DIFFERENT PERCEPTION TOWARDS PRIVATE INTERNATIONAL LAW:

THEORITICAL PERCEPTIVE

Submitted by:

Dhinesh V (17040142007)

[BBA LLB HONS]

[2017-2022]

Submitted to:

Prof. Rahul Mishra

Course Teacher

Alliance school of law

Alliance University, Bangalore

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ABSTRACT

PRIVATE INTERNATIONAL LAW is neither an inter-state nor an international law.

Because it is hybrid in nature which also makes it more dynamic to deal with. Private
International Law is matter of relations which has to deal across the national borders.
But the subject matters are different from the Public international law. For example
family law matters, recognition of judgements, torts, intellectual property, child
adoption and abduction, contracts etc.

Its very name and the doubts arising there from indicate that fighting contradictions is
typical of private international law. The task of defining the object and character of this
branch of law, which may be viewed from the systematic aspect as a transitional and
secondary phenomenon, is not, of course, a simple matter and the results we arrive at
will probably not be accepted without reservation

Rules of Private International Law can be seen as key factors in achieving access to
remedies can access to justice: PIL rules act like hinges that allow doors - granting
access to a specific court and to a specific legal norm - to be opened or to be kept closed;
thus, as PIL deals with issues of international jurisdiction and applicable law, PIL rules
are of paramount importance in determining access to a specific court and access to a
specific legal norm.

The references with the theoretical writings on private international law are far more
prevalent to court discussions by court of any other field of law. In Private international
laws the difficulties in solving a wide range of issues and gaps in legislation of every
nation is so great that in PIL rather than any other field of law, the study of the work of
legal theorists is needed not only theoretically but also practically.
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TABLE OF CONTENTS

CONTENTS PAGE NO.

Introduction

Introduction ---------------------------------------------------------- 3

Research Problem -------------------------------------------------- 3

Existing Legal Situation -------------------------------------------- 3

Literature Review ---------------------------------------------------- 3

Scope and Objective ------------------------------------------------- 4

Methodology ----------------------------------------------------------- 4

Chapter -2 or Hinge function of PIL

2.1. Access to Justice

2.1.1. Access to remedies

Chapter – 3

3.HISTORY OF PRIVATE INTERNATIONAL LAW ALONG WITH MUNICIPAL LAW

THEORISTS VIEW WITH REFERENCE TO THE BELGIUM, DUTCH AND RUSSIAN THEORIES

4. Chapter – 4 or (RESEARCH PROBLEM)

5. Conclusion

6. Bibliography
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INTRODUCTION

1.1 INTRODUCTION

Private international law deals with the relations across the national borders. Private
international law is the body of conventions, model laws, national laws, legal guides, and
other documents and instruments that regulate private relationships across national borders.
Private international law has a dualistic character, balancing international consensus with
domestic recognition and implementation, as well as balancing sovereign actions with those
of the private sector. United States domestic law’s nearest equivalent to private international
law would be interstate “conflict of laws” or “choice of laws.”

1.2 RESEARCH PROBLEM

As we have already pointed out, the question of the object and character of private
international law, and the question of the place it occupies in the system of law, has not yet
been satisfactorily settled.

1.3 EXISTING LEGAL SITUATION

PRIVATE INTERNATIONAL LAW is considered as “ Hinge” in the context of access to

remedies and access to justice. This also gives the PIL access of judges and jurisdiction.
Some rules and issues of (mainly) European PIL - both jurisdiction and applicable law - that
deserve attention from this perspective will be highlighted in an introductory way.

1.4 LITERATURE REVIEW

Private international law is a branch of law that has undergone intensive development since
the beginning of the last century and has considerably changed in the recent period, a branch
whose connections and scope are not stable and fixed as compared with such rather firmly
established and defined. Since Savigny's days we have met in practically all systems and
textbooks with assertions, originated and repeated doubtlessly under the impact of Kant's
philosophy that the proper task of the law of conflict of laws is to create a harmonious and
identical solution of conflict problems in all states.

1.5 METHODOLOGY
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For the purpose of research problem, the researcher has opted doctrinal research
methodology. This research paper uses the secondary sources data for its research purpose.

1.6 SCOPE AND OBJECTIVES

Private International Law is matter of relations which has to deal across the national borders.
But the subject matters are different from the Public international law. For example family
law matters, recognition of judgements, torts, intellectual property, child adoption and
abduction, contracts etc

The references with the theoretical writings on private international law are far more
prevalent to court discussions by court of any other field of law. In Private international laws
the difficulties in solving a wide range of issues and gaps in legislation of every nation is so
great that in PIL rather than any other field of law, the study of the work of legal theorists is
needed not only theoretically but also practically

2. HINGE FUNCTION OF PRIVATE INTERNATIONAL LAW

The reason why PIL acts a hinge is because it basically has the possible reasons to violate the
corporate human rights and The Hinge Function and Conductivity of PIL in Implementing
Human Rights in Civil Proceedings in Europe.

i) Access to Remedies
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ii) Access to justice

2.1 Access to Justice

‘Access to justice’ happens to be a key concept in the debate on this issue: in the reports by
John Ruggie, ‘access to justice’ is a key element; various aspects of access to justice are
highlighted in this context1. It follows from the foregoing that PIL rules, too, are a key factor
in achieving access to justice in this field. In his ‘Guiding Principles on Business and Human
Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’,
Ruggie addresses the responsibility of States for issuing suitable situations and legislation and
‘access to remedies’ and it may be well argued that PIL legislation should be examined in this
context, too. Moreover, in recent years, the European institutions have defined access to
justice to be one of the central objectives of the broader ongoing process of Europeanization1
of PIL: PIL is defined as a policy instrument to achieve better access to justice and a true
Area of Freedom, Security and Justice 2. In short, given the importance attached to access to
justice in both Ruggie’s reports and in PIL itself, it is appropriate to analyse the access to
justice content of PIL rules in the context of corporate human rights violations. Below, the
analysis of the access to justice content of PIL rules that are important in this context will be
divided into two parts, based on the two classical PIL issues − two key stages relating to
litigation.

Every nation's legal system mirrors its general public's qualities. Therefore, national
laws and the structure of domestic legal systems change impressively from nation to
nation. All things considered, numerous sorts of legal circumstances or occasions, for
example, marriage, decedents' estates, torts, and business transactions, regularly are
not restricted to a solitary nation or even to a solitary jurisdiction inside a nation. The
courts of each included nation may guarantee jurisdiction over the issue, and the laws of
each included nation might be appropriate in specific situations. At the point when such

1
Special Representative of the United Nations Secretary-General on Business and Human Rights. See
Ruggie’s ‘Protect, Respect and Remedy’ Framework 2002. On 21 March 2011, the ‘Guiding Principles’
were issued. See www.business-humanrights.org/SpecialRepPortal/Home.
2
This concerns the process where an increasing number of PIL rules are determined at the European
level (cf. supra n. 3)
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conflicts, or contrasts, exist, strategies should be set up to determine them; the term
conflict of laws (once in a while additionally conflicts or conflicts law) portrays the
assortment of law of every nation or express that is intended to determine issues
emerging from the contrasts between legal systems. Conflict of laws is a term utilized
essentially in the US, Canada, and, progressively, the Assembled Realm. In most
different nations (and verifiably in the Assembled Realm), the term private
international law is utilized. The last term gets from the common law qualification
among private and open law, whereby private law tends to the legal connections
between and among people, enterprises, and even the state in its relations with people
and companies when it isn't acting in an administrative limit (with regards to model, in
the finish of agreements), while open law manages the law overseeing state
organizations just as the last's legislative—e.g., administrative—relations with private
gatherings. Private international law along these lines accentuates the contrasts between
national legal systems: in spite of the fact that the term private international law may
suitably depict the topic, it might likewise delude by proposing that there is an
international assortment of rules to connect contrasts between legal systems. This is
decidedly not the situation. The term conflict of laws alludes essentially to decides that
are exclusively national in root and are expressly not part of international law (aside
from to the extent that nations have closed bargains concerning them).3

Conflicts law must address three chief inquiries. To begin with, when a legal issue
addresses more than one nation, it must be resolved which court has jurisdiction to
mediate the issue. Second, when a court has taken jurisdiction, it must choose what law
it ought to apply to the inquiry before it. The principles administering the court may
guide it to apply its own law or require the use of the law of another nation. Third,
expecting that the court at last renders a judgment for the offended party, conflicts law
must address the authorization of the judgment. If the respondent has inadequate
resources locally, acknowledgment and authorization of the judgment must be looked
for in a nation where resources do exist.

3
The Temporal Scope of the Rome II Regulation after Homawoo”, (2013) European Review of Private
Law, p. 289
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3.2 HISTORY OF PRIVATE INTERNATIONAL LAW ALONG WITH MUNICIPAL

LAW – THEORISTS VIEW WITH REFERENCE TO THE BELGIUM, DUTCH AND
RUSSIAN THEORIES

Russian legal literature of the 20th century, it is mentioned that PIL originated “in the 13th
century, first as a theory, more specifically, the theory of statues and was further developed
by legal scholars, an opinion courts have adopted” Over the course of 500 years, the theory of
statues was the only doctrine of PIL, which can be considered the first attempt at a scientific
formulation and systemization of the fundamentals of PIL”. Rejection of this theory did not
occur until the 19th century through the writings of scholars, but almost immediately a school
of “neo-statutists” arose whose views were largely based on the classic theory of statues.
Furthermore, the theory of statues over the course of the 19 th and parts of the 20th centuries
was widely accepted as the basis of literature and significantly influenced the development of
the legislation of private international law4. “Mention of personal or real statues and even the
use of such terminology is inevitable, as Phillimore among others has confessed, having
understood the serious shortcomings of past statute theory; and sometimes volens-nolens and
Bar himself, the most powerful opponents against the remnants of medieval private
international law doctrine fall back on the usage of statue terminology”.

The founders of the theory of statues, Italian and French lawyers of the XIII-XIV centuries,
adapted Roman texts to the needs of contemporary society, worked out general rules, which
continue to live on in the modern sense of justice, and prepared contemporaneous conflict
rules. Ukrainian literature mentions that the theory of statues marked the beginning of private
international law for three national schools of thought; the Italian school headed by Bartolus
de Saxoferrato, which dominated until the 16th century; the French school, which arose from
the influence of the Italian school; and the Dutch school 5, which proclaimed the principle of
territoriality from the end of the 17th century, the effect of which was softened by the theory
of comity.vi However, it seems that not only the Italian, French and Dutch schools of thought
are identifiable in the theory of statues. The German school and Belgian doctrine of realism,
formulated by Belgian and Dutch scientists in the XVI century also offer valuable
contributions to the theory of statues. This article examines the Belgian realism theory
through the works of its founders Nicolas Everhard, Pieter Peck, and Johannes a Sande6.

The first notions about how to resolve conflict of laws were accepted by Belgian and Dutch
lawyers from Italy and France. During the 12th-14th centuries, many Dutch students enrolled
in Italian and French universities taking back to their homeland an “appendage” of Roman
4
Bertrand Ancel,7 Histoire du droit international privé, ed. Université Panthéon-Assas (Paris II), Paris 2008, p. 84.
5
Laurent, Droit civil international (supra, n. 15), p.  43

6
See: Joseph Story. Commentaries on the Conflict of laws, foreign and domestic,  ed. Hilliard, Gray,
and Company, Boston 1834, p. 249.
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law, the theory of statues, which was formulated in the writings of Pierre2 de Belleperche,
Johannes Faber, Bartolus de Saxoferrato and Baldus de Ubaldis The theory of statues was
taught in Louvain in 1425, when the first national university was founded, as well as in
Bologna, Padua or Toulouse. Since that time, the theory of statues can be found throughout
the work of Belgian and Dutch authors. In the County of Flanders, based on the idea of the
universality of Roman law, Italian and French Bartolists initially recognized the
extraterritorial effect of personal statues as unconditional. The unconditional priority of
personal law presents itself most of all within inheritance law. 7The integrity principle of
inheritance and the subordination of all its questions to lex personalis were fixed as law for
example, in Art. 25 of the Charter of the City of Ypres (1170-1174) providing that: “All
property of deceased bourgeoisie from the city of Ypres, held at the time of death, all of his
estate and movable property shall be subject to law and the custom of the city where he
would have been.” Court practice at the time also followed this approach closely, confirming,
at least partially the decisions of the aldermen of Saint Omer (1321 and 1333). “Real estate of
a citizen of Saint Omer should be divided according to the customs of Saint Omer, even if it
is located in another jurisdiction… just as the property of a citizen of Gann, even if he is an
illegitimate child, should be divided according to the customs of Gan”. 

The integrity of inheritance completely depends on the personal law. By a resolution of the
Council of the County of Flanders (1375) any property “must be divided according to the
home custom of the deceased, in accordance with the common law of the country”.  Lex rei
sitae was not even applied in relation to inheritance law for children out of wedlock. The
tendency of the Flemish authorities to personalize all laws was first noted by an obscure jurist
from Bruges at the end of the 16th century, Jacob de Cort, who wrote that the home law of the
deceased should govern the entire inheritance, even if the property is situated elsewhere. In
this regard, the “special theory of the Flemish as the citadel of personalization of the law is
often mentioned in literature. This binding of the most recent domicile to the law
encompassing all inheritance property was a unique element of city law, functioning in a
special “commonwealth” of Flemish cities. “The Flemish citadel of personalization of the
law” remained for the whole of the middle Ages but outside of the county of Flanders, it was

7
See: Laurent, Droit civil international (supra,  n. 15), p. 437.
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short lived. In the middle Ages, the mentality of the Dutch provinces could be described as
dualistic, on one hand closely resembling the provinces of Northern Italy and on the other
hand, exuding a striking difference between the two. In the Netherlands (as in Lombardy)
industry, trade, and statutory law were quite developed for the time leading to the need to
develop specific rules to resolve conflicts between the customs of different cities.

In the 16th and 17th centuries, the Netherlands economically blossomed and as a consequence
especially needed to develop regulation over private international relations. In political terms,
these lands were not as free as the Italian republics; their dependence on the kings of Spain
was incomparably greater than that which formally subjected Italy to the emperors of the
Holy Roman Empire of the German Nation8. The Netherlands was positioned within the
province as an appendage of a larger state under the rule of consistently absent foreign
princes replacing each other century after century. At the same time, Dutch cities were
imbued with the spirit of extreme individualism and demonstrated a clear tendency towards
feudal sovereignty of their customs. Among other elements of legal autonomy, the Dutch
provinces enjoyed significant privileges and benefits. The Counties of Flanders and Zeeland,
the Duchy of Brabant, the Lordship of Frisia, Utrecht, and Southern Holland, i.e. all of the
northern provinces of which became the Netherlands and the southern provinces, current day
Belgium, had their own customs, with roots dating back centuries. The provinces held onto
their privileges as a symbol of local freedom and made vigorous efforts to preserve them. The
sovereignty of the provinces was finally legally recognized in the “Close Union,” signed on
23 January 1679, in Utrecht by the representatives of the Dutch Republic. The first article of
the treaty declared that “although the provinces have been unified, to ensure that they remain
unified for centuries to come as if they were one province, each province and city shall retain
its privileges, freedoms, and customs”.

4. RESEARCH QUESTION

4.1 Why the substance of Private International law is neither international nor rather inter
state law regarding jurisdiction?

Much juristic ink has flowed in an attempt by international law scholars to dissipate the fog
beclouding the true relationship between international law and the domestic jurisdiction of

8
As Belgian scholar, Laurent wrote at the end of the 19 th century, “even today a Flemish from Bruges is
not sure of the fraternal bonds with a Flemish from Ghent.” See: Francois Laurent. 8 Droit civil
international, ed. Bruylant-Christophe & ce, Bruxelles 1880, T. I, p. 340.
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state. The difficulty in attaining finality of opinion in this area of study perhaps lies with fact
that the factual background to international law is different from that of municipal law.
Indeed, international law has developed in a form which is different from that of municipal
law. It is instructive that domestic legal system is characterized by the presence (within its
domestic legal order) of a legislature, courts with compulsory jurisdiction and centrally
organized sanctions.

The outcome of the prolonged reflections by writers and jurists on this debate are the various
illuminating theories each seeking to place the relationship between international law and
municipal law in proper perspective. Thus, the theory of Monism, Dualism, Incorporation and
Transformation emerged to elucidate with varying degree of success the subject matter under
study. Implicit in each theory, is the recognition that interaction between international and
municipal law must take place within the context of a clear legal framework. Interestingly,
the various theorists who formulated these theories espoused different persuasive basis upon
which they sought to justify their views. However, none of the theories are immune from
limitations.

4.2 Why its relativity towards the municipal law does changes its perception?

The General principles of jurisdiction

The European national legal systems have a dual regime in regard to jurisdiction. If the
defendant is domiciled or if the obligation is performed in the EC, one has to refer to the
Brussels Convention. In the other cases, the judge applies its national jurisdiction rules.

The basic principle of the Brussels Convention is that only the forum domicilii has
jurisdiction to adjudicate. However, the Convention provides some limited options and
exceptions.

The difficulty here is obvious :

how to locate the place of some specific obligations under a national law as they do not
contain any provisions in this sense ?

That’s why the European Working Group proposes to modify art. 5.1 in adopting the place
of delivery and the place of prestation as most modern codification do. The adoption of the
place of performance of the contract instead of the relevant obligation would also help for
cases involving e-commerce. How can under the actual regime a virtual transaction be
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localized like an online banking transaction? Technically the obligation, resulting of a

contract between a French client and a Swiss bank, of crediting a smart card is executed on a
server which can be in the United States for example. The place of payment can neither be
localized in case of use of e-money. However, either the place of prestation can be localized
in the country where the bank is established or the place of delivery in the country where the
client has his habitual residence.

The Brussels Convention foresees a certain number of protective jurisdiction rules as well.
One of these is article 13 that allows the court of the domicile of the consumer to judge the
litigation if in the State of consumer’s domicile the conclusion of the contract was preceded
by a specific invitation addressed to him or by advertising; and the consumer took in that
State the steps necessary for the conclusion of the contract.

Unfortunately, during the Commission’s public hearing in Brussels, it were surprising how
the new draft was misinterpreted by the representatives of industry who consider that the
simple fact of having a Website fulfills the new requirement. For torts and non-contractual
restitutionary obligations, the plaintiff may sue the defendant’s domicile jurisdiction or in the
court of the place where the harmful event had taken place (art.5.3). The concept of harmful
event has been interpreted as either the place where the wrongful conduct has occurred and
the place where the resulting injury happened without however including the place where the
victims claims to have suffered financial damage when the initial damage was suffered in
another Member State. The Court of the place where the wrongful conduct has been occurred
has jurisdiction to grant indemnities covering the whole prejudice beard in all the countries
while the Court of the place where a the resulting injury happened only awards damages for
the “national” prejudice.

In regard to enforcement of judgments, those rendered under the Brussels Convention are
recognized and enforceable unless :

Such recognition/enforcement is contrary to public policy;

If the Court of the State of origin, in order to arrive at its judgment, has decided a preliminary
question concerning the status or legal capacity of natural persons, rights in property arising
out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the
private international law of the State in which the recognition is sought, unless the same
result would have been reached by the application of the rules of private international law of
that State;
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If the judgment is irreconcilable with an earlier judgment given in a non-contracting State

involving the same cause of action and between the same parties, provided that this latter
judgment fulfills the conditions necessary for its recognition/enforcement in the state
addressed.

5. CONCLUSION

It is very difficult to apply traditional rules of international private law on jurisdiction in case
a transaction is concluded or performed through the Internet. The EU legislation is now
developing to satisfy the needs of this field, some specific rules have been adopted. But there
are still a number of issues to be approached. In particular, interpretation of international
private law terms when they are to be applied in connection with electronic transactions.
Business world has very serious anxieties about very wide interpretation of such terms. The
EU Court of Justice has not had a chance yet to clarify these issues. Some more time is
needed to adjust contemporary legislation to requirements of nowadays businesses in the light
of new communicational techniques development

BIBLIOGRAPHY

All Answers ltd, 'Rules of Private International Law' (Lawteacher.net, April 2020)
<https://www.lawteacher.net/free-law-essays/commercial-law/rules-of-private-international-
law-commercial-law-essay.php?vref=1> accessed 1 April 2020

American Journal of Comparative Law, American Society of Comparative Law / Oxford

University Press, 1952 -  . Available in printed format and online (see Catalogue).

Paul Torremans (ed.), Cheshire, North & Fawcett: Private International Law.  15th

ed. Oxford University Press, 2017. Written from an English perspective.

VAN CALSTER, G., The Role of Private International Law in Corporate Social
Responsibility, (2014) 3, Erasmus Law Review, p. 125.
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