Private international law
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International private law, private international law or conflict of laws is the branch of private law which regulates lawsuits involving foreign laws or jurisdictions. It is mainly concerned with determining whether the proposed forum is appropriate for dealing with the dispute, and with determining the legal system whose law applies to the dispute.
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Names
The subject has three names which are generally interchangeable, although none of them is wholly accurate or properly descriptive. 'Conflict of laws' is somewhat misleading, since the object of this branch of law is to eliminate any conflict between competing systems of law rather than provoke such a conflict.
In inter-state situations (such as in the United States) "conflict of laws" is almost invariably used as each state jurisdiction is considered a separate state and calling it "international" law would be confusing.
Choice of law rules
Courts faced with a choice of law issue traditionally have had two choices:
- A court can apply the law of the forum (lex fori)-- which is usually the result when the question of what law to apply is procedural or deals with real property; or
- the law of the site of the transaction, or occurrence that gave rise to the litigation (lex loci)-- this is usually the controlling law selected when the matter is substantive.
Most courts in the United States have abandoned these traditonal approaches for new approaches that compare the interests of relevant states to the litigation.
Many contracts include a choice of law clause that determines what law should apply and even a clause which determines the venue of any such dispute (called a forum selection clause. Generally, when the court must consider the foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries or how they might be applied in a foreign court. Such foreign law is technically considered to be evidence, rather than law, for the purposes of the determination of venue.
A minority of courts have, however, determined that if the foreign law can not be proved, then local law may be applied. Conversely, they might assume that the place where the wrong occurred would provide certain basic protections - for example, that the foreign courts would provide a remedy to someone who was injured due to the negligence of another. Finally, some courts have held that local law will be applied if the injury occurred in an "uncivilized place that has no law or legal system." See Walton v. Arabian American Oil Co., 233 F.2d 541 (2d Cir. 1956).
Harmonisation
The Hague Conference on Private International Law is a treaty organization that oversees conventions implementing many of these principles. The deliberations of the conference have recently been the subject of controversy over the extent of cross-border jurisdiction on electronic commerce and defamation issues.
See also
External links
- Hague Conference on Private International Law (http://www.hcch.net/) official website
- Why the Hague Convention on jurisdiction threatens to strangle e-commerce and Internet free speech (http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/commentary/20010927_sprigman.html), by Chris Sprigman
de:Internationales Privatrecht fr:Droit international privé ja:国際私法 pl:Prawo prywatne międzynarodowe zh:国际私法