PRIVATE INTERNATIONAL LAW

Private International Law



Private International Law

Referring to the problems being faced by Williams “Private international law” (as civil law countries such as France, Italy and Spain refer to it) or “conflict of laws” (as common law countries such as the United Kingdom, the United States, Australia and Canada refer to it) is a body of law developed to resolve private, non-state disputes involving more than one jurisdiction or one foreign law element. As the common law name -- conflict of laws -- implies, where more than one jurisdiction has an interest in a legal action, there may be a conflict between laws of the different jurisdictions involved. Conflict of laws will apply in situations such as marriage, birthrights, divorce, settlement of property, and commercial disputes when more than one jurisdiction is involved. The two questions that need to be settled in these cases are, 1) does the proposed court or tribunal in a certain nation-state (State) have the jurisdiction to hear and decide this case? and 2) which of the competing States' laws should be applied to resolve this case? An example involving conflict of laws would be the situation where a husband and wife who live in London, England decide to divorce. The wife is a Brazilian national and the husband is a British national. Together, they own property in England and in France. If the wife believes she would get better treatment in a Brazilian court than an English court, she may want to bring divorce proceedings in Brazil rather than in England. The husband may decide to bring his own court action in England if he believes this court would give him a better result than a Brazilian court would. Because States have different divorce laws, each court to which an action is brought must decide if it has the jurisdiction to hear and rule on the underlying case before it. It must also decide if it is the appropriate forum for deciding the dispute. The choice of law process in the field of tort and delict has been said to raise "one of the most vexed questions in the conflict of law. The following is a short outline of the present law. The applicable law in a tort or delict case is determined, under English law according to the rule in Phillips v. Eyre, and under Scots law according to the rule. The practical effect of these two rules is the same: the claimant must have a cause of action under the law of the place where the tort or delict occurred. Furthermore, the wrongdoer will not be liable if he has a defence under either of those two laws. It follows that no action will lie in this country in respect of a class of tort or delict unknown to our domestic law. The basic rule is therefore favourable to the wrongdoer. The exceptional role given to the substantive domestic law of the forum in the law of tort, apart from being almost unknown ...