PRIVATE INTERNATIONAL LAW

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

Private international law

Importance of international law

SUBMITTED TO: SUBMITTED BY:

Shipra Dubey Group 10

Assistant Professor, Roll No:

DSMNRU, Lucknow L.L.B. 4th year

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TABLE OF CONTENTS

Introduction………………………………………………………………….3
The notion of private international law……………………………………….4
Objectives of private international law……………………………………….5
Sources of private international law…………………………………………..6
the europeanization of private international law………………………………6
international treaties……………………………………………………………8

national legislation……………………………………………………………...8

the impact of fundamental rights on private international law………………….9

the importance of private international law for family issues in an era of

globalization…………………………………………………………………….11

case study……………………………………………………………………….11

Private International Law, the Rule of Law, and Economic Development…….12

Conclusion………………………………………………………………………14

Reference………………………………………………………………………..15

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INTRODUCTION

This research has as its subject the impact of the rights guaranteed in the ECHR on private
international law. A necessary first step in such a discussion is an introduction to private
international law. It should be understood from the outset that every country has its own system of
private international law. This also applies to the Contracting Parties to the ECHR. Moreover, what
is exactly understood as private international law even differs from country to country. While every
State has its own national rules on private international law, many States are also party to
international or bilateral treaties regarding issues of private international law. Furthermore, the EU
Member States, which are all also Contracting Parties to the ECHR, are bound by EU rules on
private international law.

It is, of course, impossible to discuss all the different rules of private international law in this
chapter, or to do justice fully to all the intricacies of private international law1.1 The aim of this
chapter is merely to introduce the general notion of private international law and some of its
particularities to the reader who may be less familiar with issues of private international law.
Additionally, a first foray into the discussion of the impact of the ECHR on private international
law will be offered, by discussing how private international law has traditionally dealt with
fundamental rights. In order to do so, first the notion of private international law will be further
introduced (in Sect. 2.2). Next, some of the goals of private international law will be examined
(Sect. 2.3). Thereafter, the sources of private international law will be discussed (Sect. 2.4).
Finally, a first foray into the subject of this research will be made by an examination of the role of
the public policy exception in private international law, particularly with regard to fundamental
rights. The notion of mandatory rules will also come up here

THE NOTION OF PRIVATE INTERNATIONAL LAW

1
See for a general overview with regard to private international law, e.g., Bucher 2011; Cheshire et al. 2010;
Clarkson and Hill 2011; Dicey et al. 2012; Dutoit 2005; Niboyet and De Geouffre de la Pradelle 2011; Siehr 2002;
Strikwerda 2012.

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As stated above, every legal order in the world has its own rules relating to matters of private law.
Private law is concerned with all legal relationships between private entities and thus includes, for
example, family law and the law of contracts and obligations. These laws differ from country to
country. However this does not stop interaction between people in different countries. People may,
for example, marry someone from another country or find a job in a different country. As has been
remarked in Chap. 1, it is this simple fact that is the raison d’être of private international law.
Private international law is the area of law that comes into play whenever a court is faced with a
question that contains a foreign element, or a foreign connection. The mere presence of such a
foreign element in a legal matter raises a number of questions and it is the function of private
international law to provide an answer to these questions and to ensure just solutions. It has been
established in Chap. 1 that private international law is concerned with three main issues. The first
issue with which one may be faced in a case with a foreign element is the issue of jurisdiction:
which court is competent to hear such an international case? If, for example, a conflict arises
concerning a contract between an English company and a Dutch company, should this issue be
brought before a court in England or the Netherlands? The second issue that could arise after a
decision on the competent court has been made is whether, for example, English or Dutch law
would be applied to this case. Or, perhaps, the parties have chosen the law of a third country, or a
uniform international law may even apply to their dispute. Finally, after the case has been decided,
it is necessary to determine if, and under what circumstances, this decision can be recognized and
enforced in another country. These three issues could be considered to be the nucleus of private
international law, as it is generally accepted in most countries that these issues are part of private
international law2. As noted above, the rules of private international law are not understood to
include exactly the same topics in every country. For example, in France and Belgium the rules on
nationality are considered part of private international law3. In Switzerland one may, for example,
find rules on (international) arbitration in the private international law statute. However these
topics will not be included in this book. One of the particularities of private international law rules
is that they merely refer to either a competent court, the applicable law, or whether recognition
and enforcement are possible. One could therefore think of private international law rules as

2
Cf. Kegel 1994, Chap. 1, pp. 1–2
3
See with regard to France, e.g., Audit 2008, p. 767ff; see with regard to Belgium, e.g., Erauw 2006, pp. 7–8.

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procedural rules, or perhaps rather as technical or formal rules, which are not concerned with the
substance of a dispute. One should, incidentally, also note that the nature of private international
law rules relating to the applicable law (conflict rules) is generally considered to be different from
the rules relating to jurisdiction and recognition and enforcement, if solely because only conflict
rules may lead to the application of foreign law. The latter rules are thus considered to be of a more
substantive nature, while rules regarding jurisdiction and the recognition and enforcement have a
procedural character. It is important to note that in this book, the impact of the Court’s case law
on issues of private international law will be examined in the first place. As has been noted in
Chap. 1, the Court, in principle, does not review measures taken by the Contracting Parties in
abstracto and will consequently only assess the result of the application of private international
law rules. Therefore, the impact of the ECHR on the three main issues of private international law
should be understood as the impact of this instrument on the result of the application of private
international law rules. The peculiar nature of private international law rules is thus of little
consequence for this book.

OBJECTIVES OF PRIVATE INTERNATIONAL LAW

One of the main reasons for States to have a system of private international law— which will
occasionally lead to the assertion of jurisdiction in a case with international connections, the
application of a foreign law, or the recognition and enforcement of foreign judgments—is the
reasonable and legitimate expectations of the parties.4 Completely disregarding foreign laws and
decisions, or even the willingness to entertain international cases, would lead to injustices for the
parties involved in such international proceedings. Another important objective of private
international law is the international harmony of decisions. This classic goal of private
international law was first introduced by von Savigny. It entails that countries should strive to
reach the same decisions in problems of private international law. This latter objective, however,
is difficult to achieve, as every country is, in principle, free to decide how to deal with issues of
private international law. This does not take anything away from the importance of this notion.
The international harmony of decisions is not an empty vessel. The taking into account of foreign
laws and decisions by States helps avoid ‘limping’ legal relationships, i.e., legal relationships that
are recognized in one country but not in another. One should not lose sight of the fact that rules of

4
See, e.g., Dicey et al. 2012, pp. 4–5; Clarkson and Hill 2011, pp. 9–12.

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private international law are also in the interest of the (forum) State, as it benefits from stability
with regard to cross-border legal relationships.

SOURCES OF PRIVATE INTERNATIONAL LAW

Another particularity of private international law is the variety of its sources. Rules of private
international law can be found not only in the national legislation of States, but also in international
treaties and European law. The internationalization (and Europeanization) of rules of private
international law is becoming increasingly more important for this area of law.5 For Member States
of the EU, for example, the European legislator is by now the most important legislator in the area
of private international law. This is due to what has been called the ‘Europeanization’ of private
international law (Sect. 2.4.1). Many rules of private international law have traditionally also been
concluded between different States and laid down in international or bilateral treaties (Sect. 2.4.2).
Finally, every State also has national legislation on private international law (Sect. 2.4.3).

THE EUROPEANIZATION OF PRIVATE INTERNATIONAL LAW

The most important recent development for private international law in Europe is the so-called
Europeanization or—at the time—‘Communitarization’ of private international law, which
essentially entails the continued involvement of the European Union legislator in the field of
private international law. It was not truly possible for the European Community (now Union)
legislator to introduce legislation in the area of private international law until the Treaty of
Amsterdam. It should not be forgotten that before this development there were also private
international law instruments created in a European context, but these had the form of international
conventions, which had to be signed and ratified by all participating countries. Examples of such
initiatives are the Brussels Convention concerning jurisdiction and the recognition and
enforcement of foreign judgments and the Rome Convention concerning applicable law. The
Brussels Convention has, incidentally, been copied by the Lugano Convention, thus enlarging the
number of States party to the Convention with some non EU-Member States. The disadvantage of
merely cooperating by way of international conventions in the field of private international law is
evident. Upon every accession of a new member State, the convention had to be updated and

5
See, e.g., Dicey et al. 2012, pp. 4–5; Clarkson and Hill 2011, pp. 9–12.

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ratified again by all the members. This has happened several times with regard to both the Brussels
and the Rome Convention, but this ultimately proved to be too slow and difficult a process and it
became more burdensome with the increasing number of Member States. With the entry into force
of the aforementioned Treaty of Amsterdam on 1 May 1999, the Community legislator entered the
field of private international law, and one could say that it has not held back. Numerous new
initiatives have been taken on the European level. The Brussels and Rome Conventions have, for
example, both been transformed into EU instruments, and are now known respectively as the
Brussels I Regulation and the Rome I Regulation. A number of complementary instruments to the
Brussels I Regulation have been introduced, which basically deal with smaller, simple claims. The
so-called Rome II Regulation has been introduced with regard to the law applicable to non-
contractual obligations. 25 The EU legislator has also delved into the area of family law with the
Brussels II bis Regulation and the Rome III Regulation. It is clear that the ongoing harmonization
of the rules of private international law of the EU Member States is here to stay and that the further
Europeanization of the rules of private international law will undeniably have major consequences
for the respective systems of private international law of the Member States. An important factor
therein is the fact that the Europeanization of private international law not only brings further
harmonization, but concomitantly adds objectives following from European law which are
unfamiliar to private international law, to the conflict of laws methodology in Europe. Important
elements of European law thus suddenly enter the realm of private international law and in this
way an ‘instrumentalisation’ of private international law in Europe has been introduced. Rules of
private international law are thus permeated by the four fundamental freedoms of the EU Treaty,
by a focus of the principle of non-discrimination, the impact of fundamental rights, and the rule of
mutual recognition. Since the entry into force of the Lisbon Treaty the harmonization of the rules
of private international law is now governed by Title V, which will bring further changes to private
international law within the EU.

INTERNATIONAL TREATIES

The Hague Conference of Private International Law, an international organization established in

1893, is the most prominent organization the field of private international law and as such is
responsible for many conventions concerning issues of private international law. Over the years
the Hague Conference has developed conventions in the areas of international family law,

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international legal cooperation and litigation, and international commercial law. It should be noted
that the European Community decided to accede to the Hague Conference of Private International
Law in 2006. In the field of international trade law and arbitration the United Nations (UN) is an
important player. In addition to multilateral treaties, there are also many bilateral treaties between
countries in the area of private international law. Such bilateral treaties only operate between two
countries and the precise content of such agreements varies. One could say with regard to European
countries that such bilateral treaties are generally being replaced by multilateral conventions, but
the varying contents of bilateral agreements preclude them from becoming totally meaningless, as
some aspects of private international law issues between the two countries may fall outside the
scope of the multilateral conventions.

NATIONAL LEGISLATION

The importance of national legislation on private international law has declined within Europe.
Many of the relevant rules of private international law have an international origin, while for the
EU Member States, EU legislation is of particular importance. Nevertheless, this has not stopped
European countries from developing new codifications of private international law. This
development started in Switzerland and many European countries have since followed suit. In
Switzerland, for example, private international law is governed by the Federal Law on Private
International Law of 18 December 1987. This law regulates virtually all aspects of private
international law in Switzerland. The Netherlands has recently finally codified a number of rules
of private international law (mostly choice of law rules) in Book 10 of the Dutch Civil Code. In
England, private international law rules consist of both statutes and case law. Historically, case
law was the most important source of private international law, England being a common law
country, but legislation now also has an important role.

THE IMPACT OF FUNDAMENTAL RIGHTS ON PRIVATE INTERNATIONAL LAW

In the next chapter the rights guaranteed in the ECHR will be discussed, and thereafter the
examination of the impact of this instrument on the three main issues of private international law
will begin in earnest. However, this would appear to be the proper place to further reflect on the
fact that private international law has previously dealt with the impact of fundamental rights. The

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public policy exception has historically been the instrument of private international law used to
deal with the impact of fundamental rights. Therefore, it deserves separate discussion here in this
introduction to private international law. In the subsequent chapters the precise role of this
instrument with regard to the impact of the rights guaranteed in the ECHR will also be further
discussed.43 When the application of a foreign law or the recognition or enforcement of a foreign
judgment would result in a violation of the fundamental values of the forum, the public policy
exception or ordre public will be invoked in order to set aside such a repugnant result. The public
policy exception is present in virtually all systems of private international law and can be found in
statutes, codes, and international conventions. It has even been referred to as a general principle of
international law by Judge Lauterpacht in his separate opinion in the Boll case. He opined that:

[I]n the sphere of private international law the exception of ordre public, of public policy, as a
reason for the exclusion of foreign law in a particular case is generally – or, rather, universally –
recognized. (…) On the whole, the result is the same in most countries – so much that the
recognition of the part of ordre public must be regarded as a general principle of law in the field
of private international law.

This would indicate that the public policy exception may even be invoked in cases in which an
international treaty is silent on the matter. However, this is not to say that the public policy
exception cannot be consciously left out of a treaty. If a public policy exception has been
deliberately omitted in an international treaty, it cannot be invoked. This, incidentally, leaves
unanswered the question of whether it is possible to invoke one of the rights guaranteed in the
ECHR in such a situation. This is essentially a question of the hierarchy between international
instruments and will be discussed in relation to the ECHR in the next chapter.The public policy
exception is clearly the safety valve, or the escape hatch, of private international law. As was
discussed above, private international law by its nature leaves room for judicial solutions that are
alien to the forum. Such flexibility is necessary in order to regulate cross-border affairs efficiently
and reasonably. However, this flexibility finds it limits in the public policy exception.

The exact composition of the public policy exception—its content—is necessarily vague, as it
comprises the fundamental values of the forum. This inevitable vagueness is exactly what some
regard as a fundamental problem of public policy. It should also be understood that public policy
differs from country to country, as values differ from country to country. At the start of the

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twentieth century public policy was already being referred to as ‘the most evident principle of our
science and at the same time the one which is the most difficult to define and to analyse.’ In addition
to national fundamental values, it has generally been accepted in most countries that human rights
are part of the public policy exception. This means that in the Member States of the Council of
Europe, the ECHR may be considered part of public policy, as will be further discussed in the
subsequent chapters of this research. Compared to the inherent vagueness of the content of public
policy, the invocation and working of the exception is relatively clear. The public policy exception
will be invoked if the result of the application of a foreign law or the recognition or enforcement
of a foreign judgment would lead to an untenable result. It should be noted that the exception is
thus invoked against the actual result of the application of the foreign law; it is not the foreign law
in general that is tested, but rather the result of the application of that law. Public policy should be
used only under exceptional circumstances, hence the frequent use of the expression of the public
policy exception. It has generally been accepted that it should not be used every time the
application of a foreign law would lead to an undesirable result, but only in cases in which such
application would lead to a truly unacceptable result. This cautious use of the public policy
exception is, in international conventions, often emphasized by the insertion of the expression
‘manifestly incompatible’.An important characteristic of the public policy exception is its relative
character.This naturally stems from the goals of private international law, which include the
respect for other legal cultures. This relative character is manifested by the fact that it is generally
observed that the operation of the public policy exception is related to the proximity between the
issue and the forum. If a case has little or no connection to the forum, the public policy exception
cannot be invoked—with the exception of certain extreme cases, in which the applicable law is so
fundamentally against the values of the forum that the application of that law would never be
permitted in the forum. If a case has more connections or links with the forum, the threshold for
the application of the public policy exception is lower. This thus entails that if a case has a closer
connection to the forum, because, for example, the parties reside in the forum, then the public
policy exception is more likely to be successfully invoked than in the event of the parties residing
abroad. There are some differences of opinion as to the exact functioning of this relative character
of the public policy exception—compare, for example, the German theory of Binnenbeziehung or
Inlandsbeziehung and the French theory of the effect attune of ordre public—but the general
principle is widely accepted and its operation is not that different in practice.

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The Importance of Private International Law for Family Issues in an Era of

Globalization

A continuing theme of the Conference on Marriage, Democracy, and Families has been the role of
the state in structuring and regulating family relationships. But like so many areas, in the era of
globalization, members of a family unit-or the family itself-may move across national borders.
Thus, nationals of different countries may set up the family unit in a particular country, or the
family itself may move across national borders. Family units may break up, and regulation of the
dissolved family unit may be of concern to more than one state. Thus, on a variety of issues, in the
transnational context, the different values that define family structure within particular cultures
will come into direct conflict. Private international law (conflict of laws) has much to contribute
to the accommodation of these competing interests. Like so many issues of globalization,
regulation of family issues in the transnational context can be addressed through principles of
territorial accommodation and/or agreement on universal norms. However, consensus about
universal norms may be difficult to achieve given strong governmental interests in the structure of
the family and the relationship of family members by respective states. Two topics-crossborder
custody disputes and same-sex unions-serve as examples of the more general problem. Each offers
an approach incorporating principles of private international law to resolve the tensions.

CASE STUDY

Most recently, in Fawcett v. McRoberts the Court of Appeals for the Fourth Circuit found not only
that a restriction on the custodial father's removal of the child from Scotland under Scottish law
did not create a "right of custody" in the mother, but also that an express undertaking by the father
to the Scottish court and recorded by that court did not give the Scottish court a "right of custody"
making the removal wrongful under the Abduction Convention and giving rise to an obligation to
return the child.43 There can be no clearer violation of the Convention's mandate against wrongful
removals than a removal that intentionally violates a court's absolute interdiction against leaving
the jurisdiction. Whatever the merits of the debate over ne exeat clauses more generally, the

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violation of the court's order in Fawcett must be considered a breach of custody rights if the
Convention is to have any integrity. In a quite similar scenario, the Canadian Supreme Court, in
Thomson v. Thomson,44 held that a custodial mother's removal of a child from Scotland to Canada
in violation of a non-removal clause in an interim custody order was in breach of "custody rights"
vested in the Scottish court by reason of ongoing proceedings in Scotland. Justice La Forest's
opinion in Thomson emphasized that Article 3 of the Convention provides that "custody rights"
can be held by "'an institution or any other body, either jointly or alone,"' and that a non-removal
clause preserves the jurisdiction in the court to decide the merits of custody issues at a later date.
At other points, courts have shown greater sensitivity to the need to depart from domestic concepts
within their own legal traditions when dealing with an international treaty. For example, in
determining the critical issue of habitual residence under the Abduction Convention, courts have
disclaimed the definitions provided in their domestic family law acts to arrive at concepts more
capable of common definition and that will ensure worldwide consistency. Thus in Chan v. Chow,
46 the Court of Appeal for British Columbia reversed a lower court's finding that the child was
habitually resident in Canada. Rejecting the definition of habitual residence as it appeared in the
provincial Family Relations Act, the Court of Appeal instead relied on English and other
international precedents for guidance because otherwise "worldwide consistency in the application
of the Convention will be lost.' '47 Also in the context of evaluating habitual residence, the Court
of Appeals for the Ninth Circuit issued a similar admonition in Mozes v. Mozes: "To achieve the
uniformity of application across countries, upon which depends the realization of the Convention's
goals, courts must be able to reconcile their decisions with those reached by other courts in similar
situations.

Private International Law, the Rule of Law, and Economic Development

Professor John F. Murphy has taught and written about a wide range of subjects, including public
international law, international business and economic regulation, the constitutional law of the
European Union, and international terrorism, to name just a few. Among the persistent and
unifying themes of his work have been a focus on the relationship between international and
domestic law, the importance of respecting the rule of law on the international as well as domestic
levels, the need to create and use effective methods of dispute settlement, and the responsibility of
international lawyers to ensure that the law adapts and responds to the structure and needs of the

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ever-evolving international community. In that same spirit, and in Professor Murphy's honor, I
want to offer a few comments on one of the few subjects about which he has not yet written
extensively-private international law. I have little doubt that he shares my views about its
increasing importance to the world community. The main point of my remarks is simply to
emphasize an obvious truth which in my experience is often overlooked: that the principles,
instruments, and mechanisms of private international law are essential to the trans-border flow of
trade, capital, people and ideas, the effective settlement of disputes, the well-being of families and
children, and therefore, to global economic development and the rule of law. I am certain those are
goals to which John Murphy fully and enthusiastically subscribes.

CONCLUSION

This brief overview has been intended to substantiate the proposition that the principles,
instruments, and mechanisms of private international law, as reflected in its disparate endeavors,
contribute directly to the transborder flow of trade, capital, people and ideas, the effective

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settlement of disputes, the well-being of families and children, and therefore to global economic
development and the rule of law. By focusing primarily on the relationship between international
and domestic law, the broad private international law project adds an essential element to efforts
to promote economic progress and the legitimacy of the law internationally as well as domestically.
Private international law plays a critical role in helping to ensure that the law can adapt and respond
effectively to the changing needs and structure of the international community. It also suggests
that the field of private international law-viewed comprehensively-has several important
characteristics. First, the subject matters it covers are diverse, as different as family law, dispute
settlement, assets financing, international trade, and consumer protection. Second, they generally
involve both substance and procedure, melding questions of conflicts of law, jurisdiction, and
enforcement ofjudgments with dispositive principles and rules that speak to the merits of the
subjects they treat. Third, in working towards the goals of coordination, unification, and
harmonization, the international community employs a range of different modalities: formally
binding conventions and protocols, non-binding model laws and rules, hortatory principles and
legislative guidance, and "best practices"-depending on which might be considered most likely to
achieve the objective most effectively in light of the circumstances. Fourth, this work takes place
in a range of institutional and multilateral forums, rather than simply in national courts or
legislatures. This structure permits the active and productive involvement of a wide range of
interested parties and other stakeholders, from governments and government agencies to
international organizations, non-governmental organizations, and relevant elements of the private
sector.

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Bonomi A (1999) Mandatory rules in private international law: the quest for uniformity of decisions in a
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Borrás A (2005) Le droit international privé communautaire: realités, problèmes et perspectives d’avenir.
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