Origin and Development of Private International Law

Introduction:

Private International law is a distinct part of law which has developed as a system
very recently. Judicial decisions have contributed largely in shaping this branch of
law but it is also influenced by continental thoughts. It is necessary to focus on its
historical development before any serious discussion on Private International Law
issues.

Definition of Private International Law:

Private international law is a set of rules of procedural law that regulates the
relationships between physical and judicial persons of different nationalities. It
determines which legal system and the law of which jurisdiction will apply to a legal
dispute among private individuals involving a foreign element. It is also called as
conflict of laws. The three branches of private international law are jurisdiction,
choice of law, and foreign judgments.1

According to Cheshire- ―Private international law is that part of law which

comes into play when the issue before the court affects some fact, event or transaction
that is so closely connected with a foreign system of law as to necessitate recourse to
that system‖.

According to Baty- ―Private international law is the rules voluntarily chosen

by a given state for the decision of cases which have a foreign complexion‖.

So, Private international law (often referred to as "conflict of laws") governs

the choice of law to apply when there are conflicts in the domestic law of different
nations related to private transactions between those nations. Private international law
deals with a variety of topics such as contracts, marriage and divorce, jurisdiction,
recognition of judgments, child adoption and abduction, and the like.
1
http://definitions.uslegal.com/i/international-private-law/

1
Nature 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
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 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.

Private international law is a branch of municipal law. PIL is essentially a system of

Indicating choice, choice of jurisdiction, choice of law and recognition of a foreign
judgment.

Private international law contains the following basic nature:

1) its subject matter always includes a foreign element;

2) one of its prime nature is the pursuit and application of the appropriate legal
system and

3) jurists have been more influential in this branch of the law than is typical with
other legal subjects.

Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as 1963 in R.
Vishwanathan v. Syed Abdul Wajid’ gives an enlightening explanation of what Private
International Law is ―It is not the law governing relations between States. It is simply
a branch of the Civil Law of the State evolved to do justice between litigating parties
in respect of transactions or personal status involving a foreign element. Its rules in
the very nature of things differ from State to State, but by the comity of nations,
certain rules have been recognised as common to civilized jurisdictions.2 Through part

2
Part I Introduction, Ch.1 Definition, Nature and Scope of Private International Law, James J.
Fawcett, Janeen M Carruthers Edited By: Sir Peter North (Consultant Editor).

2
of the judicial system of each State, these common rules have been adopted to decide
disputes involving a foreign element and enforce foreign judgment, often as a result of
International Conventions‖.

A Division Bench of the Bombay High Court in a case of divorce involving two
conflicting legal systems, Monica Variato v. Thomas Varia stated that the principles
of Private International Law are not universal. They vary from State to State. What
may be applicable in one State may not be applicable in another State‖ .
In 1952, Indian & General investment Trust Ltd. v. Raja of Kholikhote, the High
Court devoted substantial part of the judgment to general principles of Private
International Law:— ―The name ―Private International Law‖ is rather unfortunate
because it is difficult to conceive of a law which is both International and at the same
time private. It is called ―private‖ inasmuch as it deals with the legal relations of
individuals and not of States; it is ―International‖, inasmuch as its rules are enforced
by Courts, and in that respect it is a branch of the ordinary law of the land.

Is Private International Law is the distinct part of Law?

Private international law is a separate and distinct unit as much as the law of tort or of
contract, but possesses the unity , not because it deals with a particular topic but
because it is always concerned with one or more of three questions namely,
jurisdiction, choice of law and recognition of foreign judgment.

Private international law does not give a final decision. It is comparable with a
railway inquiry room. By approaching the inquiry room you can only ascertain the
platform from which a particular train leaves. It is the train that reaches you to your
destination not the enquiry room.3

We can‘t say it as a full-fledged law. The main aim of Private International Law is the
desire of the courts to do justice. It is quite distinct than law. It is essentially a system

3
https://www.linkedin.com/pulse/private-international-law-salauddin-saimum-5989072056078135296

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of indicating choice, choice of jurisdiction, choice of law and rules for recognition
and enforcement of foreign judgment of a foreign court.

Private International law only decide the rule of choice and then indicate the
convenient law that is to be applied. It does not contains the basic feature of law.
There is no conclusiveness and imperative obligation to take a single and particular
view in Private international law like the real law. The degree of boundness,
obligation is somehow very low in case of Private international law. The very purpose
of private international law is to avoid conflicts of law.

Private international law is regarded as law and the reason somehow is that it is a part
of municipal law of a particular state. It varies from state to state. States legislative
action is essential for the evolution of Private International law.4

So we may say that Private International law is a distinct part of law which
meanwhile contain the notion of law and justice. Somehow the essence of law is
present in PIL though it is very distinctive one.

Distinction between public international law and private international law:

As to consent:
Public international law based on the consent of the state. Private international law is
not based on the consent of the states.

As to object:
Public international law regulates relationship of states inter se and determines rights
and duties of the subject states at international sphere. Private international law
determines as to which law will apply of two conflicting in a particular case having
foreign element.

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Private International Law by Salauddin Saimum

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As to Conflict of Law: Public international law does not involve in conflicts of laws.
Private international law involves in the conflicts of laws.

As to nature: Public international is same for all the states. Private international may
be different in various states.

As to sources:
Public international law has its sources in treaties, custom etc. etc. Private
international law has its sources in the legislation of the individual state to which the
litigant belongs.

As to application:
Public international law applicable to criminal as well as civil cases. Private
international law is applicable to civil cases only, which present themselves for
accession of courts of the state.

As to Subject: Public international law deals with the states. Private international law
deals with the individuals.

As to Municipal Law:
Public international law is not part of municipal law but Private International law is a
part of municipal law

As to jurisdiction
Public international law does not involves determination on the question of
determination. Private international law determines court which will have jurisdiction
to decided issue in question.

As to scope: Public international law has wider scope. it is of universe

character.Private international law has lessor scope.5

5
http://study.com/academy/lesson/public-law-vs-private-law-definitions-and-differences.html/

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Utility of Private International Law

 Private international law explores cross-border legal relationships. The

discipline investigates core legal issues pertaining to international
communication, such as the criteria for resolving conflicts of law arising under
contracts.

 Teaching and research in private international law comprise various areas,

such as the international law of obligations, international family and
inheritance law, international property law and international civil procedure
law. Other issues examined relate to personal legal status as well as the theory,
concepts and methods of private international law.

 Private international law plays a vital role to develop the existing legal
systems of the different states. It helps to understand various legal orders all
over the world.

 By the proper recognition and enforcement of foreign judgement, PIL broaden

the domain of states legal arena.

 Private International law helps to develop international legislation and

international law association.

 Private international law develops the notion of international harmony of

decisions.

 Private International law ensures the stability with regard to cross-border legal
relationships.6

6
Private International Law by Salauddin Saimum/ https://www.linkedin.com/pulse/private
international-law-salauddin-saimum-5989072056078135296

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Origin and Development of Private International Law:

Private International Law can be developed only when law has become territorial in
application. In ancient times when law was largely personal in application, then the
necessity of Private International Law was not felt. Development of private
international law in the continental countries (i.e. Italy, Germany, Netherlands, and
France etc.) is mainly byproduct of juristic writings. Hence it is explained by some
theories.

a. Rome:

The contribution of Roman legal system towards the evolution of Private International
Law is the rules of Origo and Domicilum i. e. law of natives and alien. A person had
his Origo in the place to which his father or mother (if he is illegitimate) belonged.
Domicilium meant the relation between a man and the urban community which he had
chosen for his permanent residence.

Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had
jurisdiction to deal with multi-state cases. The officers of these specialized tribunals
were known as the praetor peregrini. The Praetor peregrini did not select a
jurisdiction whose rules of law should apply. Instead, they "applied" the jus gentium.
The jus gentium was a flexible and loosely-defined body of law based on international
norms. Thus the praetor peregrini essentially created new substantive law for each
case. Today, this is called a "substantive" solution to the choice-of-law issue.7

b. After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule
of law to which the defendant belonged must prevail. So, there was no scope for the
growth of Private International Law.

7
Greek Law Digest (http://www.greeklawdigest.gr/topics/judicial-system/item/132-private-
international-law-issues-applicable-law-in-case-of-dispute-arising-out-of-legal-relationship-with-
international-element-rome-i-regulation-593-2008)

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c. 11th and 12th Centuries:

Gradual development of feudalism in North and growth of Italian cities in the South,
in 11th and 12th century gave rise to the territorial nature of law. A large number of
cities like Florence, Bologna, Milan and Padua emerged. Each of these cities was
subject to different system of laws which were applicable to the residents therein.8

d. 13th to 18th Century:

With the development of commerce and transaction dispute arose between individuals
of two cities of Italy. Jurists tried to solve those problems by focusing on rules of
Roman law, who are known as Glossators. However, the early Glossators were not so
much successful to this end, but the post-Glossators in 13th century were. The post
Glossators discovered the Statute theory. According to this theory law can be divided
into two categories: I. Real Statute and II. Personal Statute
The main purpose of real statute is to regulate things and the purpose of personal
statute is to deal about personal matters. Real statutes were considered essentially as
territorial while personal statutes were personal. The law of person would be
applicable unless such personal law was opposed to the ―Public Order‖ of the city.
Bartolus was a greatest scholar amongst other during this period. However, this theory
was not perfect as classification of ‗real‘ and ‗personal‘ was not unanimous amongst
cities and the definition of ‗public order‘ was not clear.

e. France:
Statute theory was carried to France in 16th Century. It was refined and developed
there by the jurists. The famous jurists of this time are Dumoulin and D‘Argentre. By
the end of 16th century with the fall of feudalism and rise of sovereign national state,
the concept of national statute developed in Europe. Then the territorial nature of law
came to be widely accepted.9

8
Medieval Legal History
9
The French draft on Private International Law and the French Convention on Codification of Private
International Law by Professor Yvon Loussouan.

8
f. Netherlands: Development by Huber in 17th Century

Dutch jurists specially, Max Huber refined statute theory. Huber formulated three
maxims of Private International Law:
 The laws of the state have force only within the territorial limits of the
sovereignty of the state.
 All persons within such territory are bound by the laws of the
sovereign.
 By reason of comity, every sovereign admits that the consequences of
the operation of a law in a foreign country shall be recognized by the
courts of the country unless such consequences will not prejudice the
subjects of the sovereign by whom its recognition is sought.
The formulations of Max Huber have been named as theory of acquired rights. And
these formulations have practical influence on the development of conflict of laws in
England even today. 10

g. Germany: Development by Von Savigny in the 19th Century:

German Jurist Von Savigny made a definite break from the previous approaches to
the subject and formulated a new theory of Private International Law. Savigny has
rejected both the statute theory and territorial theory of Private International Law.
Savigny‘s formulations can be briefly stated as follows:

 Each legal relation has its natural seat in a particular local law and it is
that law which must be applied when it differs from the law of the
court. This is the ‗natural law‘ concept of law predominantly
considered to be the connecting factor of modern Private International
Law.
 There are rules of private international law which are universal and
common to all legal systems.11

10
Max Huber‘s Sociological Approach to International Law Revisited
11
Public and Private international Law: German Views on Global Issues, Journal of Private
International Law, P-137

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The second proposition of Savigny has been subjected to criticism because it is not
possible that Private International Law of different countries entails universalized
characteristics. But his contention on the natural seat of each legal relation made to
the rules of Private International Law is more scientific and accurate.

h. Origin and Development of Private International Law in England:

The comparative geographic isolation of England from the continent was an obstacle
in shaping private international law in UK. It is true that in England there were two
sets of legal rules one was equity administered by chancery courts and another was
common law administered by common law courts. But this conflict should not be
confused with the conflict of choices of law. Equity and Common law were two sets
of legal rules applicable in the same country.

When Scotland was unified with England a new situation arose. England was
influenced by Anglo-Saxon Law while Scotland was influenced by Roman law. Then
there were some obvious conflict of laws with the unification of Scotland and
England. The problem of this kind was firstly arisen in Calvin’s Case.12 In that case
the English courts had to recognize and apply the laws of Scotland. From that time
Private International law in England has been developed by judicial decisions from
case to case and situation to situation.

The first treatise on Conflict of Laws was written by famous jurist Joseph Story
(1779-1845).13 Westlake and Dicey followed him.14 The main concern of their
writings is attaining justice in a given case involving foreign element. To be able to do
justice in a case they have formulated the Rules of Conflict of Laws.

12
Coke, Sir Edward. "Calvin's Case, or the Case of the Postnati.". Liberty Fund. Retrieved May
13, 2012. Ed.: ... someone who was born after James had taken the new [English] throne, who were
called the post-nati, a phrase by which the case is often known.
13
Commentaries on the Conflict of Laws (1834) by Joseph Story
14
Dicey and the Development of English Private International Law by G.W Bartholomew

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i. 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,15 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.16 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 judgments17 and the Rome Convention concerning
applicable law.18 The Brussels Convention has, incidentally, been copied by the
Lugano Convention,19 thus enlarging the number of States party to the Convention
with some non EU-Member States.20 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 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.

15
See, e.g., Basedow 2000, pp. 687–708; Kuipers 2012, pp. 6–27; Stone 2010. The (increasing)
importance of European law has also been the subject of study at the Hague Academy a number of the
times during the past years: see, e.g., Borrás 2005, pp. 313–536; Fallon 1995, pp. 8–282; Struycken
1992, pp. 256–383.
16
Treaty of Amsterdam, OJ 1997, C 310. With this Treaty the responsibility for creating legislation
with regard to international judicial co-operation in civil matters was shifted from the third pillar to the
first pillar, i.e. the Community legislator.
17
The Brussels Convention on jurisdiction and the enforcement of foreign judgments in civil and
commercial matters, 27 September 1968, OJ 1998, C 27/1 (consolidated version following the
accession of Austria, Finland, and Sweden).
18
The Rome Convention on the law applicable to contractual obligations, OJ 1998, C27/34
(consolidated version following the accession of Austria, Finland, and Sweden).
19
Lugano Convention, 24 October 1988, OJ 1988, L 319/9. The Lugano Convention has since been
replaced by a new Lugano Convention. See OJ 2007, L 399/1.
20
These States are the Member States to the European Free Trade Association: Iceland, Norway, and
Switzerland.

11
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. The EU legislator has also delved
into the area of family law with the Brussels II bis Regulation and the Rome III
Regulation.21

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.22 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.

21
The Commission became so concerned that it even openly discussed sanctions for states that did not
approve amendments. See the answer by Commissioner Monti to the European Parliament, OJ 1997,
C83/85.
22
Meeusen 2007, pp. 287–305.

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j.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, international legal cooperation
and litigation, and international commercial law.23 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.24

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.25

k. 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

23
See for an overview of the conventions the website of the Hague Conference [ www.hcch.net].
24
Particularly, the United Nations Commission on International Trade Law (UNCITRAL) has drafted
some important conventions. The number of conventions concerning private international law
concluded by the UN pales in comparison to the number concluded by Hague Conference.
25
See, e.g., Articles 69–72 of the Brussels I Regulation (supra n. 22). See with regard to the
concurrence of international and bilateral treaties on private international law, e.g., de Boer 2010, pp.
308–315.

13
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.26

Theories of Private International Law:

I. Statutory Theory: Personal law may be applied if it is not opposed to

public policy or public order.

II. International Theory: There are rules of conflict of laws which are
universal and common to various legal systems of the world.

III. The Territorial or Acquired Rights Theory: Courts of sovereign state do

not apply foreign law but merely recognize the consequences of the
operation of a foreign law. This theory tries to reconcile the territoriality of
a law and the need for private international law. Dr. Cheshire has
vehemently criticized this theory as being, ‗unnecessary‘, ‗untrue‘, and
‗unhelpful‘.

IV. Local Law theory: This theory is a slight variation from territorial theory.
The gist of this theory is that the court recognizes and enforces a local right
that is created by its own law. But as the dispute in question has a foreign
element the court would necessarily apply the rule of the forum that would
be applied in the case of a purely domestic dispute. But for reasons of social
expedience and practical convenience it takes into account the laws of a

26
See, e.g., Dicey et al. 2012, pp. 10–11.

14
 foreign country in which the decisive facts have occurred. Cheshire has
observed that this theory is a ‗sterile truism‘. Sterile because it affords no
basis for the development of a system of Private International Law.

V. The Theory of Justice: The approach of English courts to private

international law is pragmatic and ethical. It has sociological, ethical and
legal aspects towards the end of justice. According to Dr. Graveson, the
basis of Public International Law is sociologically, in the international need
for fair treatment in the private transactions of individuals, ethically, in the
desire of English courts to do justice; and legally, in the obligation of their
oath in office. In essence the rules of Private International Law in England
are made from the precedents with the ultimate view of doing justice.27

Conclusion:

It is clear from the above discussion that like all living law Private international law is
not static; it is a separate and distinct unit of law and the development of this law is
not so far developed and fulfilled with the needs of time. It is quite obvious that-
―New times bring more varied problems‖ and the area of Private international law is
one of the area where novel concepts and new directions will have to be fashioned to
cope with problems being posed under new circumstances. So, it is highly recommend
that private international law must be continuously developed by revising its contents,
expansion of scope to meet with the changing needs of time.

27
Origin and development of Private International law by Masum Billah, P-4

15
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7) .Dr. Hajredin Kuci, Dr. Asllan Bila Pergjithshme, Prishtine 2008, Unive

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