Class 6

Private
International Law
DENOMINATION OF PRIVATE INTERNATIONAL LAW
CLASS 6
► In England Private International Law is traditionally called as Conflict of Laws. This name can
be traced back to at least 17th century, when Dutch Jurist Ulrich Huber wrote a book in 1689
titled De Conflictu Legum – On Conflict of Laws
► Dicey, Morris and Collins used the very same name for the subject in their book
The Conflict of Laws, 2006 Edn.
► When we analyse the name Conflict of Laws we can see that it is rather misleading for the
following reasons:
► As Cheshire had observed there is no conflict between laws, here the main aim of the
subject is to avoid conflict between laws.
► There Conflict only exists within the minds of the judges as to which law to apply when
there is a foreign element present in the case. Thus, in reality there is no conflict
between two nations that claim their law being superior than the other nation’s internal
law.
► The subject involves both choice of jurisdiction as well as choice of law, but the name
gives emphasis only to Choice of Law.
► As observed earlier, the aim is to harmonise any conflicts arising in the law and not to
promote conflict between laws.
► The name Conflict of Laws was later picked up by A V Dicey and used in his treatise in 1896.
Thus this denomination has become rather popular.
► Continental writers prefer the denomination Conflict of Laws.
Private International Law
► The name Private International Law was first suggested by Joesph Story in 1834. he is an
American Jurist and Judge.
► The name Private International Law is more common in European countries and denotes
the same branch of law as Conflict of Laws.
► This name is also misleading for a wide variety of reasons. Lets us analyse this denomination
word by word.
Private
► This term is used to distinguish this branch of law from that of Public International Law, which
is the Law of Nations administered by International Court of Justice. Main sources for Public
International Law are International Treaties and Customs.
► Private International Law is concerned with legal relationship between parties (two/more)
or individuals and corporations. It is governed by municipal laws, and its sources are much
similar to any other municipal law.
International
► This term is used to indicate that not only municipal (internal) laws are used, but that at
times even foreign laws are applied to the suit .
► Still the word International is misleading for two reasons:
► One might be misguided that the subject deals with relationships between nations.
► It is not international in the sense that it is shared and applied uniformly by all nations.
► Similarly, the subject is also concerned with different legal systems within a nation,
such as provincial or State laws within USA / Canada / Australia.
Law
► Even though the term law is used, mere application of Private International Law is not
enough to adjudicate a case, they way a Contract or Company law may be applied.
► Private International Law is not Substantive Law, it is procedural law and is used to help
decide upon
Jurisdiction, Choice of Law and Recognition of Foreign Judgment.
► The most common criticism is that the term can be easily confused with Public
International Law.
► In France, Droit International Prive [Private International Law] is the accepted name for the
subject and covers both Conflits De Lois (Conflict of Laws) and Conflits de Jurisdictions.
(Jurisdictional Conflicts) Thus the French Lawyers are often surprised that English Conflict
of Laws includes both conflict of laws as well as jurisdictional conflicts.
► In Germany Internationales Privatrecht - International Private Law covers only choice of law.
Jurisdiction and recognition of foreign judgment falls under a completely different
subject Zivilprozessrecht. (International Civil Procedural Law)
R Viswanath V Syed Abdul Wajid 1963

Private international law is not law governing relationships between nations, it is simply
a branch of Civil Law of a nation, evolved to do justice between litigating parties when a
foreign element is involved in a suit.
Satya V Tej Singh

Observed that private international law does not enjoy uniformity like public
international law, thus it doesn’t enjoy universal recognition.
► Sometimes private international law disputes arise between nationals of the same
nationals can be seen from many matrimonial cases, while public international law is
almost always a dispute between two separate States.
► West Lake: Private International Law is the right name as the courts are forced to
choose between foreign laws.
► It is also to be noted that certain rules are common between the two branches of law,
such as Sovereign Immunity.
► Some other names suggested for the subject includes:
► Internal Municipal Law : Foderic Harrison
► Extraterritorial Recognition of Rights: Holland
► Civil Family and Labour Law: Szaszy
► Szaszy also observed that this name is unfamiliar, clumsy and too long as well as not
being completely accurate as foreign rights are sometimes involved in other areas also.
► The name Private International Law has stuck and is used more commonly and is rather
accurate as far as :
► International Character of the subject; and
► Relation to private law as opposed to public law.

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Private International Law

R Viswanath V Syed Abdul Wajid 1963

Satya V Tej Singh

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