Private international law or international private law is a series of streams of procedural law that govern the relationship between natural and legal persons of different nationalities. It dictates which legal system and which law applies to a dispute between persons with a foreign element. It is also known as a conflict of laws. The three areas of private international law are jurisdiction, choice of law and foreign judgment.
In accordance with international private law, civil procedures that contain a foreign element, such as, for example, an on-site contract entered into in another country, enforce the laws of the legal system set forth in a contract, and if any The legal system does not exist. Specified, the rules applicable to the convention apply.
Private international law or conflict of laws is a branch of law, which is private in some states and public in others, and that governs all legal disputes that affect a foreign legal element, depending on the laws that differ. – There are different results. Until Lex Kossey. The first is to determine whether the proposed forum for settlement of the dispute is an appropriate place for the decision, and the second is to determine which laws of the competing state are used to resolve the dispute. It also deals with the enforcement of foreign decisions.
Choice of law rules
Courts faced with a choice of law issue have a two-stage process:
1. The court applies the law of the forum (lex fori) to all procedural questions (eg, of course, the choice of rules of law). And
2. It counts factors that relate to or relate to legal matters from the laws of potentially relevant countries and enforce laws that are most closely related, such as citizenship (lex patriae) or residence (lex domicile). Legal status and legal capacity, the state of the country in which it is located (Lex Sites), is used to determine all property issues, the law of the place where the transaction occurs physically, or the event that occurs Legal disputes that have been brought about (lex loci actus) are often the controlling law that is chosen when the matter materializes, but related law has become a more general option.
Suppose A with French citizenship and residency in Germany correspond to B with US citizenship, residency in Arizona and Austria on the Internet. They accept joint purchases of real estate in Switzerland, currently owned by C, a Swiss citizen, but never physically meet and carry the first contract documents with fax machines, followed by printouts. A mail exchange takes place. A pays his deposit, but before completing the transaction, B acknowledges that although he has the ability to buy land under his Lex Domicilli and residence laws, he is too young for Swiss law.
To determine which courts will have jurisdiction and which laws are set out in the laws of each state. Theoretically, regardless of which case the country actually accepts. The result will be the same. (Although the extent of the damage may vary from country to country, forum shopping is such a problem for this reason). In fact, however, measures of harmonization of the conflict system have not yet reached the stage at which the normalization of the results can be guaranteed. Status of foreign law.
If a court is required to enforce foreign law, it should generally be demonstrated by foreign law experts. This cannot be argued simply because the court has no experience with foreign laws or how they can be applied in a foreign court. Due to the question of sovereignty, such foreign law can only be seen as evidence and not as law. If the local court gives a foreign law a supernatural effect, it is less than sovereignty and can therefore act unconstitutionally.
General principles
Although there are some similar rules for international conflicts, there are several general principles that are recognized to varying degrees worldwide. The old international doctrine of etiquette, which is similar to the golden rule of the Bible, states that sovereign states must also give manners and privileges, explaining why one country will enforce the law of another. A formal requirement of reciprocity may in fact limit the range of manners and privileges that other states are prepared to extend. The autonomy of the parties (i.e. the freedom of the parties to decide which court will hear their case and which law will regulate them) is recognized by most countries in Latin America with notable exceptions.
Jurisdiction
The first question in an international case that may concern conflict issues is which court is responsible for deciding the issue. Although the applicant decides to file a lawsuit, the courts may not be competent or have jurisdiction in that location, but do not wish to practice them due to a non-determined forum (Latin: “forum inconvenient”). As can happen in some common law countries.
Difference between civil and customary countries law in the absence of choice of parties
Traditionally, civil and common law countries have used various approaches to determine which court has jurisdiction over civil actions if the parties have not agreed to the forum or presented it on the forum. Civil law countries believe that there is one main place where an action can be taken: a person’s residence or the location of a legal entity such as a company (“general jurisdiction”).
Differences between civil-law and common-law countries in the absence of a choice by the parties
Traditionally, civil-law and common-law countries have followed different approaches in determining which court has jurisdiction in a civil action when the parties have not agreed on or submitted to the forum. Civil-law countries start from the premise that there is one principal place where a suit can be filed: the domicile of an individual or the seat of legal persons such as a corporation (“general jurisdiction”). In addition to these general grounds of jurisdiction, an action may generally be brought in the courts of the place where the action has a special connection – e.g. B. If an unlawful act has been committed or its effect has been felt, if there has been an alleged breach of a contract or if it is where the property is located (“exclusive jurisdiction”). Countries have restricted the practice of jurisdiction to protect vulnerable parties, such as workers and consumers (and by agreement these restrictions are prohibited). Such a pattern has appeared, for example, in the procedural legislation of the European Union.
Notification of parties
Fundamental fairness assumes that the accused receives sufficient notification to give him an opportunity to defend himself. In common law countries, this notification is served by “serving the case” on the defendant; Similar procedures exist in countries with civil law. Personal delivery to the accused is considered ideal; “Alternative service” (for example, even though the publication) is a last resort if the suspect’s location is unknown. There are special problems in international affairs. Countries often work bilaterally either on the basis of clear agreements or, for practical reasons, to assist the courts of another to serve the accused.
A very effective multilateral mechanism is the Hague Convention on the Service of Judicial and Extraordinary Documents in civil or commercial matters in nearly 50 countries including the United States, China, Russia and all. European Union countries. It provides for a “central authority” in each member state to receive service requests from the party of other states to the convention and to execute them in accordance with their national procedures.
REFERENCES
- https://definitions.uslegal.com/i/international-private-law/
- https://www.britannica.com/topic/conflict-of-laws/The-nature-of-conflicts-law
This Article is Authored by Yashika Ahuja, 2nd Year, B.B.A.LL.B Student at Fairfield Institute of Management and Technology, GGSIPU, Delhi.
Also Read – The Responsibility of State Under International Law
