………………………………………………………………………………………………………………..

Assignment on
“The three principles question of the Private International
Law: A critical analysis”

Course Title: Private International Law; Course Code: LAW-507

Prepared for
Md. Abu Nayem Miazi
Assistant Professor

Department of Law
Green University of Bangladesh

Prepared by
Tajuddin Ahamed
212012002
Department of Law
Green University of Bangladesh

Date of Submission: 17-09-2021

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Contents
CHAPTER: ONE ................................................................................................... 3
Introductory Issues.............................................................................................. 3
1.1 Introduction ............................................................................................... 3
1.2 Objective of the assignment ....................................................................... 3
1.3 Methodology of the assignment ................................................................. 3
1.4 Limitation of the assignment ...................................................................... 4
CHAPTER: TWO .................................................................................................. 5
Principles ............................................................................................................ 5
2.1 Jurisdiction ................................................................................................ 5
2.2 Applicability of Law .................................................................................. 7
2.3 Value of foreign judgments and other documents ...................................... 9
CHAPTER: THREE ............................................................................................ 13
Conclusion, Bibliography ................................................................................. 13
3.1 Conclusion ............................................................................................... 13
3.2 Bibliography ............................................................................................ 16

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 CHAPTER: ONE
Introductory Issues

1.1 Introduction
Private international law refers to the part of the law that is administered between
private citizens of different countries or relates to the definition, control, and
application of rights in situations where both individuals who have rights and have
obligations rest at home. It is a set of rules and regulations established or agreed
upon by citizens of different countries that personally enter into a transaction and
will govern it in a contentious situation. In this case, private international law differs
from public international law, which is a set of rules entered into by the governments
of different countries that determine and regulate the rights of independent nations.
The main three principles questions in the private international law are:
1. Which court has jurisdiction
2. Which law is applicable
3. Value of foreign judgments and other documents
1.2 Objective of the assignment
This assignment has been conducted with the following objectives:
✓ To fulfil the requirement of mid-term assessment.
✓ To develop an understanding on Private International Law;
✓ To sketch out its effectiveness.
✓ To analyze the related international laws.

1.3 Methodology of the assignment

The methods and techniques of data collection are the key components in an
assignment. The outcome of the assignment depends on methodological base, its
appropriateness and proper implementation over the whole process of the study.
The method must be consistent with the objectives of the study that can cover the
whole area of interest. In this study both primary and secondary data have been
collected. Primary data have been collected from various international laws and

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secondary data have been collected from concerned books, journals, periodicals and
other materials.
1.4 Limitation of the assignment
✓ Shortage of time is one of the main limitations of this assignment
✓ Data collection, analysis of data, and interpretation of Data is a lengthy
process.
✓ No previous research I have made on this topic.
✓ There is only one source of information (Websites) for that reason it is pretty
much impossible to find out the real scenario of the topic.
✓ While choosing a finding, anonymity, and confidentiality of issues can create
hurdles.
✓ The reliability and validity of the study can be significant concerns that are
too difficult to relate to and resolve.

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 CHAPTER: TWO
Principles

2.1 Jurisdiction

Terminology and concepts

Jurisdiction literally means (power) as well as the most important and most complex
field of private international law. Complications begin with terminology.
Jurisdiction, in the general law parlor, includes two meanings that are in principle at
least partially separate, even if they sometimes overlap in practice. These
terminological and conceptual differences analyze many comparative laws; They
make it difficult to develop a general theory.1
Similarly, jurisdiction describes the limits beyond the reach of an organization. In
this sense, the concept is not limited to the judiciary but applies to activities within
and outside the three branches of government. In addition to the jurisdiction of the
judiciary, there is also the power to enact and enforce a law, which limits the extent
to which a country can legislate and enforce its own laws and decisions, respectively.
The term jurisdiction as a jurisdiction of the court also includes the word jurisdiction
in some other languages, such as Italian (jurisdiction) and Austrian German
(jurisdiction); In Germany, the term, unless the court is concerned, is Xerxbarkit or
Xerxhohite.
In other words, the jurisdiction describes the allocation of judicial competence
compared to the (potential) competitor competence of other state courts. Insofar,
Germany and Austria International use the term Justonidgiket, the French speak of
Intervention International. In English, one can talk about international venues. In
this latter sense, the jurisdiction is often narrower than in the previous sense.
The terminological difference shows that, for the purpose of theory and comparison,
a functional definition is required. Effectively, for the purposes of personal
international law, jurisdictional law can be defined as the rules and principles that
determine under what circumstances a court is entitled to make an important
judgment on international and / or interstate relations.

1
https://lrus.wolterskluwer.com/store/product/general-principles-of-european-private-international-law/

5
International jurisdiction and jurisdiction over content

Where the jurisdiction of the court is at risk, what can be called international
jurisdiction on the one hand, must be separated from the jurisdiction of the subject
matter on the other. What I call international jurisdiction here includes personal
jurisdiction in rem.
Personal jurisdiction is jurisdiction over an individual, most importantly over a
defendant. Jurisdiction in rem was once considered a matter of jurisdiction based on
his presence in the court area. Today, RIM jurisdiction also ultimately implies that
the jurisdiction of an individual; The mere presence of things provides the basis for
jurisdiction.2

On the other hand, the jurisdiction of the content is not a matter of international
jurisdiction in principle. Instead, it determines the issues on which the court is
entitled to rule. Nevertheless, thematic jurisdiction can also determine the
international limits of jurisdiction.
In this case, for example, when U.S. federal courts acquire jurisdiction over their
content from the applicability of a federal constitution (so-called federal question
jurisdiction). In this case, the court sometimes translates the territorial boundaries of
the applicable federal constitution within the jurisdiction of the court's content. The
U.S. Supreme Court recently suggested that this should be considered a question of
substance (Morrison v. National Bank of Australia, 561 U.S. 247, 254).

Direct and indirect jurisdiction

Whether a court has judicial jurisdiction may become relevant in two different stages
of international litigation. The first step is to discuss the proceedings before the court
which makes the decision, then called the rendering court. The rendering court will

2
http://www.oas.org/dil/private_international_law.htm

6
not hear a case, will decide much less, unless it determines that it has jurisdiction to
do so.
If it makes a decision despite not having jurisdiction, the appellate court may declare
the decision null and void. The second stage relates to efficacy before the court, often
in a different situation, where the decision of the rendering court is requested to be
recognized and / or enforced, followed by the requested court (recognition and
application of justice). The requested court will not recognize or enforce the decision
of the rendering court unless it determines that the rendering court has jurisdiction.
Although they are sometimes thought to be similar, the issue of jurisdiction as a
requirement of judgment differs from the issue of jurisdiction as a requirement for
analytical recognition.3
The first is governed by the law of the rendering state, the second by the law of the
court requested. The rendering court, or recognized court, is not necessarily bound
by the standards of others. In French law, the first is called direct jurisdiction, and
the second is indirect jurisdiction.
This term is more accurate than the German terms (Entscheidungszuständigkeit and
Anerkennungszuständigkeit) and there is certainly no terminological difference that
prefers the English and American tendencies.
Direct and indirect jurisdictions are also different in principle. It may well be that
the rendering court is reasonable to claim jurisdiction under its own criteria,

2.2 Applicability of Law

Application to the United States

The American Law Institute (ALI), a private organization of lawyers, judges and
law professors, drafted the so-called "rehabilitation" of specific areas of law.
Carrying some similarities in their form and structure with European codes, ALI's
re-establishments incorporate all U.S. state laws into a specific subject, such as a
tort, agency, or treaty. As the law changed, ALI released new rehabilitation.
Although the material presented between them is not law, many ALI reclamation
establishments have proven so reliable that courts are known to cite reclamation

3
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2560268

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instead of case law precedents. This has happened, for example, with the
reinstatement of contracts and with torture laws.

Restoration of law, Second: Conflict of Law (1971-2005) not only updated its
predecessor document (which was introduced in 1934 and reflected bias towards
vested rights thinking) but also took a far-sighted position by presenting the
proposed approach, particularly torture and treaty. -In case of anti-law. To draw all
the approaches that were the subject of academic discussion in the previous quarter,
it claimed the applicable law as the law of the place where the "most important
relationship" between the transaction (contract) or the conflict is in the tort and the
parties. In addition, rehabilitation (the second) provides a number of connecting
elements ("acquaintances") to determine the location of the most important
relationship, such as the place of torture, the residence of the parties, and so on.
These contacts will be assessed in the light of the “General Policy” of Section 6 of
the Re-establishment (II). These include party expectations, social interests - the
underlying principles of special law - as well as ease in the administration of justice
and fairness among others. This approach, which some had previously called the
search for a “center of gravity” in the case of contracts, was very influential in the
United States.4

Nevertheless, several of its features can make its application somewhat uncertain.
For example, since the criteria set by recovery (II) do not rank according to priority,
different courts may set different priorities, which may contribute to different
(different) outcomes. Re-placement (ii) also explicitly provides that the choice of
law shall be determined for each issue of the case; As a result, different laws may
apply to different issues in a lawsuit (a situation known as doping (French: "breaks
down into small pieces")). But the practice significantly increases the burden on the
court and the parties concerned. In addition, it reduces the value of decisions as
precedents in subsequent cases, even if they differ slightly. For the procedure thus
giving the court considerable leeway. The predictability thus depends on the
development of a consistent body of case law, yet its position may vary from state
to state.

4
http://www.ritsumei.ac.jp/acd/cg/law/lex/rlr37/004uematsumao.pdf

8
Application to EU member countries
Similar changes have taken place in the European Choice-of-Law system, both in
the laws of European states and in the EU as a result of the subsequent First Rome
Convention and the recent enactment of EU legislation. In the case of torture, the
EU Rome II Regulation has specific rules for certain torts but generally calls for the
application of the law of place of injury, with the exception of the parties' general
habitual residence law and, alternatively, the more closely linked law. The Rome
Eye Regulation in the contract provides specific preferred rules for several types of
contract-for example, the seller’s law for the contract of sale of goods in the absence
of the terms of the opposite party. In doing so, it translates the reference to party law
of the previous Rome Convention as "characteristic performance" (e.g., sale of
goods, provision of services) in concrete terms. The underlying principle of the
Rome Convention is that the application of the most closely connected law becomes
the default rule if no specific rule applies. The Rome Eye Regulation provides
special rules for consumer, insurance and employment contracts.

Application to other countries

In many countries around the world, many of which are based on civil law, recent
legislation has made similarly applicable legislation more flexible. Many
codifications outside the EU, such as Eastern Europe, or legal projects such as China,
no longer refer to a single ruling law, but rather to alternatives such as the general
accommodation of parties and other relevant matters.5
2.3 Value of foreign judgments and other documents

Foreign judgement has values but the judgement should meet some criteria.

5
https://www.britannica.com/topic/conflict-of-laws/Applications-in-the-United-States

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Proper Jurisdiction

A foreign judgment requires recognition that the rendering court had jurisdiction,
but not how to determine Always clean. It is usually decided whether the jurisdiction
exists under the rendering court's own law ('direct jurisdiction'). With indefinite
effect by the rendering court. Exceptions to the default effect exist for the default
trial, which So many have been excluded from the domestic and international
enforcement system. However, there is a state rule The jurisdiction is not binding to
recognize the decision of another state, since no state can bind Another in this regard.

Nor should they be bound: whether the claim of jurisdiction is sufficient for the
purposes Recognition ('indirect jurisdiction') is a different question in terms of
analytical and contextual consideration, and The enforcing court deals with it
independently. If the implementing state claims exclusive jurisdiction in an area,
recognition A foreign decision in that area is usually denied. France has long
defended the privilege of its own citizens to sue And French citizens will be
prosecuted in France for denying the applicability of trials given abroad Submitted
to the jurisdiction of a foreign court; The French Course de Cassation changed this
policy in 2006 (Prier VD Montenach). Where exclusive jurisdiction is not claimed,
some states borrow rules that apply to indirect jurisdiction.

From the rules of the applicable state's own general jurisdiction ('mirror policy').
Other states, more appropriately, To make certain rules for the purpose of
recognition. However, it is an attempt to determine a ‘natural forum’ whose
decisions must be made Not necessarily failed to be recognized because the concept
is not precise enough or unfounded enough In international law.
Most implementing treaties and conventions have rules of indirect jurisdiction.
Older agreements are needed, not specifically. That decision will be given by the
‘natural judge’. Several agreements adopt the mirror policy and require enforcement
Judicial on the basis of a jurisdiction recognized by the judiciary (e.g. Art. 21
Convention relative to Judicial and civil rights between the French Republic and the
Socialist Republic of Vietnam 2001).

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Modern treaties often provide a comparatively detailed list of required grounds: a
court is required to execute a judgment. Rendered to this base, if other requirements
are met; Or excluded bases: the court refrains from enforcing Judgment given on
these grounds. Conventions that have only indirect jurisdiction are called 'singles'
‘Easy’ convention. In contrast, the so-called 'double' conventions also directly
control the jurisdiction and result in relief. 6

Court of Enforcement of Indirect Jurisdiction (1869 French-Swiss Treaty, 1899

Convention in Belgium) And France's relativity in the application of justice, etc. The
Hague Judgments Convention (Draft on the Hague Convention) Recognition and
application of foreign judgments in civil and commercial matters) would have been
a moratorium 'Mixed' convention, because it has third-class jurisdiction outside of
necessity and prohibition, e.g. Authorized countries are free to claim authorized
bases of jurisdiction, but other states are free to deny recognition Upcoming trial.

The Hague talks have failed in part because countries have realized the benefits of
realizing too late Three sections; Moreover, they never fully realized that there are
differences between these three categories Direct and indirect jurisdiction, gave
them an abundance of different options analytically. Future negotiator May be able
to use these experiences for a convention that is where the agreement exists and can
further calibrate Where the disagreement is too great to overcome.
Valid Final on the Merits

Both domestic laws and conventions generally require judgments to be valid, final,
and based on merit, although These requirements are not always spelled out. (i)
Validity for this purpose is determined by the rendering law State of the Court. (ii)
Finalization means that trials are not generally recognized unless a general appeal is
filed. Against them. Exceptions exist in some legal systems (e.g. § 481 cmt). U.S.
law), especially where close legal relations between states enable a system of

https://en.wikipedia.org/wiki/Enforcement_of_foreign_judgments#:~:text=In%20law%2C%20the%20enforcement
%20of,without%20an%20express%20international%20agreement.

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governance to be accounted for. Subsequent reversals result in the execution of a
judgment.
Maintenance convention). (iii) Finally, the judgment must generally be on merit.
This is especially true Procedural decisions, which are not generally recognized,
because the courts of each country usually follow that country The procedure will
not be bound by its own rules and therefore its own procedural rules by other court
decisions.
Public Policy and International and Natural Justice

An important basis of the law of recognition and application is that the requested
court will not normally review The foreign judgment is either under its own law or
any other law (not a 'revision a fund'). As a result, foreign
The verdict was recognized even when a domestic court ruled differently. However,
it has its limitations This liberal approach: all legal systems and virtually all recent
conventions allow states to deny recognition Foreign justice that violates the public
policy of the implementing state. Some systems have specific applications Defense
Some regimes determine the source of public policy.
For example, the Middle East Conference since 1983 And 1995 (see paragraph 19)
allow member states to refuse recognition of foreign trials that are anti-Islamic Law;
This, if read literally, can lead to a wide range of restrictions. In some regimes,
certain types of justice are called Barriers to recognition: For example, many
conventions and domestic law have specific exceptions to the rule of law. Punitive
damages. Finally, some states deny the application of justice to the most important
domestic industries, For example South Africa for its mining industry and British
Columbia for its asbestos industry. Given to any general There is a duty to recognize
foreign justice at all, except that such exceptions are generally consistent with
international law. Contract law provides otherwise.
Structurally similar defenses relate to international or natural justice. Here, the value
is not from the core The domestic legal system of the state requested, but instead
must be established on an international basis. Opportunity This policy is quite
limited. So much can be said with certainty that judgments that violate international
law must not be Will be applied or even recognized.

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 CHAPTER: THREE
Conclusion, Bibliography

3.1 Conclusion
Private international law consists of policies and rules for dealing with legal disputes
that have a foreign element: for example, a cross-border divorce case, or an
international commercial dispute. In England and Wales, the terms ‘personal
international law’ and ‘conflict of law’ are interchangeable, and the subject matter
includes the choice of law, the jurisdiction of the court and the recognition and
application of foreign jurisdiction. The scope of private international law varies from
country to country, and each jurisdiction has its own rules.

In addition to the rules of national authority enacted, treaties, model laws and other
materials have been brought in by international organizations to regulate the scope
of international treaties. These organizations include the Hague Conference on
Private International Law, the International Institute for the Unification of Private
Law (UNIDROAT) and the European Union.

The ALS Library contains significant collections of personal international law. The
Library Catalog has tagged most of the relevant material with the content titled
'Conflict of Law'. Classmark SH has a dedicated private international law
department, which includes books, law reports, journals and other resources.
Extensive scope of this topic, however, useful elements can be found throughout the
library.
Applicable law and jurisdictional instruments that may be relevant to the present
study include the Brussels I Regulation on jurisdiction in civil and commercial
matters, the Rome I Regulation on applicable law in the case of contractual
obligations, and the Rome II-Contractual obligation on non-applicable law. All of
these instruments use autonomous interpretations - which means that the concepts
used must be interpreted in an autonomous manner. This interpretation is relatively
independent of the interpretation of similar concepts in the legal orders of member
countries. Private international law departments are required for different national

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systems. Therefore, specific national requirements for the existence of a contract
(such as consideration under English law) cannot be decisive in determining the
nature of a relationship based on the contract under individual international law.

Moreover, a dispute over the existence and validity of an agreement under applicable
law is of a ‘contractual’ nature to the purpose of personal international law. Two
factors of characterization have a general effect on the application of the
aforementioned regulation: First, all three instruments limit their scope of
application to 'civil and commercial matters'. Second, a distinction must be made
between contractual obligations and non-contractual obligations. This eligibility
issue is addressed in detail in the paragraph of this report. The main results are
presented here.

The notion of ‘civil and commercial matters’ is restricted by claims made by and
against public law entities. Theoretically the concept of 'civic and commercial
matters' can also be used in the public interest and / or to exclude claims between
private parties representing public policy. The ECJ, however, does not leave much
room for such an explanation. Social law is not excluded from the scope of
application of personal international law instruments. Only when a private party acts
on special state privileges can such actions be considered an escape from the
framework established by the regulations discussed here. 14. The fact that a party
has incomplete legal status in some (or all) member states does not seem to affect
this eligibility.
The distinction between contractual and non-contractual liability determines the
relevant areas of application of Rome 5 and Rome II regulations, as well as the
application of Article 5 (1) as opposed to Article 5 (3) of the Brussels Regulation.
According to the ECJ, the concept of ‘contractual matter’ refers to the voluntary
obligation of one party to the other. Obligations do not have to be contractual under
national law. The concept is relatively broad. We conclude from this that an
employer's commitments may fall within the scope of the contract described in the
TCA when the commitments are claimed to be legally binding and are sufficiently
specific about their scope and content.

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The reach of contractual commitment may go directly beyond the signatories to the
TCA. Others may be bound by 'agreement' through representation / organization.
They may also receive rights from TCA as third-party beneficiaries. In the latter
case, the employer's promise cannot be fulfilled with mutual promises from the
beneficiaries. Such unilateral commitments may also be overshadowed by the notion
of contractual obligation. However, for a unilateral commitment resulting from a
contractual relationship, it would seem that the proposal must be specific enough to
both its content and its beneficiaries. It is less clear whether the proposal has been
accepted.7

Accordingly, many of the demands of the unions, the Workers' Council and the
individual workers will be based on the terms of the Brussels I and Rome I
regulations - unless the TCA has a legally binding obligation on them. A caution
should be provided for situations of automatic extension of the joint contract and /
or legal representation: The ECJ limits the concept of contractual obligation to the
obligation that the parties voluntarily assume. It is therefore advisable to ensure
signatory status or proper representation for all parties benefiting from the TCA. The
union or work obligation imposed by the council which the employer did not
voluntarily accept will not fall under the concept of contract but will fall under the
concept of non-contractual liability.

Outsiders (competitors, end consumers) will rarely be able to rely on the provisions
of the Brussels Eye Regulation Agreement. If they wish to enforce the TCA
obligation by claiming unfair competition or misleading advertising, they must base
the court's jurisdiction on Article 5 (3) instead of Article 5 (1). Article 5 ()) covers
all claims aimed at establishing the liability of the defendant and not being heard in
the agreement. Similarly, the law applicable to such claims shall be determined on
the basis of Rome II regulations.

7
https://ec.europa.eu/social/BlobServlet?docId=4815&langId=en

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3.2 Bibliography

https://lrus.wolterskluwer.com/store/product/general-principles-of-european-
private-international-law/
http://www.oas.org/dil/private_international_law.htm
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2560268
http://www.ritsumei.ac.jp/acd/cg/law/lex/rlr37/004uematsumao.pdf
https://www.britannica.com/topic/conflict-of-laws/Applications-in-the-
United-States
https://en.wikipedia.org/wiki/Enforcement_of_foreign_judgments#:~:text=I
n%20law%2C%20the%20enforcement%20of,without%20an%20express%2
0international%20agreement.
https://ec.europa.eu/social/BlobServlet?docId=4815&langId=en

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