Genesis and the Development of PIL PDF File

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1. Genesis and Development of
Private International Law
PREM CHANDRA RAI

2. GENESIS
1.The Roman Empire (before 5thCentury AD)–
genesis of PIL
In earlier stage: to the Roman citizens the
Roman law applied and the citizens of provinces,
the provincial law applied. May be call era of
personal law.
In later stage: Roman law was made law of
entire Roman Empire. called Era of Territorial
Law.

3. 2. The Downfall of the Empire –era of
personal law (6thto 10thcentury)
After the fall of Roman Empire at the hand of
barbarians, they started practicing their own
tribal laws. It is understandable that the
barbarians who invaded Rome were not from
single tribal group, and therefore brought
different tribal laws with them. This was exactly
period when era of personal law started and
lasted till the emergence of feudalism in Europe.

4. 3. Era of Feudalism -revival of roman
law (11th to 12th Century)
ØEmergence of feudalism in Europe caused to
breakdown of personal law, and gave raise to
territorial system of law.
ØThe society of north of the Alps was gradually
transformed into number of feudal units. The
feudalism is negation of personality.
ØIn northern Italy the trade and business
flourished. These city states developed their own
laws and customs collectively known as statute.
Conflict of law situation arised.

5. Early Development of Theories
4. 13thCentury Origin of Statute Theory –Batoulusof Italy
•The Statute Theory was developed to give solution to the conflict of laws among the Italian city states and between the laws of Italy and other city states:
•Statutes (law and custom of particular state) were classified under 3 heads: The Real Statute (statute realia-govern things) was territorial, personal statutes (peronalia) -govern persons wherever they go, mixed statute applied to all acts done e.g. formation of a contract. Mixed statute: law of city where acts was done governs regardless of place of litigation.

6. 5. French School of Statute Theory
(16thCentury):-Charles Dumoulin & D
Argentre:
They tried to specify as to how to characterize fact under statute theory. Dumoulinsaid that the governing applicable law of contract was the one intended by parties, gave priority to personal intention. On the other hand, D Argentregave priority in territorial laws as saying the personal status such as legitimation is in fact is connected with the real such as property and should be govern by territorial law. And, propounded the theory of territoriality of law.

7. 6. Dutch School of Statute Theory
(17thCentury): FU Huber and John
Voet
Huber provided exclusive sovereignty principles-3
principles:
–State laws applicable to everything but only in territory no
beyond;
–State laws applicable to every one in territory including
foreigners (both territorial) ;
–But by comity, laws not only its country of origin but
everywhere shall retain its force unless become prejudicial
to sovereignty of others (extraterritorial by comity).
Voet, also emphasized on the principle of territoriality
and said that, no statute (real, personal or mix) could
have any effect beyond territory as power of legislature
must be limited by bound of his territory.

8. End of Statutory Theory Development
of Private International Law
7. International Theory(19thCentury): Carl Von
Savignyof Germany
•Rejected statute theory (by Huber) because it did
not imply a sufficient degree of compulsion;
•Said: it is possible to construct a system of private
international law applicable to all civilized nation;
•Not to classify the laws according to object but
try to find natural legal relation of foreign law in
local level.

9. 7. Savigny …
•Each legal relation has its natural seat in a particular local law, and it is that law which must be applied when it differs from the law of the forum.
•Because of the legal relationship, judgment to be pronounced would be same no matter in which state it is pronounced; in applying foreign laws rejected the idea of comity, applied the idea of benefit it brings.
•The principal determinants of natural seat are:
–The domicile of any person concerned in the legal relation.
–The place where a thing which is the object of the legal relation is situated.
–The place of a juridical act, which has been or is to be done.
–The place of the tribunal which has to decide a lawsuit.

10. 7. Savigny …
•Propounded the idea of existence of
international community; uniform system of
private international laws.
Criticism & Successes: Though the assumption
of uniformity of legal relations in all systems of
law is criticized as false assumption, his goal of
harmonized rules on choice of law has
succeeded in large part in Europe through
conventions and regulations at the EU level.

11. Development of Modern Theories
8. Territorial Theory or Theory of Acquired rights: AV Dicey
and JH Beale
•A judge cannot directly recognize or sanction foreign laws
nor can he directly enforce foreign judgments for it is his
own territorial law which must exclusively govern all cases
that require his decision.
•Judge only protects rights acquired by suitor under a foreign
law or foreign judgment by applying territorial law.
Criticism: under private international law, territorial law is
not confined within a sovereign state, but rule of choice of
laws includes; -under the rule of choice of laws rights
unrecognized by foreign laws may be enforced.

12. 9. Local law Theories, WW Cook, America
•Court of the forum recognizes and enforce a local
rights, i.e. one created by its own law.
•The forum court applies its own rules to the total
exclusion of all foreign rules.
•Todecide cases having foreign elements, applies
own laws identical to that foreign laws
Criticism: only technical quibble provide nothing
solve nothing

13. 10. Theory of Justice, English Judges,
Practically developed by English judges and provide by English statutes about conflict of laws. Applicability of foreign laws:
•Sociological: international need for fair treatment in private transactions of individuals;
•Ethical: Judge, lawyers, and legislator are trained to be as expounder of the justice;
•Legal: judges is bound to achieve best result by the oath.
Criticism: not a perfectly valid theory, cannot explain in absolute term.

14. Unification of Private International
Law
•The first step Bern Convention of 1886:
protection of the rights of authors over their
literary and artistic works was formed.
•The Hague Convention of 1955 provides for
uniform rules relating to carriage of goods and
persons by air.
•In the Brussels Convention of 1922 the unification
of rules relating to carriage to goods and persons
by sea came into existence.
•The Geneva Conference of 1930 resulted in a
Convention on the Uniform Law of Bills of
Exchange.

15. •Then came in the Geneva Convention on
International Carriage of Goods by Road of
1956.
•Modern Hague Conventions: include
jurisdiction, choice of law rule, and
recognition of foreign judgment in many
issues. Convention could be found at HCCH
website.

16. Harmonization in Europe
1.Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Conventions) in 1968
2.Rome Convention on Contractual Obligations (1980), which applied in the member states of the European Union (EU)
3.In 2000, the European Council adopted Brussels Regulation as a binding law replacing the 1968 Brussels Convention and further revised in 2012.
4.In 2008 the EU adopted the Rome I Regulation, which transformed the Rome Convention into binding EU law.
5.The following year promulgated the Rome II Regulation, which provided rules for determining the applicable law in cases of non-contractual obligations.

17. Development of PIL in Nepal
1.Court Started Using PIL rules:
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2. PIL appear in different laws but in the codified form of Nepali
legislation in 2017.