International Private Law: Key Concepts and Principles
International Private Law
Introduction
Sociological and Legal Factors
Two key sociological factors shape international private law:
- Cosmopolitanism: This refers to the universal human desire for interaction and connection with others. Technological advancements have facilitated travel and communication, leading to a more interconnected world.
- Globalization: This ongoing process of integration and interdependence expands geographical spaces and fosters interaction among members of the international community.
From a legal perspective, legislative diversity arises from the involvement of various legal systems associated with different territories and nationalities.
Definition of International Private Law
International Private Law is a legal discipline that determines which law or jurisdiction applies to cases involving multiple legal systems. It also addresses the extraterritorial effects of legal acts and judgments.
Connecting Factors and Classification
Structure of Connecting Factors
- Complete, Bilateral, or Perfect: These standards fulfill a dual function, determining the applicable law in each case.
- Incomplete or Imperfect Unilateral: These standards only set limits but don’t specify the applicable law, creating a problematic separation between domestic and international law.
Origin of Connecting Factors
- Single Method: Rules originate from the jurisdiction of each state.
- Collective Method: Rules arise from conventions and international treaties.
Types of Connecting Factors
- Single Factor Connection: The standard has one connecting factor (e.g., nationality, address, place of an event). Example: Article 34 on successions, where the connecting factor is the deceased’s domicile.
- Single Factor Complex Connection: The standard has one connecting factor subject to conditions. Example: Article 289 on fortuitous collisions, where the connecting factor is the collision, and the condition is a common flag.
Character and Nature of International Private Law
International Private Law exhibits extraterritoriality, resolving conflicts outside national law. It is positive law, containing current regulations and treaty legislation. It addresses private interests in international relations and possesses a sui generis legal nature, encompassing elements of:
- Public Law: Addresses nationality and the legal status of foreigners.
- Private Law: Governs relations between individuals from different states (e.g., marriage, contracts).
- International Law: Legal relationships can be based on treaties and conventions.
- Domestic Law: Rules are adopted by each state’s legislature.
Divisions of International Private Law
By Origin
- Natural: Doctrines from legal scholars.
- Positive: Existing systems in different states.
By Scope
- Particular: Systems established by each country.
- General: Conventionally accepted rules or universally accepted principles.
By Content (Bustamante Code)
- Book I – International Civil Law: Conflicts related to personal status, marriage, divorce, contracts, inheritance.
- Book II – International Trade Law: Conflicts related to commercial capacity, corporations, bankruptcy, maritime law.
- Book III – International Criminal Law: Its placement within private international law or international law is debated.
- Book IV – International Procedural Law: Addresses jurisdiction, court appearances, and related matters.
International Public Law vs. Private International Law
Public International Law regulates relations between states, primarily through treaties and agreements. Private International Law regulates relations between individuals from different states, resolved through courts. Both use treaties and domestic law as sources, but the latter uses domestic law directly.
Non-Retroactivity of Connecting Factors
Debate exists regarding the application of new connecting factor standards to legal relationships established under prior standards. The principle of non-retroactivity suggests that new legislation should not govern relationships validly formed under pre-existing rules.