Conflict of Laws or Private International Law

Definitions

- The branch of international law and intranational interstate law that regulates all lawsuits involving a “foreign” law element

- A part of private law which deals with foreign relations

Concerns

Conflict of Laws is concerned with: determining whether the proposed forum has

jurisdiction to adjudicate and is it the appropriate venue for dealing with the dispute

determining which of the competing state’s laws are to be applied to resolve the dispute

It also deals with the enforcement of foreign judgments

International v. intranational

The term “conflict of laws” is suitable for common law systems because most common law countries are being comprised of a number of states (USA) or ‘like-state’ entities (UK)

When there is a matter of different laws to be applied, that does not necessarily mean it is an international matter (but rather intranational)

Choice of law rules

The body of rules indicating which territorial system of law should be chosen

The court faced with a choice of law issue counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection

History

The first instances of conflict of laws can be traced to Roman law where parties from foreign countries would go before a praetor in Rome to plead their case

The modern field of conflict emerged in the USA during the 19th century

The terminology

Joseph Story was the first to use the term Private International Law in his influential treatise Commentaries on the Conflict of Laws in 1834

The phrase Conflict of Laws

Ulrich Huber (1636-1694) used the phrase Conflict of Laws in his tract De Conflictu Legum Diversarum in Diversis Imperiis

Story’s term (Private International Law) is now used in Europe

Huber’s term is used in England and the USA

Arbitration

Settling of a dispute by an outside person or persons chosen by both sides

The parties can agree to settle their dispute in a country not involved in the dispute

An arbitrator is an independent, neutral third party who hears and considers the merits of the dispute and renders a binding decision

Types of disputes

Commercial disputes (international commercial arbitration – The International Court of Arbitration settles business disputes of an international character)

Traffic accidents in foreign countries Divorce if spouses are of different nationalities

etc.

Stages when a conflict of laws occurs

1. The court decides if it has the jurisdiction;2. The court characterises the cause of action3. Choices of law rules (called renvoi-send

back; upućivanje) that are to be applied (with proper legal explanation)

4. Rules must be proven before the court (lex causae – mjerodavno pravo)

5. The successful party enforces the decision

Translate the following:

U međunarodnoj trgovini brojni su sporovi koji uključuju dvije ili čak više zemalja. Takvi se sporovi, naravno, ne odnose isključivo na uobičajene trgovačke ugovore. Sjetimo se samo turista koji u stranoj zemlji dožive prometnu nesreću, ili pak dugotrajnih sporova oko djece ili imovine između muža i žene različitih državljanstava.

Svaka zemlja, stoga, ima granu prava koja se u Engleskoj zove Sukob zakona, da bi riješila ova dva važna pitanja: sudovi koje od dviju ili više zemalja su nadležni u slučaju nekog spora, i zakon koje zemlje se primjenjuje za rješavanje tog spora. Stranke se mogu dogovoriti da se spor rješava u zemlji koja nije uključena u spor.

In international trade, there are many disputes which involve two, or even more, countries. Of course, these disputes are not confined to ordinary commercial contracts. Let us only think of the tourists in a foreign country who are involved in a traffic accident, or the endless disputes over children or communal property between husbands and wives of different nationalities.

Every country, therefore, has a branch of law which in England is called Conflict of Laws to settle these two important questions: in which of two or more possible countries do the courts have jurisdiction in a particular dispute, and what law are they to apply to settle the matter. The parties may agree to have the matter settled in a country not involved with the dispute.