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Unification of
Private
International Law
[Type the document subtitle]
Introduction
Private international law is that part of the law of any State which comes into
operation when a court is called upon to determine a suit containing a
foreign element. Such a foreign element may exist, for instance, because a
contract has been made or is to be performed in another State or because
the recognition of a divorce obtained by persons domiciled abroad may arise.
Since World War II, international trade has also grown exponentially and with
it the importance of international law.
different nations, the need for increased harmonization of private laws has
become apparent.
Harmonization, unification, codification and reform in international law have
long been the centre of international efforts to facilitate international
transactions with lower costs to enterprises and higher legal certainty.
Private international law is one the instruments regulating social relations in
a situation of conflicting legal orders, in other words, social relations with a
foreign element.
If we trace back in history the attempt to unify international law the
unification of private law started on both sides of the Atlantic in the second
half of the 19th century. When scrutinized, the treaties concluded until World
War I show that the matters regulated by those treaties invariably
transcended the traditional limits of private law as perceived in those days.
In a book published in 1894 and entitled tude de Droit International
Conventionnel the author, who was secretary general of the International
Office for Intellectual Property in Berne at the time, lists what he calls
diplomatic arrangements also called conventions which serve to avoid
conflict o f laws. The list comprises conventions on maritime law, inland
navigation, railway transport, postal and telegraph communications, trade
relations, customs and currency, and finally copyright and industrial property.
There is one important common feature about all these matters: All of them
affect national interests, and many of those conventions are not limited to
provisions dealing with private relations, but also contain regulations
pertaining to public law. It is perhaps even more appropriate to say that, in
the treaties of the early years, the private law content was considered as a
kind of annexe to public law rules. Therefore, the use of the international
treaty suggested itself when it came to international unification.
This proposition can be further underpinned in respect of many areas
mentioned above. For instance, the protection of industrial property which
was implemented by the Paris Convention of 1883 in Europe and by two of
the 1889 Montevideo Conventions in South America. From the very
beginning industrial property rights have been considered as a kind of
privilege granted by each sovereign state in respect of its own territory and
not reaching beyond. Consequently, the owner of a patent or trademark
must strive for protection in all states where he expects his invention or
trademark to be profitable. For the state authorities granting that protection
to foreign applicants this raises the issue of national treatment which is a
matter of public law and the central issue covered by the above mentioned
conventions. Similar arguments can be made in respect of the Berne
Copyright Convention of 1886.
Another area of the law that has been the object of intensive unification
efforts ever since the end of the 19 th century is private international law. The
ambivalent nature of this discipline is well-known. For continental legal
theory in Europe it is part of private law determining the applicable law in
private relations. On the other hand, the theory of comity of nations which is
rooted in categories of public international law such as the sovereignty of
nations has had a strong impact on private international law in certain
countries such as the United States. Before World War I the diplomatic
dimension of private international law was perceived on the European
continent much more clearly than it is today. Mancini, the influential Italian
scholar and foreign minister had declared three principles as fundamental to
private international law, two of them being state-related: freedom,
nationality and sovereignty. The application of foreign law was considered as
a kind of complaisance vis--vis the foreign state. Therefore the German
ministry of foreign affairs successfully objected to the adoption of bilateral
conflict rules in the codification of German private international law in the
1890s; conflict rules referring to foreign law were thought to be a matter of
diplomatic convention. In accordance with this view the first conventions
agreed upon by The Hague Conference on Private International Law in 1902
provided only for the obligation of contracting states to apply the law of
other contracting states. Contrary to the modern Hague conventions, cases
involving the law of non-contracting states were not covered. Aspects of
sovereignty also played an important role in the first conventions on
maritime private law which were prepared by the Comit Maritime
International and were concluded in Brussels in 1910.
As evident, uniform law conventions of the pre -World War I period invariably
had a strong public law dimension. The use of the international treaty as an
instrument of unification therefore was logical and may even have suggested
itself. The private law content of these conventions gradually increased in
course of time. But the breakthrough towards pure private law conventions
did not happen until after the First World War. The first convention that
exclusively dealt with private legal relations was the Brussels Convention on
Bills of Lading of 1924 which is better known as the Hague Rules. It is
significant that the scope of application of this instrument is in no way
related to the nationality of the parties or the nationality of the ship, but only
to the issue of a bill o f lading in a contracting state. Further conventions of
the interim period between World Wars I and II give evidence of a clear
distinction between private law and public law. This is true for the Warsaw
Convention on the International Carriage by Air and also for the various
The
International
Chamber
of
Institute for the Unification of Private Law (UNIDROIT) and later on under the
patronage of the United Nations, The UN Commission for International Trade
Law (UNCITRAL) were founded. Except for the directly applicable UN
convention on Limitation Period in the International Sale of Goods (1974) and
the UN Convention on Contracts for the International Sale of Goods (known
as Vienna Convention of 1980), all three initiatives went rather the way of
alternative unification, notably in the form of standardized contract terms
1
The first session of The Hague Conference took place already in 1893. On its seventh
session in 1951 the Statute of the Hague Conference was adopted and its irregular
meetings were converted into the international organization. The Czech Republic has been
a member of the HC since 1993. Convention of 15 November 1965 on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention of 18
March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters and
Convention of 4 May1971 on the Law Applicable to Traffic Accidents belong among the
most important deeds of the Conference. Significant amount of the drafts, however, never
came in force because they were not ratified by the required number of states. Despite the
fact, they are of considerable importance in the field of the PIL as they served as a source
of inspiration to later achievements.
2
Traditional methods of the PIL are regulations via (I) conflict-of-law rules and (ii) directly
applicable norms (treaties).
there
are two
modes
for
the unification
of
private
international law:
1.
2.
They are usually overall named as lex mercatoria or transnational law commercial law.
ROZEHNALOV, N., op. cit. 6, p. 70. For closer explanation see ROZEHNALOV, N.,
Transnacionln prvo mezinrodnho obchodu. Brno, 1994.
The following are the other conventions dealing with unification of private
international law.
appointed
by
the
Governing
Council
on
the
The drafts prepared by the Institute formed the basis of conventions which
have been adopted by diplomatic conferences, the most notable being the
Convention relating to a Uniform Law on the International Sale of Goods
(Corporeal Movables) and the Convention relating to a Uniform Law on the
Formation of Contracts for the International Sale of Goods (Corporeal
Movables). They were concluded at the Diplomatic Conference on the
Unification of Law governing the International Sale of Goods convened by the
Government of the Netherlands and held at The Hague in April 1964. Draft
conventions of the Rome Institute relating to topics other than the sale of
goods likely to be considered by diplomatic conferences in 1967 include;
i.
ii.
iii.
carriage of goods;
The draft convention on the contract of forwarding agency in the
international carriage of goods;
Apart from these proposals for the unification of particular topics of private
law, the Rome Institute is engaged in research into ways and means of
advancing the task of unification. It is, in particular preparing two studies:
arrangements
and
other
items.
It
also
sponsors
periodic
Convention
on
International
Commercial
Arbitration.
initiatives include:
Other
The United Nations has also instituted specialized agencies in the form of
of
the
individual
states.
Thus
they
have
necessarily
Fast forward to the present era with the establishment of the EU, one of the
overarching goals of the European Union is the harmonization of private law
as
part
of
the
development
of
the
internal
market.
The
acquis
communautaire refers to the body of European Union (EU) law that must
be adopted by each Member State upon joining the European Union.
significant part of the acquis includes uniform commercial law, which is a tool
in developing the internal market. The harmonization of contract law among
EU member states has occurred thus far by the passage of directives and
regulations which are the two types of EU legislations.
In
the
process
of
so-called
Europeanization
the
European
private
international law (further EPIL) was formed within the European law
(sometimes narrowed to the EC law) and under the notion of Europeanization
there may have been a shift of competences from the intrastate to the
European level. Contrary to Private international law the EPIL is not part of
any national legal system, but the international. It might be seen as a set of
unified conflict-of-law rules on a higher than national level, regulating
relations with a European element. Thus it bridges the differences between
national legal orders for the needs of the European market.
The attention to procedural issues of the EPIL international jurisdiction,
recognition and enforcement of judgments was paid already in the turn of
1960s and 1970s. The question of unification of conflict-of-law rules was
brought into play only in 1980s. On its ground and on the ground of the EU,
number of crucial EPIL documents have been drafted, the most notable being
the Brussels Convention on jurisdiction and the enforcement of judgments in
civil and commercial matters (1968) and the Convention on the Service in
the EU Member States of Judicial and Extra-Judicial Documents in Civil and
Commercial Matters (1997).
The Convention on the Law Applicable to the Contractual Obligations (known
as Rome Convention of 1980) is considered to be the principal document of
the EPIL. However, the part dealing with the non-contractual obligations,
nonetheless, never came in force and it was only in late 1990s that the
European Group for Private International Law (EGPIL) drafted a proposal for a
convention on the law applicable to non-contractual obligations. Although
this proposal was never ratified, it stood as a cornerstone for further
unification work. After 1999, when the Treaty of Amsterdam came in force,
the secondary Community instruments (mainly directives, harmonizing the
law of the Member States, but lately regulations as well) have started to play
more important role in the process of unification of the PIL. The EC secondary
law assures the unified application of the law in the European area of justice.
The Amsterdam Treaty of 1997 which came into force in 1999 vested
legislative competence in the European Community (EC) in the areas of
international civil procedure and private international law by transferring the
Title on visas, asylum, immigration and other policies related to free
movement of persons into the Treaty on European Community (TEC). In
2009, the Lisbon Treaties, the Treaty on European Union (TEU) and the
Functioning of the European Union (TFEU) have inherited this competence
and even enlarged it to a certain degree.
Together they cover almost all major issues of international civil procedure
and they include a wide array of legal issues. They include:
II
Regulation 6,
unified
6
7
the
Brussels
Convention
unifying
jurisdiction
and
the
matters.
Regulation (EC) No 1206/2001 set in force unified rules on cooperation
in the taking of evidence, replacing the Hague Convention among
Member States.
Regulation (EC) No 1896/2006 created a European order for payment
Within only one year significant parts of the private international law relevant
to international business transactions have been unified. Many regulations
covering other areas of private international law will follow. Future
developments include:
related issues hence this attempt would get stuck in a half way between the
unification and existing fragmented regulation in the national legal orders
Some may calculate that deliberate repudiation of their obligations, with the
risk of litigation, is preferable to adhering to a newly onerous bargain. With
credit and liquidity reduced many litigants may have a heightened sensitivity
to the cost of funding litigation and to the risk of losing in court. But
economic adversity may also alter the balance of risk, making the cost of
litigation seem more attractive than the cost of performance. Also, excuses
for non-performance, such as incapacity, mistake, fraud, duress or illegality,
thus become important, with inevitable conflicts implications in cross-border
transactions. Disputes about the identity of the applicable law are the
consequence. But this will often be contractually agreed, forcing a defaulting
party to argue that the contract is unenforceable by reference to another
law. As cross-border litigation increases, so does reliance on overriding rules
and public policy. A consequence may be more reliance on overriding
prohibitions against onerous interest provisions or exemption clauses,
coupled perhaps with pre-emptive litigation in courts where such prohibitions
exist.9
Just as economic adversity encourages default, so it precipitates collateral
litigation against commercial partners, such as guarantors, insurers, and
reinsurers,
offering
further
potential
for
cross-border
litigation.
Such
in
recent
years
by
the
possibility
of
third
party
as
interpreted
in
such
recent
cases
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