition of judgment barred by European Convention on Human Rights
(iv) No obligation to abide by judgment obtained by suing in breach of contract
(v) No obligation to abide by foreign judgment obtained by fraud
(c) Objections which do not vitiate the obligation to abide by the judgment
(a) Bringing proceedings to collect the judgment debt
(b) Limitation
(c) Judgments for damages not yet quantified
(i) Judgments to which Protection of Trading Interests Act 1980 applies.
(ii) Judgments for excessive damages
(iii) Judgments for inappropriately small damages
(iv) Judgments contrary to English immunity
(e) Judgments which enforce foreign penal, revenue, or public laws
(f) Foreign non-money judgments
(a) Estoppel by judgment
(b) Estoppel and reasons for judgment
(c) Estoppel and matters which were not raised
(d) Estoppel and non-parties
(e) Recognition, parties, and obligations
(f) Successful claimants who wish to sue for a second time
(g) Issue estoppel and judicial discretion
(a) Judgments regarded as judgments in rem
(b) Recognition of judgments resulting from new forms of civil procedure
(i) Judgments from the natural forum
(ii) Judgment from court which departed from the parties’ choice of law
(iii) Too late for judicial reform
(a) Registration under Administration of Justice Act 1920
(b) The statutory scheme
(c) Particular points
(d) Brexit and Hague
(a) Judgments to which the 1933 Act applies
(c) Specific points
(9) Judgments registrable under the 1982 Act: UK judgments
(a) Registration of judgments covered by the 2005 Convention
(i) General approach to appeals against registration
(ii) The Article 9 grounds of appeal
(iii) Other grounds for refusal or setting aside of registration
(c) Effect of registration
(d) Other matters in brief
(e) Judgments which may become registrable under the 1982 Act: 2019 Judgments Convention
(a) Proceedings and judgments to which Part 6 applies
(b) Judgments taking effect under recast Brussels I Regulation 1215/2012
(c) Judgments taking effect under Brussels I Regulation 44/2001
(d) Judgments taking effect under the Lugano Convention
(12) Judgments taking effect according to particular international conventions
(1) Terminology and the Rome I Regulation
(2) The relationship between the Regulation and the law applied to cases outside it
(3) The conflicts rules prior to the Rome Convention and Rome Regulation
(a) Limiting the freedom to make a choice of law as proper law
(5) The nature of a term choosing the proper law as severable from the contract
(6) The Rome Convention
(a) Interpretation of the retained Rome I Regulation
(i) Choice of law made by the parties
(ii) Governing law ascertained by the court when the parties have not chosen it
(c) Displacement of governing law
(d) Application of the governing law
(8) Governing law where or when the Rome I Regulation does not apply
(1) Applicability of the Rome I Regulation: civil and commercial matters
(a) Temporal scope of the retained Rome I Regulation
(b) Relationship with the Rome Convention
(c) The effect of international conventions made before the Regulation
(a) The meaning of ‘contractual’
(b) Cross-reference to the revoked Brussels I Regulation
(c) ‘Contractual’ obligations: the boundary between contract and non-contract
(d) Contractual obligations affecting non-parties
(e) Voluntary assumption of liability to another without contract
(f) Concurrent obligations
(g) Identification or ascertainability of the counterparty
(ii) Intangibles
(iii) Contracts for the sale of land
(iv) Retention of title
(i) Conclusions
(a) Revenue, customs, administrative matters
(b) Specific exclusions of distinct matters
(c) Exclusion of evidence and procedure
(a) The duty of the court to apply the governing law
(b) The meaning of ‘law’
(c) Non-systems of law, or systems of non-law
(d) A conflict of laws
(a) Choice of law made by the parties
(i) Choice of law and non-standard wording
(i) Contracts on standard forms
(ii) Connections to another contract
(iii) Place for resolution of disputes
(i) Choice of law to govern part of the contract
(ii) Choice of a new governing law
(iii) Choice of law and non-derogable provisions of another law
(iv) Choice of law and non-derogable provisions of retained EU law
(v) Choice of law called into question or denied
(i) Natural persons
(ii) Companies
(b) General approach to governing law in the absence of choice by the parties: Article 4
(c) Connection to a country in the absence of choice
(i) Contracts for sale of goods and for provision of services
(ii) Contracts of franchise and of distribution
(iii) Contracts relating to rights in rem and to tenancies of immovable property
(iv) Contracts within a multilateral system for financial instruments
(e) Governing law where the Article 4(1) list does not indicate a law
(f) Escape from the indicated law—manifestly closer connection to another country
(g) Governing law where neither list nor characteristic performance indicates a law
(i) Carriage of goods
(ii) Contract for the carriage of passengers
(i) Article 6(1) contracts: the contracts covered by the special rule in Article 6(1)
(ii) Article 6(1) contracts: the consumer
(iii) Article 6(1) contracts: the professional
(iv) Article 6(1) contracts: excluded contracts
(v) Article 6(1) contracts: the governing law
(vi) Contracts which are not within Article 6(1)
(c) Governing law for contracts of insurance: Article 7
(i) Employment contracts: the contracts covered
(ii) Employment contracts: the governing law
(iii) Displacement of one governing law by another
(i) Interpretation and construction
(ii) Performance and other discharge
(iii) Assessment of damages
(iv) Limitation and prescription and other extinguishing of claims
(v) Consequences of the nullity of the contract
(vi) Performance
(b) Formal validity of contract
(c) Capacity to contract
(d) Parties and privity
(i) Assignments en bloc
(ii) Subrogation
(10) Law applicable to disputes concerning formation
(a) Multiple liability: Article 16
(b) Set-off: Article 17
(a) Provisions of law from the law of country with which the contract is otherwise wholly connected
(b) Provisions of retained European law when the contract is wholly connected to the United Kingdom and all the Member States:
(i) Consumer contracts
(ii) Employment contracts
(i) Objections from public law: international sanctions
(ii) Objections from private law: penalties and freedom to trade
(e) Overriding mandatory provisions of the law of the country of performance
(f) Public policy of the forum
(a) Issues falling outside the temporal scope of the Rome I Regulation
(b) Contractual obligation but not in civil or commercial matters
(i) Status and capacity of natural persons
(ii) Contractual obligations arising out of family relationships
(iii) Contractual obligations arising out of matrimonial property regimes, or out of wills and succession
(iv) Contractual obligations arising under bills of exchange, promissory notes, and negotiable instruments
(v) Agreements on arbitration and choice of court
(vi) Questions governed by the law of companies and their internal relationships
(vii) Whether an agent is able to bind a principal in relation to a third party
(viii) Whether an organ is able to bind a company or other body, corporate or unincorporated, in relation to a third party
(ix) The constitution of and internal relationships of trusts
(x) Obligations arising out of dealings prior to the conclusion of a contract
(xi) Issues of evidence and procedure
(i) The scope and effect of the Rome Convention
(ii) Choice of governing law by the parties: the general rule
(iii) Governing law in the absence of choice by the parties: the general rule.
(iv) Particular choice of law rules for specific contractual obligations
(v) Disputes as to the formation or existence of a contractual obligation
(vi) The issues to which the governing law is applied
(vii) Displacement of the applicable law identified by the Rome Convention
(i) Ascertainment of the proper law
(ii) Actual intention as to proper law
(iii) Inferred or implied intention as to proper law
(iv) Proper law as the law having the closest and most real connection
(v) Floating choice of law
(vi) Disputes as to existence of contract
(vii) Application of the proper law
(viii) Illegality
(ix) Capacity
(x) Performance and breach
(1) The various schemes making up the English conflicts rules
(2) The strange history of common law conflicts rules for tort claims
(a) Common law conflicts rule: double actionability, with some flexibility
(b) Parliamentary reform of the common law rules
(c) Obligations which were neither contractual nor tortious
(a) Relationship with other Regulations
(i) General rule for torts
(ii) Specific rules for certain torts
(iii) Non-contractual obligations other than torts
(d) Displacement of the applicable law
(e) Role of the applicable law
(f) Ancillary issues
(1) Applicability of the Rome II Regulation: civil and commercial matters
(2) Applicability of the Regulation: temporal scope
(a) ‘Non-contractual’
(b) ‘Obligations’
(c) Wrongs in relation to possession
(d) Wrongs in relation to confidential information
(a) Revenue, customs, administrative matters; liability of state authorities
(b) Specific non-inclusion of distinct matters
(c) Privacy, personality, and defamation
(d) Evidence and procedure
(a) Universal application
(b) A conflict of laws
(d) The law of a country
(a) Structure of the general rule
(b) General rule where the parties had the same habitual residence
(ii) Immediate, not consequential, damage
(iii) Nervous shock, dependency, and bereavement
(iv) Damage to multiple victims
(v) Developing illnesses
(vi) Interfering with property
(vii) Loss which is solely financial
(viii) Damage to reputation or esteem
(ix) Conclusion
(i) Manifestly closer connection of tort to another country
(ii) Manifestly closer connection based on pre-existing relationship
(i) Damage caused by a product
(ii) Nature of product liability
(iii) Marketing
(iv) Identification of applicable law
(v) Claimant-oriented identification of applicable law
(vi) Defendant-oriented balancing provision
(vii) Failure of Article 5 to yield an applicable law
(viii) Escape clause
(i) Unfair competition
(ii) Restriction of free competition
(iii) No escape clause or contrary agreement
(i) Nature of environmental damage
(d) Infringement of intellectual property rights: Article 8
(e) Industrial action: Article 9
(i) Nature of unjust enrichment
(ii) Parties to a concurrent relationship
(iii) As between parties with a common habitual residence
(iv) Place of unjust enrichment
(v) Escape clause
(b) Negotiorum gestio (benevolent intervention in the affairs of another)
(i) Rome I or Rome II Regulation?
(ii) The applicable law where a contract was concluded
(iii) Contract was not concluded but the ‘governing law’ can be identified
(iv) Where Article 12(1) is not able to yield an applicable law
(d) Intellectual property rights
(i) The persons who may choose the law
(ii) When and how and to what extent the law may be chosen
(b) Choice of place for resolution of disputes
(c) Further limitations on agreement on applicable law
(d) Form of agreement
(e) Non-contractual obligations for which the law may not be chosen
(f) De facto choice of the law of the forum
(g) Choice of law to govern obligations arising from pre-contractual relations
(h) Deducing a choice of law for non-contractual obligations from the lex contractus
(i) No-fault compensation
(b) Exemption and division of liability
(i) Sum assessed by jury
(ii) Fixed numerical sum
(iii) Moderation of the figures
(i) Interest
(e) Other issues
(a) Rules of safety and conduct
(b) Direct action against the insurer of the person liable: Article 18
(c) Subrogation
(d) Multiple liability
(e) Formal validity
(i) Relationship to the definition used in Rome I
(i) Punitive damages
(c) Relationship with other provisions of retained EU law
(d) Relationship with existing international conventions
(i) Temporal scope
(ii) Material scope
(i) Non-contractual obligations arising out of family relationships
(ii) Non-contractual obligations arising out of matrimonial property regimes, or out of wills and succession
(iii) Non-contractual obligations arising under bills of exchange, promissory notes, and negotiable instruments
(iv) Non-contractual obligations arising out of the law of companies and their internal relationships
(v) Non-contractual obligations arising out of the relationships internal to a trust
(vi) Non-contractual obligations arising out of nuclear damage
(vii) Non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation
(viii) Issues of evidence and procedure
(a) Tort committed in England before 1 May 1996
(b) Tort committed outside England before 1 May 1996
(c) Tort, except defamation, committed (anywhere) after 30 April 1996
(d) Tort in the nature of defamation committed before 1 January 2014
(e) Tort in the nature of defamation committed after 31 December 2013
(f) Unjust enrichment
(a) The distinction between movable and immovable property
(b) The situs of tangible property
(i) The situs of an intangible: principle
(ii) The situs of an intangible: particular cases
(iii) Whether the situs of an intangible is useful or coherent
(d) The challenges presented by new forms of intangible (quasi- or not quasi) property
(e) The role of the doctrine of renvoi in the private international law of property
(i) Not limited to cases where title in dispute
(ii) Exclusion of claims for trespass to foreign land
(i) Penn v Baltimore
(ii) Unconscionable behaviour as the basis for jurisdiction in equity
(iii) Torts and foreign land
(iv) Civil Jurisdiction and Judgments Act 1982, Section 30
(v) Jurisdiction and the effect of the revoked Brussels I Regulation
(c) Applicable law: the lex situs and what it means
(d) Foreign judgments adjudicating title to land in England
(a) The applicable law rule: the lex situs at the time of dealing
(b) The meaning of the lex situs, and the principle of renvoi
(i) The case of vanishing artworks
(ii) Transactions relating to a ship
(i) Goods in transit
(ii) Public policy
(iii) Documentary transfers
(e) Actions brought to recover things
(a) The nature of intangible property and the problem of applicable law
(b) The assignment of contractual rights
(c) The assignment of the benefit of other obligations
(i) Indirectly held securities
(i) Repeated assignments
(ii) Assignment en bloc
(iii) What happens when a right is assigned?
(5) Intellectual property and ordinary dealings with intellectual property
(i) Where the foreign state has completed the process of acquisition under its law
(ii) Where the state has not yet taken control of the property
(iii) Legislative acquisition of title not made to depend on taking physical control
(iv) Governmental seizure founded on disgraceful laws
(b) The confiscation of property lying outside the territory of the state
(c) Benevolent seizure
(d) The seizure of intangibles
(i) English third-party debt orders
(ii) Foreign third party debt orders
(iii) The effect of the Rome I Regulation
(f) The acquisition of assets by appointing a receiver to collect them
(a) The definition of a trust in private international law
(i) Express choice of law
(ii) Implied choice of law
(iii) Absence of choice of law by the settlor
(iv) Favouring a law which confirms validity
(v) Alteration in the governing law
(c) The issues to which the lex fiduciae applies
(d) The issues to which the governing law does not apply
(e) Non-express trusts
(ii) Applicable law found by the court in default of choice by the parties
(iii) Capacity
(b) Property rights after marriage without an express matrimonial property contract
(c) The alteration of the law which governs the rights of the parties
(d) The effect of the matrimonial property regime on death or dissolution of marriage
(9) Dissolution of marriage and its effect on property rights
(a) The administration of estates
(b) Jurisdiction in matters of succession
(i) Intestate succession
(ii) Testate succession
(iii) Testamentary capacity
(iv) Formal validity of Will
(v) Material validity of Will
(vi) Interpretation of Will
(vii) Revocation of Will
(d) The effect of matrimonial property regimes on succession
(1) The importance of the lex incorporationis
(2) Creation and recognition of companies, corporations, and other legal persons
(a) Looking through the veil of corporate personality
(b) Looking beyond corporate personality
(i) Domicile jurisdiction under the Civil Jurisdiction and Judgments Act 1982
(ii) Seat jurisdiction under the Civil Jurisdiction and Judgments Act 1982
(iii) (Principal) place of business; central management and control
(iv) Other jurisdiction under the 1982 Act
(b) Jurisdiction and service of process on a company or corporation in England
(c) Jurisdiction over a company or corporation which cannot be served as of right
(d) Foreign judgments against companies
(a) Contractual obligations
(b) Non-contractual obligations
(a) The general principle that the lex incorporationis governs
(i) Company registered in England and Wales
(ii) Company registered in Scotland
(iii) Unregistered companies
(c) Applicable law
(d) Effect of foreign winding up
(7) Amalgamation, succession, and secession of corporations
(8) Other bodies: partnerships of various kinds
(a) Judicial alteration of contracts or shareholdings by schemes of arrangement
(b) Judicial moratorium
(i) The centre of main interests
(ii) The presumption in favour of the registered office
(iii) Tactical relocation of the centre of main interests
(iv) Establishment in the United Kingdom
(v) Interpretation of Article 3 of the retained Regulation after Brexit
(b) Jurisdiction based on the provisions of the Insolvency Act 1986
(i) Insolvency issues
(ii) The reach of certain English statutory provisions
(iii) Application of foreign law
(i) The effect of revoking the Insolvency Regulation
Application of the Model Law.
Right of access of foreign representatives and creditors to proceedings in English courts.
Recognition of a foreign insolvency proceeding.
Effect on English proceedings of recognition of foreign proceedings.
Other forms of co-operation with foreign courts and foreign representatives.
English insolvency proceedings commenced after recognition of a foreign main proceeding.
Asymmetric application.
(iii) Assistance to foreign insolvencies: statutory powers
(iv) Assistance using common law powers
(e) Effect of foreign winding-up order
(1) Personal status and the law of the domicile
(a) Structure of the validity of marriage
(b) Characterization of issues and formulation of the question
(i) The place of celebration
(ii) Issues regarded as matters of form
(iii) Exceptions to the need to satisfy the lex loci
(iv) Impossibility of compliance with local form
(v) Marriage in territories under belligerent occupation
(i) Dual domicile rule
(ii) Law of the intended matrimonial home?
(iii) Issues regarded as matters of capacity
(iv) The role of the law of the place of celebration
(v) The (additional) need for capacity under the lex loci
(vi) Lack of capacity under foreign law; marriages in England
(vii) Lack of capacity; marriages outside England
(i) Consent
(ii) Failure to consummate
(iii) Sham marriage
(iv) Polygamous marriage
(v) Change of gender
(vi) Same sex couples
(vii) Civil partnership
(viii) Public policy
(i) Grounds of jurisdiction
(ii) Ancillary relief
(iii) Non-exercise of jurisdiction
(i) Divorce
(ii) Annulment
(4) Financial provision ancillary to divorce or annulment
(a) Divorces and annulments obtained in the British Islands
(i) Divorce obtained in a single country
(ii) Divorces obtained by proceedings or not by proceedings
(iii) Decree obtained by proceedings: recognition
(iv) Decree obtained by proceedings: refusal of recognition
(v) Divorce or annulment obtained without proceedings: recognition
(vi) Divorce or annulment obtained without proceedings: refusal of recognition
(6) Conflict of laws between marriage and divorce or annulment
(7) Financial provision after overseas divorce or annulment
(a) Maintenance orders from the English court: the principal case
(b) The 2007 Hague Convention
(c) Financial provision and maintenance from the English court
(i) Recognition and enforcement at common law
(ii) Recognition and enforcement under statute
(iii) Recognition and enforcement under the 2007 Hague Convention
(a) Personal capacity
(b) Mental incapacity
(i) Jurisdiction based on the centre of main interests
(ii) Jurisdiction based on presence, residence, or submission
(b) Application of law
(c) Effect of order
(1) The habitual residence of a child
(a) ‘Section 8 orders’
(b) Jurisdiction to make a Section 8 order in respect of a child: statutory framework
(a) Subject matter scope of the 1996 Convention
(b) Jurisdictional provisions of the 1996 Hague Convention
(c) Transfer of jurisdiction to and from another contracting state
(d) Stay of proceedings
(e) Applicable law
(a) Jurisdiction ancillary to matrimonial proceedings
(b) Jurisdiction based on habitual residence or presence of the child
(5) Jurisdiction to make orders other than Section 8 orders in respect of a child
(a) Foreign orders taking effect under the 1996 Hague Convention
(b) Foreign orders taking effect under the common law rules
(a) The 1980 Hague Abduction Convention
(b) Abduction or retention involving non-contracting states
(8) Maintenance and child support: the 2007 Hague Convention
(9) The relevance of the Brussels II Regulation and the Maintenance Regulation
(a) English adoptions
(b) Foreign adoptions
(c) Declarations of parentage
(d) Surrogacy
(1) The general structure of the Arbitration Act 1996
(i) Arbitration agreement concluded as term of substantive contract
(ii) Freestanding agreement to arbitrate
(i) Dispute as to scope of agreement only
(ii) Scope in relation to insolvency
(iii) Dispute as to validity of (entire) contract
(iv) Dispute as to status as party to the agreement
(c) Formal validity
(a) Arbitration Act 1996, Section 9
(b) Claimant denying that he agreed to arbitrate
(a) Relevance or irrelevance of the seat of the arbitration
(b) Injunction to order the party in breach to exercise self-restraint
(c) Damages for breach of the arbitration agreement
(d) Non-recognition of foreign judgments
(5) The law applied by the tribunal to determine the substance of the dispute
(6) The arbitral proceedings and the auxiliary participation of English courts
(7) Enforcing arbitral awards in England: general
(a) Recognition and enforcement according to the New York Convention
(i) Defences which are deduced from analysis of the contractual agreement
(ii) Defences which are not deduced from analysis of contractual agreement
(a) Foreign judgment giving effect to arbitral award
(b) Judgment of court of the seat setting aside an award
(c) Foreign judgments on other issues arising in the course of arbitration
(d) Foreign judgment contradicting the arbitration
(10) International commercial mediation
[66.249.64.20|81.177.182.136]
81.177.182.136

Private International Law: IALS Library Guides

Guide last updated Hester Swift, August 2022

About the author HS

This guide was created by Hester Swift, Foreign & International Law Librarian at the IALS Library.

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Useful links

We also recommend the following online research guides for foreign jurisdictions.

GlobaLex A large collection of legal research guides covering foreign and international law, published by the Hauser Global Law School Program at the New York University School of Law.

Introduction

Private international law consists of principles and rules for dealing with legal disputes that have a foreign element: for example, a cross-border divorce case, or transnational commercial dispute. In England and Wales, the terms 'private international law' and 'conflict of laws' are interchangeable, and the subject encompasses choice of law, the court's jurisdiction and the recognition and enforcement of foreign judgments. The scope of private international law varies from country to country, however, and each jurisdiction has its own rules.

In addition to the rules by made national authorities, treaties, model laws and other instruments have been brought in by international organisations to regulate the area of transnational disputes. These organisations include t he Hague Conference on Private International Law, the International Institute for the Unification of Private Law (UNIDROIT) and the European Union.

IALS Library's private international law section is at classmark SH. It includes books, law reports, journals and other publications; most of this material has the subject heading 'Conflict of Laws' on the Catalogue . Such is the broad scope of the subject, however, that useful material for private international law research will be found throughout the library. E-books, e-journals and other online resources are also available, via links on the Catalogue .

Legislation

National legislation

Private international law rules for a particular jurisdiction may be set out in a few individual laws or acts, or, in a civil law jurisdiction, may be part of the civil code and/or other codes. A collection of foreign private international law provisions was published by Elgar in 2017: the Encyclopedia of Private International Law, (available at IALS in hard copy and online), which includes translations of laws from 79 different jurisdictions. A few translated laws are also found in Verschraegen's Private International Law , part of Kluwer's International Encyclopaedia of Laws ; this work also gives citations to laws of a large number of jurisdictions; the print edition is held at IALS, but we do not subscribe to the online version. IALS Library. The following sources also give citations to relevant laws of a range of jurisdictions:

Foreign Law Guide: Current Sources of Codes and Basic Legislation in Jurisdictions of the World (FLG): subscription database published by Brill (see IALS Law Databases page ): gives citations to the legislation for each jurisdiction, references to translated versions (if any) and links to online sources. Private international law comes under ' Conflict of Laws & Private International Law' and 'Domestic & Foreign Judgments'' .
The European e-Justice Portal has outlines of the national private international law rules in EU member states.

For further information about tracking down foreign legislation, in hard copy and online, see the IALS and Globalex research guides:-

IALS Library's foreign law research guides cover more than thirty jurisdictions, from Argentina to Zambia. Based on our collections, they give details of print and online sources of legislation, including translations (if any).
The Globalex foreign law research guides , provided by New York University's Hauser Global Law School Program, cover most of the world's jurisdictions and give links to online sources; Globalex also has a Basic Guide to Researching Foreign Law .

Codified laws, such as the French Code Civil ,can be looked up on the Catalogue by title. Other foreign legislation can be looked up by the jurisdictional classmark , adding '.E' for legislation: for example, Norwegian classmarks start with 'GO31', so a classmark search for GO31.E will find Norwegian legislation.

European Union legislation EU legislation plays an important role in the private international law of EU member states. The relevant EU legislation is available via the European Commission's Civil Justice webpages and additional information can be found in the European e-Justice portal .

For general information about sources of EU legislation, see IALS Library's EU research guide .

Treaties and model laws

Several international organizations are specifically concerned with developing multilateral private international law treaties, model laws and other instruments seeking to harmonise the private law of different jurisdictions. There are also bilateral treaties on private international law matters.

The Hague Conference on Private International Law Since the beginning of the twentieth century, the Hague Conference on Private International Law has drawn up multilateral conventions covering family law, commercial law, civil procedure and other areas. In 2015, it also adopted the non-binding Principles on Choice of Law in International Commercial Contracts.

The current Hague conventions and their protocols, as well as the Principles on Choice of Law , are on the Hague Conference website , in English and French, with status information. The official print source is the one-volume Recueil d'instruments / Collection of Instruments (previously Collection of Convention s / Recueil des Conventions ), published by the Hague Conference and now in its 9th edition; IALS Library has the current and previous editions at classmarks SH5.J.18 and RES SH5.J.18. The Principles on Choice of Law in International Commercial Contracts were also published in the Uniform Law Review, at (2015) 20 Unif. L. Rev. 362 ( held at IALS).

The pre-1945 Hague conventions are on the Hague Conference website under ' The "old" conventions ', in French. T hey are also in the Consolidated Treaty Series (in French) and British and Foreign State Papers (again in French), both of which are held at IALS; the FLARE Index to Treaties gives citations.

The depositary for the Hague Conventions is the Dutch Ministry of Foreign Affairs; th e government information portal, Overheid.nl , has status information and depositary notifications, together with the certified true copy of each convention (all in English and French).

The proceedings of the Hague Conferences consist of minutes, proposals, memoranda, draft conventions, working documents, explanatory reports for the conventions and other documents. They are published under the title Proceedings of the...session / Actes et documents de la...session. They are held at IALS up to the 20th session, and all volumes are available on the Hague Conference website .

International Institute for the Unification of Private Law (UNIDROIT)

UNIDROIT is an intergovernmental organisation that seeks to modernise and harmonise private law, particularly commercial law. Its principal institutions are the General Assembly and the Governing Council. It carries out its work by means of multilateral conventions (treaties), model laws, principles and guides. IALS Library holds many UNIDROIT publications and official documents. Most UNIDROIT official documents are also on the UNIDROIT website.

UNIDROIT conventions, principles and model laws are on the website under 'Instruments', with status information for the conventions; they also appear in the series Unification of Law and Uniform Law Review.
UNIDROIT's Proceedings and Papers / Actes et documents series publishes records of the meetings of the General Assembly, Governing Council and other bodies. It is held at IALS from 1928 to 2010 (1928-1970 on microfilm, 1971-2009 in hard copy, 1997-2010 on CD-ROM); the series is also archived online here , 1994 to 2011; later documents are on the Meetings pages of the current UNIDROIT website, 2005 onwards
Travaux préparatoires for several of the UNIDROIT conventions have been published as Acts and Proceedings , or Records and Documents , for example: Diplomatic conference to adopt a mobile equipment convention and an aircraft protocol: acts and proceedings (Rome, UNIDROIT, 2006). Many of these titles are held at IALS; for others, try WorldCat , or contact UNIDROIT Library . Travaux préparatoires for most of the conventions (et cetera) are on the UNIDROIT website : find instrument, then click on ‘Preparatory work’ or ‘Diplomatic conference’ (some documents are listed without links to the text, but Google may find them on the website: for example,. https://www.unidroit.org/english/documents/1949/study23/s-23-17-e.pdf ). Some old travaux préparatoires were published individually, for example, Avant-projet de convention internationale concernant le transport de marchandises par route (U.D.P. 1949. Etudes: XXIII. 6);. They are listed in the Bibliography section of Unification of Law (a few of these documents are held at IALS; more are held by UNIDROIT Library .
Guides and principles are on the UNIDROIT website under 'Instruments'; they are also published as print monographs (many of which are held at IALS) and in Uniform Law Review (also held at IALS).
Commentaries have been published on many of the UNIDROIT instruments, several of which are held at IALS, for example Stefan Vogenauer (ed.), Commentary on the UNIDROIT principles of international commercial contracts (PICC) (OUP, 2015).
Cases concerning UNIDROIT instruments appear in Uniform Law Cases and its successor, Uniform Law Review ( both available online and in hard copy at IALS - see Catalogue ); see also UNILEX , a free database of cases and bibliographic references concerning the UNIDROIT Principles of International Commercial Contracts (and the UN Convention on Contracts for the International Sale of Goods).

Organization for the Harmonisation of Business Law in Africa (OHADA) OHADA was established in 1993 by the Treaty on the Harmonisation of Business Law in Africa ('OHADA Treaty'). A l argely francophone organization, it produces model laws for its member states, such as the Uniform Act relating to General Commercial Law and the Uniform Act on Arbitration. IALS Library has a few OHADA official publications and many more are found on the Organization's website:

OHADA Treaty: originally published in OHADA's Journal Officiel, issue 4, 1 November 1997, in French; available on OHADA.org (the main website); and OHADA.com (a site provided by the Paris-based Associat ion pour l’unification du Droit en Afrique, or 'UNIDA'). An official English translation of the original treaty and amending treaty appeared in a special issue of the Journal Officiel on 24 November 2016.
OHADA uniform acts are published in the Journal Officiel , available on OHADA.org (in French); English translations of the appeared in the November 2016 special issue and are also on Westlaw International Materials , under 'International Arbitration Materials'. The Uniform Law Review briefly notes the adoption of several OHADA uniform acts, under 'Recently adopted international instruments', and publishes commentary on OHADA instruments.
Draft OHADA uniform acts: information about these is found on OHADA.org . The Preliminary Draft OHADA Uniform Act on Contract Law, its Explanatory Notes, background information and commentary can be found on the UNIDROIT website and also appeared in (2008) 13 Unif.L.Rev. 593.

The uniform laws, the Trea ty and other official texts are available in several printed compilations, including the following:

OHADA Treaty Acts (ACEDA, 2003), held at IALS; the OHADA Treaty, court rules and uniform acts.
Répertoire quinquennal OHADA, compiled by Joseph Issa-Sayegh, published by UNIDA; covers the period from 2000 onwards; not held at IALS.

Organization of American States (OAS) Since 1975, the Organization of American States has carried out harmonization work by means of its Inter-American Specialized Conferences on Private International Law, referred to by the Spanish acronym 'CIDIP'. CIDIP conventions, model laws and other instruments are available on the OAS website , with status information for the conventions.

The conventions can also be found in the OAS Treaty series ( S erie sobre tratados; in IALS 1970-1985) and the United Nations Treaty Series . The Conventions from the first two CIDIP conferences are also in The Inter-American system: treaties, conventions and other documents , compiled by the OAS Secretariat for Legal Affairs (Oceana, 1983), which is held at IALS.

Many CIDIP instruments, including the Model Inter-American Law on Secured Transactions , have been reproduced in International Legal Materials (print and online - see IALS Library Catalogue ).

For further information about OAS documentation, see Pennsylvania University's research guide .

United Nations Commission on International Trade Law (UNCITRAL) UNCTRAL, the principal UN body dealing with the law of international trade, seeks to modernise and harmonise international commercial law.

UNCITRAL conventions and model laws are published in its Yearbook: see UNCITRAL website and HeinOnline (or the hard copy, h eld at IALS up to vol. 34, 2003 ).

The conventions and model laws are also on the Texts and Status page of the UNCITRAL website, together with travaux préparatoires, bibliographies and other information.

UNCITRAL publishes monograph versions of the model laws and other texts, several of which are held at IALS (see Library Catalogue ).

There are many specialist sources for private international law case research, as detailed below.

Case books Leading private international law cases are reproduced in cases and materials books, for example:

Bariatti, S., Cases and materials on EU private international law (Hart, 2011)
Hartley, T., International commercial litigation: text, cases and materials on private international law , 3rd ed. (Cambridge University Press, 2020)
Symeonides, S., et al, Conflict of laws: American, comparative, international: cases and materials, 4th ed. (West Academic, 2019).

Law reports and case databases

CLOUT : free database of cases concerning UNCITRAL instruments.
UNILEX : free database of cases concerning the UNIDROIT Principles of International Commercial Contracts and the UN Convention on Contracts for the International Sale of Goods (CISG).
Uniform Law Review: this journal includes summaries of cases relating to uniform law instruments; see also its partial predecessor, Uniform Law Cases (1959-1971). IALS has both titles in print and online - see Library Catalogue .
Die deutsche Rechtsprechung auf dem Gebiete des internationalen Privatrechts (de Gruyter, 1928 - ; in IALS): long-running series publishing German private international law cases.
International Litigation Procedure (Sweet and Maxwell, 1990 - ): judgments of national courts and the European Court of Justice concerning procedural issues relating to transnational litigation; whole series in Westlaw UK's Cases collection; hard copy held at IALS to 2004 .

Cases relevant to private international law research also appear in ordinary law reports and databases, which are listed on IALS Library Catalogue and the Law Databases page . The free WorldLI I website covers cases many different jurisdictions, some more extensively than others.

Finding tools If you do not have a citation, use a research guide to help you find the cases you need; uides for most jurisdictions are available online:

IALS Library's research guides cover the law of more than thirty different national jurisdictions, as well as the European Union.
The Globalex website (New York University) has research guides for more than 180 jurisdictions, plus Mary Rumsey's Basic Guide to Researching Foreign Law .
See also IALS Library's guide, Finding Cases .

IALS holds printed research manuals for some jurisdictions. To find them on the Catalogue , try a keyword search for the phrase "legal research" plus the name of the jurisdiction in which you are interested, for example: "legal research" mexico .

Encyclopaedias

Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio (ed.s), Encyclopedia of Private International Law (Edward Elgar, 2017): at IALS in hard copy and online; volumes 1 and 2 cover about 250 private international law topics, A to Z; volume 3 outlines the private international law of 80 different jurisdictions; volume 4 provides English-language versions of laws from 79 different jurisdictions, together with translations of treaties made by the Commonwealth of Independent States (the 'Kiev Treaty Concerning the Modalities of the Settlement of Disputes Related to the Exercise of Commercial Activity,1992, and the 'Minsk Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Matters', 1993).
Bea Verschraegen (ed.), Private International Law ( Kluwer Law International, 2001 - ), summarises the private international law of more than twenty different jurisdictions, in five looseleaf volumes. Part of the In ter national E ncyclopaedia of L aws , i t aims eventually to cover sixty jurisdictions.; for a few countries, translations of selected laws are included, and some chapters have bibliographies. The looseleaf edition is held at IALS (there is an online version , but IALS does not subscribe). Kluwer also publishes single-jurisdiction monographs based on this Encyclopaedia; IALS Library holds many of these titles, for example, Private International Law in Nigeria, Private International Law in Sweden.

IALS Library has many hundreds of books and e-books on private international law, covering a wide range of jurisdictions. Books wholly or mainly about this topic can be found on the Catalogue with a Subject search for " Conflict of laws ", but other searches will also find relevant works. Most of the printed books are on the 3rd floor, at classmark 'SH'.

Established works on English and US private international law include the following (see Catalogue for other jurisdictions):-

Adrian Briggs, Lawrence Collins, et al, Dicey, Morris and Collins on the Conflict of Laws, Lawrence Collins (ed.), 15th ed., Sweet & Maxwell, 2012 - ; print and online available at IALS (see Catalogue ); written from an English perspective; 16th edition due September 2022.

Paul Torremans (ed.), Cheshire, North & Fawcett: Private International Law. 15th ed. Oxford University Press, 2017; w ritten from an English perspective; print and online available at IALS (see Catalogue ).

Restatement of the Law, Second: Conflict of Laws . American Law Institute Publishers, 1971- (seven volumes, with updating supplements; also on Westlaw International Materials and Lexis®Library (see IALS Law Databases page ).

Peter Hay, Patrick J. Borchers and Symeon C. Symeonides, Conflict of Laws , 6th ed., West, 2018.

IALS Library has numerous journals focusing on private international law, including the following:

American Journal of Comparative Law, American Society of Comparative Law / Oxford University Press, 1952 - . Available in printed format and online (see Catalogue ).

International and Comparative Law Quarterly , British Institute of International and Comparative Law / Cambridge University Press, 1952 - . Print and online (see Catalogue ) .
Journal of Private International Law, Hart Publishing, 2005 - . Print and online (see Catalogue ) .
Rabels Zeitschrift für ausländisches und internationales Privatrecht (formerly Zeitschrift für ausländisches und internationales Privatrecht ), de Gruyter / Mohr Siebeck, 1927 - . Print and online (see Catalogue ) .
Revue critique de droit international privé, Sirey / Dalloz, 1947 - . Print and online (see Catalogue ) .
Uniform Law Review / Revue de droit uniforme . International Institute for the Unification of Private Law / Oxford University Press, 1973 - . Formed by the amalgamation of Unification of Law and Uniform Law Cases . IALS has all three titles, print and online (see Catalogue ) .
Yearbook of Private International Law, Otto Schmidt Verlag, 1999 - . Published in association with the Swiss Institute of Comparative Law.

IALS subscribes to many databases relevant to private international law research: see Law Databases page . A selection of these resources is listed below.

Foreign Law Guide: Current Sources of Codes and Basic Legislation in Jurisdictions of the World (published by Brill): an online directory of the laws of almost every country; for each jurisdiction, private international law comes under the heading 'Conflict of Laws'; c itations to legislation, links to internet sources and details of available translations are given (does not include the text of the legislation itself).
HeinOnline : modules of interest to private international law researchers include the United Nations Law Collection for treaties; and, for commentary, the Law Journal Library, the Foreign and International Law Resources Database and Index to Foreign Legal Periodicals.
Index to Legal Periodicals : index covering journals published in the US, for the most part.
Westlaw UK, Journals section: combined index and full-text database covering about 800 different journals, mainly published in the UK.

See also foreign law databases such as Beck-Online (Germany) and Lexis 360 (France), as well as the UK, EU, foreign and international materials on Lexis®Library and Westlaw International Materials .

The following are a selection of free web resources relevant to private international law research:

Conflict of Laws.net : blog and discussion forum with contributors from around the world; the editorial board is made up of scholars and practitioners.
CLOUT : free database of case law concerning UNCITRAL instruments.
European e-justice portal: an EU site providing information about civil procedure, mediation, succession, wills, victims of crime, defendants in criminal proceedings and related matters. Covers the national provisions of each member state and gives details of EU law and policy.
Hague Conference on Private International Law : includes the organisation's conventions, explanatory reports and other documentation.
OHADA.com : portal provided by UNIDA, the Association pour l'Unification du Droit en Afrique; includes the OHADA Treaty, news about OHADA's work, background information and more; some content is for members only.
OHADA.org : OHADA's own website, providing the OHADA Journal Officiel, the OHADA Treaty, uniform acts, cases, news and background information. (Seems to work best with Internet Explorer).
Organization of American States - Private International Law: covers the work of the Inter-American Specialized Conferences on Private International Law (CIDIP); includes the text of OAS conventions and other instruments.
UNCITRAL (UN Commission on International Trade Law): UNCITRAL conventions, model laws and working documents.
UNIDROIT ( International Institute for the Unification of Private Law): UNIDROIT conventions, model laws, proceedings and other documentation.
UNILEX : free database of case law concerning the UNIDROIT Principles of International Commercial Contracts and the UN Convention on Contracts for the International Sale of Goods (CISG). Provided by UNIDROIT.
UN Treaty Collection : free website containing the entire UN Treaty Series and League of Nations Treaty Series.

For other web resources, search the Eagle-i gateway for "private international law".

Research guides

ASIL Electronic Resource Guide : Private International Law , by Don Ford.

A Guide on the Harmonization of International Commercial Law , by Duncan Alford and Matthew Novak ( on New York University's Globalex website).

Bibliographies

Symeon Symeonides publishes an annual private international law bibliography in the American Journal of Comparative Law . IALS holds this journal and it is also available online, via the Library Catalogue .

A selective bibliography concerning the Hague Conference is available on the organisation's website

Bibliographies are included in the Uniform Law Review ( see IALS Library Catalogue ), UNCITRAL's Yearbook and UNIDROIT's UNILEX database.

See also: Szladits, Charles, A Bibliography on Foreign and Comparative Law: Books and Articles in English . Oceana, 1955-1989 (in IALS 1955-1983).

Last Updated: Jan 11, 2024 5:21 PM
URL: https://libguides.ials.sas.ac.uk/privateinternationallaw

Introduction to Korean Law pp 271–309 Cite as

Private International Law

Hongsik Chung 2
First Online: 01 January 2012

1198 Accesses

Private international law (or conflict of laws) is a set of rules of law that determine which court has jurisdiction and which law governs a given legal dispute. It also determines whether, and if so under what conditions, a judgment rendered by a foreign court will be recognized and enforced domestically. Private international law typically applies when a legal dispute has an international element.

Hague Convention
Habitual Residence
Consumer Contract
Mandatory Rule
Unjust Enrichment

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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The Law Amending the Conflict of Laws Act became effective as of July 1, 2001 and is still a current version. For a detail procedural history and background of amending the Conflict of Laws Act, see Ministry of Justice ( 2003 ), pp. 3–8.

Law No. 6465 of April 7, 2001. Note that the terms, conflict of laws and private international law will be used interchangeably in this article.

The international jurisdiction was not even dealt with from the old law.

The effort to finalize the 1999 Draft Convention failed and instead resulted in adoption of the Convention on Choice of Court Agreements in 2005. Although not yet in force, it will probably be widely ratified. All the world’s major economic powers took part in: the United States, the European Community, China, Japan, Russia, Canada, Australia, Brazil and many others (Hartley 2009 , p. 201). However, Korea did not take part in the adoption of the Convention. It is known that the Convention was inspired by the Brussels I Regulation and follows its general provisions.

The titles of all chapters and articles in the Act are obtained from Suk ( 2003b ), pp. 315–336, in which a full translation of the Act is separately contributed by Professor K. H. SUK, who is the most distinguished professor of law in the field of private international law in Korea.

For a general and comprehensive analysis of international jurisdiction in Korean language, see K. H. Suk,「국제사법 해설」 p. 32 et seq.

Act No. 9171, December 26, 2008.

K. H. SUK,「국제사법 해설」 pp. 43–44.

Decision of 2007. 8. 30, 2006가합53066 (Seoul Central District Court).

Jori means ‘nature of the thing.’

Decision of 1992. 7. 28, 91다41897 (the Supreme Court of Korea) and Decision of 1995. 11. 21, 93다39607 (the Supreme Court of Korea).

K. H. SUK,「국제사법 해설」 pp. 40–41.

This is also the same principle that can be found from Article 1 of the Korea Civil Procedure Act (“KCPA”).

Decision of 2005. 01. 27, 2002다59788 (the Supreme Court of Korea).

These provisions can be found from the KCPA, Articles 2 through Article 40.

Kwon ( 2007 ), p. 125.

As for the concept of domicile and its different meaning from habitual residence, refer to Chapter IV, A. General Provisions, 2. habitual residence as a new connecting factor.

KCPA, Art. 2.

KCPA, Art. 3.

KCPA, Art. 7.

KCPA, Art. 8.

KCPA, Art. 11.

KCPA, Art. 18.

KCPA, Art. 21.

Ministry of Justice ( 2003 ) p. 25.

The Act, Art. 27(4).

Ministry of Justice ( 2003 ) pp. 100–101; K. H. SUK, 「국제사법 해설」, p. 239.

The Act, Art. 27(5).

Ministry of Justice ( 2003 ) p. 101; K. H. SUK, 「국제사법 해설」, p. 240.

The Act, Art. 27(6).

The Act, Art. 28(3).

This is the meaning of the words, “is or was situated.” Trevor, p. 68.

The Act, Art. 28(4).

Act No. 9525, March 29, 2009.

These arbitral awards are governed by Articles 26 and 27 of the KCEA only if they are not subject to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). Since Korea is a contracting state to the New York Convention, recognition and enforcement of most foreign arbitral awards will be regulated by the New York Convention.

Suk ( 2002 ), pp. 345–346.

Lee ( 2006 ), p. 115–116.

K. H. SUK, 「국제사법과 국제소송 I」, p. 265.

KCPA, Art. 217(1).

K. H. SUK, 「국제사법과 국제소송 I」 p. 296; Lee ( 2006 ), p. 117.

KCPA, Art. 217(2).

Kwon,“Litigating in Korea” p. 141.

Cf. Committee on Foreign and Comparative Law, Association of Bar, City of N.Y., Survey on Foreign Recognition of U.S. Money Judgments (July 2001) (reciting from L. S. Hoon, p. 126).

Lee ( 2006 ), p. 133. (Decision of Oct. 28, 2004, 2002다74213 (the Supreme Court of Korea).

KCEA, Art. 26(1).

KCEA, Art. 26(2).

KCEA, Art. 27(1).

K. H. SUK, 「국제사법 국제소송 I」 p.348.

KCEA, Art. 27(2).

This is when the applicable law is a foreign law, and it is difficult to ascertain the foreign law.

This question regards the problem of renvoi.

This question is a matter of public policy.

Of course, the jurisdictional matters in Articles 2, 27 and 28 of the Act are not subject to the General Provisions here.

The Act, Art. 3(1).

The Act, Art. 3(2).

Ministry of Justice ( 2003 ) p. 29.

The Act, Art. 4.

K. H. SUK,「국제사법 해설」p. 81.

Scoles et al. ( 2004 ), §4.14.

K. H. SUK,「국제사법 해설」p. 85–86.

Decision of 2008. 1. 31, 2004다26454 (the Supreme Court of Korea); Decision of 2010. 3. 25, 2008다88375 (the Supreme Court of Korea).

Act No. 9374, January 30, 2009.

Act No. 9630, April 22, 2009.

K. H. SUK,「국제사법 해설」p. 90.

Article 7 of the Act modeled after Article 18 of Swiss PIL Act (this Code does not prevent the application of those mandatory provisions of Swiss law which, by reason of their particular purpose, are applicable regardless of the law designated by this Code), and Article 7(2) of the Rome Convention. (“Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract.”)

This type of law is also referred to ‘overriding mandatory provisions’ under Article 9(1) of the Rome Regulation I (Regulation 593/2008), which are “provisions, the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation”. The Rome Regulation I was negotiated during 2007, and formally adopted on 17 June 2008. It came into force August of 2008 and applies to contracts concluded after 17 December 2009. Contracts concluded prior to that date will still be governed by the Convention. (Hartley, p. 571).

Lex causae refers to the law that would be applicable in the absence of choice of law by the parties. (Scoles, §18.4 p. 957).

Act No. 9554, March 25, 2009.

Suk ( 2003b ) p. 110. (Although it is not expressly mentioned, Article 6 of the Act deals with international mandatory rules pertaining to lex causae . Under Article 6, one may argue that international mandatory rules of lex causae should apply as part of lex causae .)

K. H. SUK, 「국제사법 해설」 pp. 102–104.

Renvoi means in French ‘sending back’.

Article 51(1) of the Act provides that the capacity of a person who assumes obligations under a bill of exchange, promissory note or check shall be governed by lex patriae of such person. If lex patriae provides that such capacity shall be governed by the law of another country, the law of that country shall apply.

For further in depth analysis thereof, refer to K. H. SUK, 「국제사법 해설」, pp. 113–115.

The Act, Art. 25(1).

Decision of 1997. 9. 9, 96다20093 (the Supreme Court of Korea).

Trevor, p. 567.

UNIDROIT stands for “International Institute for the Unification of Private Law.”

Trevor, pp. 573–574.

This means that it is a purely domestic contract.

This rule is derived from Article 3(3) of the Rome Convention. Article 3(3) of the Rome Convention was apparently the result of a compromise. Some delegations wanted the Convention to provide that the parties could not make a valid choice of law in the case of a purely domestic contract; the delegates, notably that of the United Kingdom, were opposed to this limitation on the parties’ freedom of choice. The compromise was to allow a free choice, but not to exclude the ordinary mandatory rules from the operation of the choice of law. (Trevor, p. 601).

Suk ( 2003b ), p. 123.

Philip ( 1982 ) at p. 95 ( recitation from Trevor, p. 601).

Trevor, p. 581.

The Act, Art. 26(2).

This place of business refers to the place of the branch office.

Although the Act does not specifically mention, it should be consistently interpreted with the Rome Convention, Article 4, paragraph 5.

The contents of this sentence are similar to the Rome Convention, Article 4, paragraph 5; however, this paragraph was not adopted in the Act because the general exception clause under Article 8 of the Act applies. From the author’s perspective, it would be better to specifically include this rule in Article 26, not only because the parties may miss the general exception clause under Article 8, but because this rule may be able to clarify the presumption which is always rebuttable if possible.

Trevor, pp. 581–582.

The Rome Convention, Article 4, paragraph 3.

These mandatory rules cannot be derogated from by agreement, and should be distinguished from the international mandatory rules under Article 7 of the Act. (Ministry of Justice ( 2003 ), p. 99–100).

Suk ( 2003b ), p. 125.

Contracts relating to the provision of ordinary goods and services intended for the personal or family use of the consumer and which are not associated with the professional or commercial activities of the consumer shall be governed by the law of the state in which the consumer habitually resides:(a) If the supplier received the order in that state; (b) If the conclusion of the contract was preceded in that state by an offer or an advertisement and the consumer performed there the necessary acts to conclude the contract; or (c) If the consumer was induced by the supplier to go abroad to place his/her order there.

The Act, Art. 28(2).

Like Article 27, these mandatory rules cannot be derogated from by agreement, and should be distinguished from the international mandatory rules under Article 7 of the Act. (Ministry of Justice ( 2003 ), pp. 104–5).

Decision of 1983. 3. 22, 82다카1533 (the Supreme Court of Korea); Decision of 1985. 5.28, 84다카966 (the Supreme Court of Korea).

Decision of 2002. 5. 23, 99가합84123 (Seoul District Court); Decision of 2006. 1. 26. 2002나32662 (Seoul High Court).

K. H. SUK,「국제사법 해설」pp. 286–287.

K. H. SUK,「국제사법 해설」p. 291.

Note that it is not the parties’ nationality here.

Suk ( 2003b ), p. 128.

The Act, Art. 33.

The Act, Art. 19(1).

The Act, Art. 19(2).

Ministry of Justice ( 2003 ), p. 81; K. H. SUK,「국제사법 해설」p. 179.

Suk ( 2003b ), p. 119.

Suk ( 2003b ), p. 120.

Determining the governing law raises a difficult issue if the two places of relevant intermediary are different, i.e., the place where the rights of the security interest provider are registered and the place where the rights of the security interest holder are registered (Reciting from Suk ( 2003b ) p. 120).

Suk ( 2003b ) p. 121.

Trevor, pp. 288–289.

The Act, Art. 24.

Ministry of Justice ( 2003 ), pp. 86-7; K. H. SUK,「국제사법 해설」p. 191.

Ministry of Justice ( 2003 ), p. 87; K. H. SUK,「국제사법 해설」p. 194.

The Act, Art. 34(1), first sentence.

K. H. SUK,「국제사법 해설」p. 303.

The Act, Art. 34(1), second sentence.

The Act, Art. 35(1), first sentence.

The Act, Art. 35(1), second sentence.

The Act, Art. 35(2).

Suk ( 2003b ) p. 130.

The Act, Art. 36(1).

The Act, Art. 36(2).

The Act, Art. 37.

Ministry of Justice ( 2003 ), p. 133; K. H. SUK,「국제사법 해설」p. 318.

The Act, Art. 38(1).

The Act, Art. 38(2).

Ministry of Justice ( 2003 ), p. 137; K. H. SUK, 「국제사법 해설」p. 324.

The Act, Art. 39.

The Act, Art. 41(1).

Suk ( 2003b ) p. 134.

The Act, Art. 46(1).

For more details on the Convention, see Scoles ( 1994 ).

The Act, Art. 50(2).

The country of the ship’s registration should be distinguished from the countries of, the flag or the home port, of a ship.

The Act, Art. 60

Hartley TC (2009) International Commercial Litigation – text, cases and materials on Private International Law. New York, USA: Cambridge University Press

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Chung, H. (2013). Private International Law. In: Introduction to Korean Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31689-0_9

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Private International Law module (LW31024)

Learn about how international disputes in civil, commercial, or family matters are solved

When a private law dispute, whether a contract or child custody dispute, has an international element where should the proceedings be litigated? What law should be applied to the issues requiring resolution? When should an overseas judgment be recognised?

In Private International Law you will discover the rules that govern:

jurisdiction
choice of law
and the recognition and enforcement of foreign judgments

So, when a contract between a British company and a French company breaks down and legal proceedings are to be brought, in which country should the case be heard?

If the case is heard in the High Court in London what law should be applied to the substantive elements of the dispute: English law, French law, or some other law? If the case is heard in France in which circumstances should the resultant judgment be recognised in the UK?

Consideration will also be given to family law disputes. So, for example: when an Australian – Scottish couple living in Hong Kong separate which court should adjudicate on what happens to their children? What should happen if the mother unilaterally takes the children to Edinburgh?

What you will learn

In this module, you will:

learn about core aspects of private international law, including jurisdiction, applicable law, and the recognition and enforcement of judgments

By the end of this module, you will be able to:

research new areas of law effectively
apply rules contained in complex international and domestic instruments

Assignments / assessment

essay (40%)
3-hour open book online exam (60%)

Teaching methods / timetable

independent study

This module will be delivered by student-led seminars, based on prior reading, allowing a high level of engagement.

You will also need to complete a reading in preparation for each seminar.

Seminars are directed by lecturers but the content is generated by student discussion.

This module is available at Levels 3 and 4. You are only able to take one version of this module. Your adviser of studies will help you choose.

This module is available on following courses:

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Private International Law: A Case Study

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In deciding cases of private international law or conflict of laws, as it is widely known, judges of the Supreme Court in India generally consult the works of renowned English jurists like Dicey and Cheshire. This volume argues that our country should have its own system of resolving inter-territorial issues with cross-border implications. The author critically analyses cases covering areas such as the law of obligations, the law of persons, the law of property, foreign judgments, and foreign arbitral awards. The author provides his perspectives on the application of law in each case. The idea is to find out where the judges went wrong in deciding cases of private international law, so that corrective measures can be taken in future to resolve disputes involving complex, extra-territorial issues.

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Private International Law

Sucharita Manjunath, UPES Dehradun

Editor’s Note: Private International Law is the legal framework composed of conventions, protocols, model laws, legal guides, uniform documents, case law, practice, and custom, as well as other documents and instruments, which regulate relationships between individuals in an international context.

Introduction

Private International Law is a merger of two concepts: that of Private Law and of International Law. Private law is the law that is voluntarily invoked by individuals or States acting in the capacity of an individual by entering into any sort of legal relationship. [i] International law is the law arising between different national (or municipal) systems of law. [ii]

In the words of Cheshire: “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.” [iii]

The reason behind Private International Law is the existence in the world of a number of separate municipal systems of law. [iv] National legal systems reflect differences in history, tradition, and socio-cultural values. The United States has a common law system characterized by a strong emphasis on judicial decisions as an independent source of law. Canada combines this common law system with civil law Quebec and considers it bi-jural.

Civil law systems trace their origins to Roman law and traditionally rely on comprehensive codes for ordering their legal materials. [v] The legal systems of the world consist of a variety of territorial systems, that is their own municipal system, each dealing with the same phenomena of life-birth, death, marriage, divorce, bankruptcy, contracts, wills and so on-but in most cases dealing with them differently. The moment that a case is seen to be affected by a foreign element, the court must look beyond its own internal law. [vi]

Foreign element may be foreign law or facts, that is, factual circumstances, factual content, factual ingredients of a legal cause of action, fact patterns which in one or more ways are linked to a foreign legal system or a foreign country. It just means contact with a foreign system. [vii]

When it is said that cases having foreign elements are to be determined by reference to relevant foreign law, the question is what is meant by ‘foreign law’. When a case is decided by a court with reference to a system of law which is different from a system of law which the court will apply to a purely domestic case, such law is called foreign law. [viii]

Private International Law suffers from a curious juxtaposition. In spite of the term ‘international’ being part of its nomenclature, the only international aspect is the foreign element. Private International Law, though has an international aspect, is essentially a branch of municipal law. This is why every country has its own private international law. However, Private International Law through a branch of municipal law, does not deal with any one branch of law, but is concerned practically with every branch of law and thus has a very wide ambit. [ix]

The function of Private International Law is complete when it has chosen the appropriate system of law. Its rules do not furnish a direct solution to the dispute, and it has been said by a French writer that this department of law resembles the enquiry office at a Railway Station where a passenger may learn the platform where a train starts. [x] Private International Law, by its very nature, merely indicates the governing law under which a case is to be decided [xi] . The role of Private International Law is to determine the following:

Codification of Private International Law in India [xii] .

Statutory provisions of Private International Law in India are very rare. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. In addition, some rules have also been evolved by judicial decisions. [xiii]

Unification of Private International Law.

Need for the unification of Private International Law arises primarily because of two reasons. The internal laws of different countries differ from each other and the Private International Law rules adopted by different countries also differ from each other. Therefore unification of laws also takes place in two steps:

Unification of the rules of Private International Law. [xiv]

a. The first step in the direction of the unification of internal laws was taken by the Bern Convention of 1886 under which an international union for the protection of the rights of authors over their literary and artistic works was formed. After the First World War, an International Institute for the Unification of Private Law was established at Rome. [xv]

The Warsaw Conventions of 1929 which has been amended by the Hague Convention of 1955 is a very important landmark in that direction. This Convention provides for uniform rules relating to the carriage of goods and persons by air.

In the Brussels Convention of 1922-23, the unification of rules relating to the carriage to goods and persons by sea came into existence. Then came in the Geneva Convention on International Carriage of Goods by Road of 1956. The Geneva Conference of 1930 resulted in a Convention on the Uniform Law of Bills of Exchange.

b. On account of basic ideological differences among the countries of the world, it is not possible to achieve unification of all privacy laws. Therefore, another method of avoiding the situation where courts in different countries may arrive at different results on the same matter is the unification of all privacy laws.

In 1951, a permanent bureau of Hague Conference was constituted. This has been done under a Charter which has been accepted by many countries. There are numerous other Charters, Conventions and International Institutes working towards unifying Private International Law. But international Conventions can be part of municipal law only when the same has been recognized or incorporated in the municipal law. [xvi]

Formatted on February 27th, 2019.

REFERENCES:

[i] Steve headly, private law conference paper

[ii] Dr. F.E. Noronha, Private International Law in India: adequacy of Principles in Comparison with Common Law and Civil Law Systems p.33 (Universal Law Publishing Co. 2010).

[iii] Cheshire, Private International Law p.5 (8 th edition).

[iv] Cheshire, North and Fawcett, Private International Law p.4 (Oxford University Press 14 th Edition 2008).

[v] Nigel Banks, Legal Systems, Artic Human Development Report 101,102(2004).

[vi] Supra note 4, at p.5.

[vii] Dicey & Morris, The Conflict of laws p.3(8 th Edition).

[viii] Paras Diwan & Peeyushi Diwan, Private International Law:Indian and English p.39 (Deep & Deep Publications 4 th Edition 1977)

[ix] R. Vishwanathan v. Syed Abdul Wajid, 1 st AIR,(SC 1963).

[x] Indian &General Investment Trust Ltd. v. Raja of Kholikhote , AIR, 508(Cal 1952).

[xi] Supra note 2, at p.32.

[xii] Private International Law is incorporated in the municipal legal systems of different nations and thereby becomes part of that legal system under different procedural as well as substantive laws.

[xiii] Y. Narasimha Roa v. Y. Venkata Lakshmi, 3 SCC, 451(1991).

[xiv] Supra note 8, at p.49.

[xv] The institute is now closely linked with the United Nations and the Council of Europe.

[xvi] Jolly George v. Bank of Cochin, AIR, 470 (S.C. 1980).

Nature and Scope of Private International Law

International law Subject-wise Law Notes
August 26, 2023

Private international law is a part of English law that comes into play when a court deals with a situation involving something from another country. It’s only used when this foreign aspect is present.

In other words, private international law is used when a situation is connected to another country’s laws in a significant way and it’s needed to make sure fairness is achieved. This article discusses the nature and scope of Private International Law.

Meaning of Private International Law

Private International Law is a legal framework that governs cases involving multiple jurisdictions and the interaction of different legal systems. It deals with situations where individuals, businesses or entities from one country are connected to legal issues that cross borders into other countries.

This branch of international law addresses key aspects such as jurisdiction, which determines which country’s courts have the authority to hear a case; recognition and enforcement of foreign judgments, ensuring that legal decisions from one country are respected and applied in another; and the choice of law, where the appropriate legal system to resolve the dispute is determined. Private International Law is often referred to as a conflict of laws.

Private international law doesn’t aim for or need everyone to agree on the same rules. It remains a part of each country’s own laws. Even with similarities and cooperation, private international law is quite different from public international law in two key ways: it’s about rules for individuals and businesses, not countries and its main purpose is to work within a country’s legal system and courts.

Some experts say that private international law is about the legal matters between individuals from different countries. It deals with how rights are defined, controlled and enforced when people from different countries are involved.

When people from different countries start doing legal things together, it’s important to decide which country’s rules should apply to their actions and how much those rules matter. So, private international law helps figure out which legal systems and rules should be used in these situations.

Nature of Private International Law

Private international law doesn’t aim for or need everyone to agree on the same rules. It remains a part of each country’s own laws.

Even with similarities and cooperation, the nature of private international law is quite different from public international law in two key ways: it’s about rules for individuals and businesses, not countries and its main purpose is to work within a country’s legal system and courts.

Scope of Private International Law

Private international law isn’t a separate type of law like contract or tort law. It’s a part of the legal system that shows up unexpectedly in any court case involving things from different countries. It can show up in common law cases, equity cases, divorce cases and more. Even the simplest debt case or the most complex equitable claim might need private international law to solve a problem. That’s what the scope of private international law is!

Despite not being its own branch, private international law is distinct in the English legal system, just like tort or contract law. It’s special because it always deals with three main questions:

1. Does the English court have the right to handle the case?

2. Can foreign judgments be accepted and enforced in England?

3. Which legal system, English or foreign, should apply to the case?

Let’s look at each of these questions:

(a) Jurisdiction

The main rule in common law is that the English court can only hear a case against someone who has been served a claim form in England or Wales. This rule applies whether the case involves foreign aspects or not. But there are situations where the court can have power over absent defendants, especially in foreign cases. Also, in some cases like divorce, the defendant being in the country doesn’t automatically give the court power. If the defendant lives in a European Union country, there are separate rules.

(b) Recognition

When a case has been settled in a foreign court but the defendant’s assets are mainly in England, it’s important to know if English law will accept and enforce the foreign judgment. If the foreign court had the right to decide the case, English law generally treats the judgment like its own.

(c) Choice of Law

If the English court has the power to handle the case, the next question is about which legal system, English or foreign, should apply. Private international law helps decide this. For instance, if a British person dies in Italy without a will, Italian law might apply to distribute their belongings. These rules guide which legal system should be used. Sometimes, different parts of a case might be governed by different laws.

In simpler words, private international law is like a guide at a train station. It helps figure out which “train” of legal rules to use for a case involving different countries. It doesn’t directly solve the case, but it points to the right rules. For example, if there’s a disagreement about a contract made in France and the defence is that the French rules weren’t followed, private international law says French law should decide the contract’s validity. However, the specific French law needs to be explained by an expert witness.

The Development of Private International Law

The roots of private international law go back to Roman law, even though there weren’t explicit rules for it then. Roman law ideas influenced its early formation and still affect how we think about it today. In England, this field has usually been called “conflict of law” since the seventeenth century.

This is the name of a major textbook used by practitioners now. It’s also how cases, laws and other materials about this subject are organised. In England, “conflict of law” and “private international law” mean the same thing. But the word “international” in the latter name can be misleading in one way. The subject is just as much about how different legal systems within a single country interact.

The nature and scope of private international law involves regulating legal issues that span multiple countries. It focuses on the relationships between private individuals, businesses, and entities, rather than nations. This branch of law navigates the complexities of determining which country’s laws should apply, which court has jurisdiction, and how foreign judgments are recognized and enforced.

Private international law aims to bring order and predictability to cross-border legal matters, fostering fairness and consistency. Its scope covers a wide range of areas such as contract disputes, family law, property rights, and more. While striving to harmonize international legal interactions, it operates within the context of each country’s legal system, adapting to local laws and traditions while facilitating the resolution of legal conflicts that transcend borders.

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Private International Law

Introduction

REFERENCES:

Related Posts:

Nature and Scope of Private International Law

Meaning of Private International Law

Nature of Private International Law

Scope of Private International Law

(a) Jurisdiction

(b) Recognition

(c) Choice of Law

The Development of Private International Law

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