Private international law SIMAD UNIVERSITY FACULTY OF LAW

Introduction/Nomenclature Two names, neither of which are fully descriptive nor wholly accurate and precise but could be interchangeably used to designate the subject, are in common use viz. Private International Law and Conflict of Laws (also shortened Conflicts rules).

Definition and Analysis There is no agreed definitions it can be described as a branch of law which provides procedures and guidelines to assist a judge in private litigation, to select a court and a law to which a case is closely connected, which might appropriately be applied in resolving a legal dispute before the court arising out of a set of fact, events or transactions which have a foreign element. It, traditionally, also comprises rules of recognition and enforcement of foreign judgments and arbitral awards.

What is it then? Private international law refers to that part of the law that is administered between private citizens of different countries or is concerned withthe definition, regulation, and enforcement of rights in situations where both the person in whom the right inheres and the person upon whomthe obligation rests are private citizens of different nations.

What did scholars define Bathy: “PIL is that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system”

foreign element". The basic concept enshrined in the above definition is the idea of a "foreign element". What do we mean by foreign element? And what does it refer to? It is better understood by employing an explanation. When a case is said to contain a foreign element, the reference(s) may be of three natures__personal, local, or material__in that, respectivelyillustrated,

Example if one of the parties of the case is a foreigner (including one from another federating unit) or the transaction of any nature took place, totally or partially, abroad (outside the forum state) or, finally, the object of the dispute (property, esp. immovable property) is situated in another state (including a member of federation); the case is said to contain a foreign element.

Nature The application of the rules of conflicts law (choice of law) does not by itself decide a case, unlike that of the rules of law of contracts, tort, or family. It does not solve a case in the sense that its rules do not furnish a direct substantive solution to the dispute at hand. It carries the case only half a way until a certain category of law is chosen in order to dispose of the case with a substantive remedy. We cannot talk about conflicts law rules after we choose the applicable system of law. The function of the rules is only up to that stage

PIL contains has the following nature PIL contains the following basic nature: its subject matter always includes a foreign element; one of its prime nature is the pursuit and application of the appropriate legal system and jurists have been more influential in this branch of the law than is typical with other legal subjects.

It is part of national laws Conflict of laws is one department of law but not one amongst the peer departments such as family, contracts, and tort. It does nothing on its own. It deals with most private cases of civil and commercial nature so long as they contain a foreign element. To mention a point, this discipline is not concerned with public cases like criminal, revenue, customs, constitutional and administrative cases.

Scope conflicts mainly deal with three major sub-divided but interrelated areas. They are, in the chronological order in which the three subjects are likely to be met in practice, judicial jurisdiction, choice of law, and recognition and enforcement of foreign judgments and foreign arbitral awards.

Difrence between public and private international law 1. As to consent: Public international law based on the consent of the state.Private international law is not based on the consent of the states. 2. As to object: Public international law regulates relation ship of states inter se and determine rights and duties of the subject states at international sphere.

Cont… 3. As to conflict of laws: Public international law does not involve in conflicts of laws. Private international law involves in the conflicts of laws. 4. As to nature: Public international is same for all the states.Private international may be different in various states.

Cont.. 5. As to sources: Public international law has its sources in treaties, custom etc. etc. Private international law has its sources in the legislation of the individual state to which the litigant belongs. 6. As to application: Public international law applicable to criminal as well as civil cases. Private international law is applicable to civil cases only, which present themselves for accession of courts of the state.

Cont.. 6. As to subject: Public international law deals with the states. Private international law deals with the individuals. 7. As to municipal law: Public international law is not part of municipal law but Private International law is a part of municipal law 8. As to jurisdiction Public international law does not involves determination on the question of determination. Private international law determines court which will have jurisdiction to decided issue in question. 9. As to scope: Public international law has wider scope. it is of universe character. Private international law has lessor scope.

Summary This field of study is known by many names. The most used ones are Private International Law and Conflict of Laws. It is known as Private International Law in many Civil Law Legal System following countries mainly because it regulates private cases of citizens, domiciliaries or residents of two or more politically independent territories.  

Cont.. In the definition of this discipline, the main element is 'foreign element'. A case is said to contain a foreign element if one of the following three situations exist: a person is from another jurisdiction, a transaction is concluded in another jurisdiction or an event which is a cause to the case happened in other jurisdiction and thirdly an immovable or movable is situated abroad

Cont… Conflicts cases could arise at both international and national arena (for the latter, as between federating units). This is because transactions do occur in both situations

cannot avoid it. The cases arise as of necessity cannot avoid it. The cases arise as of necessity. In this connection, states or regions of a given federation are, for conflict of laws purpose, considered as independent states.  Traditionally, the scope of conflict of laws is divided into three: judicial jurisdiction, choice of law and recognition and enforcement of foreign judgments. However, there are some countries that limit the scope into the first two. On the contrary, some other states add more elements.

Discussion Questions What is conflict of laws?   How do you differentiate cases containing foreign elements from those of cases fully domestic? What is special about conflicts cases? What are the distinguishing features of Private International law? In our normal course of life, conflicts issues do unavoidably arise. Discuss Why should we apply a foreign law? What is wrong if we indiscriminately apply the local law for those cases that contain and do not contain a foreign element? Can you tell us the justifications behind opening our doors to foreign cases?

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