Private International Law (PIL)

From Max-EuP 2012

by Jürgen Basedow

1. Concept, object and purpose

Private international law may be defined by the origin of its rules, by their object or by the method employed.

a) The referral method

In the view prevailing in Germany, private international law includes all rules of law which deal with cases connected with several legal systems by referring the solution of certain issues to one of the legal systems involved. The precepts of private international law are distinct from other legal rules since they do not provide for substantive solutions but simply decide which of several legal systems involved in a case—and providing conflicting rules—is competent to find the solution. Therefore, such precepts are called conflict rules. Despite the designation of the discipline as private international law, conflict rules are not international in respect of the source of their binding force although numerous international conventions aim at the unification of conflict rules; it is rather their object, ie the contact of a private legal relationship to several national legal systems, that justifies the designation of private international law.

This understanding is influenced by the idealistic philosophy of the early 19th century. The substantive rights of private individuals and their legal relation with other individuals are the starting point of the legal analysis; the uniform determination of such rights and legal relations is its ultimate objective. In this perspective, the identification of the applicable law is the first issue that has to be solved in a transborder case. Procedural issues are of a secondary nature; the law of procedure is conceived as performing a service function for the enforcement of substantive rights as defined by the applicable law.

This understanding of private international law is a narrow one in several respects. Its identification with the referral method a priori excludes any attempt to deal with cross-border legal conflicts by way of harmonization or unification of substantive law (uniform law). However, such attempts do characterize a substantial part of the development of private law ever since the late 19th century. A second restriction consists in a questionable neglect of procedural issues such as jurisdiction and the recognition and enforcement of foreign judgments. From an idealistic approach these issues have to be solved in a way such as to optimize the application of the substantive law designated by private international law, ie to exclude impairments by other legal systems. The primacy of substantive law is sometimes expressed by provisions on jurisdiction which make use of the same connecting factors as the conflict rules (parallel connection) or by rules which make the recognition of foreign judgments dependent on the respect of the substantive law which would have been designated by the conflict rules of the state of recognition. Distinct considerations of the law of procedure, concerning for example safeguards of the access to justice or the acceleration of proceedings, are of minor significance in this perspective (European civil procedure). A further limitation of this approach relates to the legal aspects of the connecting factors used in conflict rules. They are considered as preconditions of the operation of conflict rules to be dealt with by other parts of the legal system. Thus, the law of citizenship, of the incorporation of companies or of the flags to be flown by vessels are not considered as part of PIL. A final restriction consists in the exclusion of substantive rules which directly regulate the rights and legal positions of foreigners.

b) Private law for cross-border fact situations

In other European countries different object-related conceptions of PIL are widespread. Where the law in general is perceived in terms of its judicial enforcement, PIL is considered as that part of the legal system which the court has to implement in cases with a foreign element; this is, for example, the case in England. Issues of jurisdiction and of the recognition and enforcement of foreign decisions will of course be included just like those of the applicable law. French doctrine, too, takes an object-related approach to the concept of PIL. In the French view, PIL includes all the legal rules which are applicable to private persons involved in international relations. This understanding comprises the law determining the position of foreigners, relating for instance to residence permits, and of citizenship, which clearly goes beyond the English perception.

c) PIL as international law

In Italy the academic teachers of international law and PIL have traditionally been the same professors. This is due to an original understanding of diritto internazionale as a unitary legal order overarching the individual legal systems; its subjects are states and also private persons involved in international relations, and the source of its binding character has initially been considered as lying beyond the individual states. Private international law as forming part of this overall international legal order was distinct from public international law because of the addressees, which are not states but private persons. This perception has given way to an understanding which, similar to what has been outlined for Germany, focuses on the referral method of the conflict rules as the central criterion of PIL. Moreover, PIL is no longer considered as flowing from international law, but as forming part of a national legal system. To date, however, the vicinity of PIL and international law has been stressed by authors who point out the character of private international law as defining the territorial scope of national sovereignty as expressed by private law.

d) The European approach: enumeration

The concept of PIL employed in European integration does not hinge on the legal method decisive for the definition mentioned above at a) and focusing on the referral technique. Nor is it important to establish a common inventory of all areas of the law which are covered by the concept of PIL. In this context it is sufficient to enumerate the single disciplines of the law as shown by Art 81 TFEU/65 EC. This provision designates the substantive objective to be attained by European integration as the judicial cooperation in civil matters: this includes the coordination of the court systems dealing with private law in the Member States, the increase in permeability of intra-Union borders to be put into effect by that cooperation and the higher compatibility of the national conflict rules of Member States. To the extent that these objectives can be attained, the practical decisions of law suits will no longer depend on the country where litigation takes place. Harmony of decisions, which has been acknowledged in many Member States as the ultimate objective of private international law, is thereby laid down as a priority goal in European law as well.

2. Trends of legal development

Ever since antiquity courts have been hesitant to apply their own law to fact situations that have a strong link with foreign jurisdictions. Where they refrained from enforcing the law of the forum they would have to decide on the legal rules they would apply instead. Should they base their decisions on principles of universal recognition? This was the perception underlying the ius gentium of the Roman law, but a similar approach was also common to the civil law traditions on the European continent where the special statutes of cities and principalities were conceived as being deviations from the general ius commune. Recourse to ius commune was supported, first, by the authority of the Emperor, secondly by the experience of Roman lawyers going back to times immemorial and, thirdly, the easy access for generations of lawyers who had studied their discipline on the basis of the Digest and who were able to read the Latin texts. Or should the judge apply the local statutes of foreign principalities and cities? During the times preceding the 19th century we find answers in both directions. As feudalism decreased in significance and modern territorial states evolved, it became more and more common ground that law is a product of the sovereign state, flowing from a decision-making process conducted by the competent state institutions. This perception received decisive support from the Westphalia Peace Treaty of 1648 when the European powers for the first time officially recognized that there were sovereign states not subject to the Emperor’s powers. While the application of foreign law is difficult to reconcile with the absolute and comprehensive claim to sovereignty, it is required as a matter of individual justice in many cases. Although they would not acknowledge an obligation in this respect, early Dutch theories of PIL would approve of the application of foreign law as a matter of comity as against the foreign state and its law.

The 19th century witnessed a perfection of state powers: the progressive congruency of state borders, national culture and national economy brought about the nation state and for the first time conveyed a distinct national character to the law enacted by that state. It justified the expression private international law. On the other side, a European upper-class emerged that carried out transnational activities which required legal security meaning above all a clear identification of the applicable law. The result was what has been called the ‘Copernican turn’ (Paul Neuhaus) in PIL. The starting point of the legal analysis was no longer the judge’s question of how far the scope of the law of the forum extends, but the legal relationship between the private parties involved and the identification of the law governing that relationship. Conflict of laws scholarship no longer departed from the court as a state power with a downward view to the facts of the single case, but in the opposite sense from the private legal relationship upward to the various legal systems involved. The unilateral conflict rules which exclusively determined the scope of territorial application of the lex fori were replaced by bilateral conflict rules which connect the fact situations to certain objective and neutral factors such as citizenship, place of acting or the location of a corporeal good (connecting factors (PIL)). Depending on the facts of the case these connecting factors sometimes referred to domestic law and sometimes to foreign law. Domestic and foreign law were basically put on an equal footing.

This was the background of the development of a system of connecting factors which took account of the needs of the European bourgeois society and at the same time safeguarded the interests of nation states in the territorial scope of the legal and political organization of their respective societies. In respect of personal status, citizenship became the dominant connecting factor in many continental countries while the domicile as interpreted by English courts was acknowledged by the common law and provided for an almost equally stable connection. As far as property and other in rem rights were concerned, the lex situs is of universal recognition and at the same time an expression of the territorial sovereignty over corporeal things located in a state (property law (international)). The same can be said in respect of torts where the lex loci delicti commissi prevailed giving way to the local regulations of behaviour (non-contractual obligations (PIL)). Initially, the quest for security of transactions overcame other considerations only in the field of contracts; for many years, however, the free choice of law by the parties was only recognized as a makeshift or compromise solution (Gerhard Kegel).

Ever since the 1960s, the European integration has led to a tremendous increase in cross-border legal relations and, as a consequence, international litigation. These disputes are no longer an exclusive matter of large businesses and a small upper class, but concern the population at large. In the 1990s this development continued at a universal level under the heading of globalization. The consequences for private international law are clearly discernible. A wave of codifications gives evidence of the growing significance of PIL for legislators. At the same time, the more detailed and sophisticated character of conflict rules points to the greater practical experience with a multitude of different fact situations. The far-reaching guarantees of free movement prevent state legislators from making clear predictions about how and where people will spend their future lives. The individuals are better and better placed to make those predictions which has led to an increasing recognition of the free choice of the applicable law, beyond the area of contracts, in succession law (succession law (international)), in family law (family law (international)) and in the field of torts (non-contractual obligations (PIL)). At the same time, very stable connecting factors like citizenship or domicile as interpreted in the original English understanding have become less and less significant as connecting factors for the personal status.

3. Uniform PIL—The Hague Conference

The evolution of multilateral or bilateral conflict rules in the second half of the 19th century takes account of the need of the European bourgeois society for security of transactions, and at the same time is a response to the nationalization of private law which started with the Code Napoléon in 1804 (Code civil) and which continued in many continental countries. The derogation of ius commune by the civil codes did not any longer permit having recourse to common principles in transborder cases. The designation of the applicable law, ie the choice between the lex fori and a foreign law, became inevitable.

Under these conditions the harmony of decisions as the ultimate goal of private international law could only be attained where courts in the countries involved would apply the same national law to the adjudication of a transborder case. This would require identical conflict rules in the various countries. Since the national civil codes of the 19th century dealt with private international law only in a rudimentary way or not at all, eminent scholars and politicians soon proposed adopting common conflict rules by way of international agreement as a means to safeguard the harmony of decisions in cross-border disputes in spite of divergent national private law (TMC Asser, Pasquale Stanislao Mancini). As a consequence of these proposals, diplomatic conferences were convened in Montevideo in 1889 and in The Hague in 1893. Already before World War I a number of conventions on private international law of family and succession matters and on international civil procedure were adopted at The Hague. Until World War II the conferences were convened ad hoc by the Dutch government.

It was only after World War II that the Conference received a proper statute as an international organization (Hague Conference on PIL). The topics cover the whole area of private law, but the success of the conventions measured in the number of ratifications and accessions varies considerably. The success has been high for conventions on the protection of children, in particular on the abduction of children (1980) and on their adoption (1993); the conventions on civil procedure, in particular on the legalisation of foreign public documents (1961), the service of documents (1965) and the taking of evidence (1970) have had a similar success. All these conventions focus on the cross-border cooperation of the judiciary in the various contracting states which explains their acceptance across the globe. By contrast, the success of those conventions which exclusively deal with the applicable law is limited and essentially reduced to Europe. These subjects will, however, be taken over by the European Union in the future (see 4 below) which has joined the Hague Conference as a member in 2006. If the Hague Conference wants to keep on playing a significant role for the development of private international law, it will therefore be necessary to stress its universal character which will in turn require drafting the work programme in accordance with the wishes of Member States of other continents.

Other international organizations, too, have produced conventions dealing with private international law from time to time. This applies to UNCITRAL (Convention on the assignment of receivables of 2002) and the International Commission on Civil Status (CIEC).

4. The Europeanization of PIL

The European Community has contributed to the harmonization of national conflict rules of the Member States already during the first 30 years of its existence; examples can be found in the legislation establishing the European internal market in transport and insurance. Moreover, the case law of the European Court of Justice (ECJ) on the fundamental freedoms has repeatedly influenced the outcome of the conflicts analysis in areas such as unfair competition (unfair competition (basic principles)), international company law (company law (international)) or the law relating to names (law of names). There has, however, not been any comprehensive legislative programme on PIL prior to the Treaty of Amsterdam. Two issues arising in this context, namely the mutual recognition and enforcement of judgments and the recognition of companies, have even explicitly been reserved to intergovernmental cooperation in the original EEC Treaty (Art 220 which later became Art 293 EC, deleted in the TFEU).

The Treaty of Amsterdam entrusted the Community with the mission to establish an area of freedom, security and justice and to adopt, for this purpose, measures relating to the judicial cooperation in civil matters, Art 67 TFEU/61 EC. In accordance with Art 81 TFEU/65 EC this includes measures in the areas of international civil procedure as well as provisions which promote the compatibility of the conflict rules applicable in the Member States. The Community institutions have immediately and forcefully tackled the new assignment. On the basis of the Vienna Program, an inter-institutional action plan of December 1998, a number of regulations have been issued: Reg 1346/2000 on insolvency proceedings (insolvency, cross-border), Reg 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels I’), Reg 1206/2001 on the taking of evidence, Reg 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters (family law (international)) and the matters of parental responsibility (‘Brussels IIbis’), Reg 805/2004 on the European Enforcement Order for uncontested claims, Reg 1896/2006 on a European payment order and Reg 861/2007 on a European small claims procedure; the latter Regulation for the first time deals with substantive provisions on civil procedure (European civil procedure). Regulation 1393/2007 on the service of documents replaces the prior Reg 1348/2000. The Brussels I and IIbis Regulations as well as the Regulations on insolvency proceedings, on the service of documents and on the taking of evidence abroad essentially draw on prior conventions that did not take effect. However, the instruments enacted since 2004 are breaking new ground.

In more recent years, the Community has enacted further regulations that focus on choice of law: Reg 864/2007 on the law applicable to non-contractual obligations (‘Rome II’) has been supplemented a year later by Reg 593/2008 on the law applicable to contractual obligations (‘Rome I’) which in substance amends the Rome Convention of the Member States of 1980 on the law applicable to contractual obligations. In respect of matters relating to maintenance obligations, Reg 4/2009 contains rules on jurisdiction, the applicable law and the recognition and enforcement of decisions. The rules designating the law applicable to divorce and legal separation have been laid down in Reg 1259/2010, which has for the first time implemented an enhanced cooperation under Art 326 TFEU, in this case for 14 Member States. In addition to these autonomous measures of the Community/Union, several decisions have been taken by the Council which provide for the accession of the Community/Union to international conventions or for the ratification, by Member States, of such conventions in the interest of the Community or Union.

The conflict rules adopted by the Community or the Union differ from traditional choice of law rules of nation states in a fundamental way. Since the Union has not enacted much private law of its own, its legislation on private international law has the main function of allocating the right of application of national private law among the various jurisdictions involved in a case. Quite to the contrary, national conflict rules always pursue the objective of safeguarding the territorial scope of application of the private law of the same country. Thus, while Member States legislating in the field of PIL may be compared to players in a match, the Union rather performs the function of the referee. The Union can be a player only to the extent that it enacts conflict rules vis-à-vis third states, something which has been done by the two Rome Regulations but not in the field of international civil procedure (European civil procedure).

Literature

Académie de Droit International de la Haye, Recueil des Cours/Hague Academy of International Law, Collected Courses: several monographs per year in English and French; Max Gutzwiller, Geschichte des internationalen Privatrechts (1977); Henri Batiffol and Paul Lagarde, Traité de Droit International Privé, vol I (8th edn, 1993), vol II (7th edn, 1983); ‘100 Jahre Haager Konferenz’ (1993) 57 RabelsZ 1; Jürgen Basedow, ‘The Communitarization of the Conflict of Laws under the Treaty of Amsterdam’ (2000) 37 CMLR 687; Tito Ballarino, Manuale di Diritto Internazionale Privato (6th ed 2001); Christian von Bar, Internationales Privatrecht, vol I (2nd edn, 2003) (together with Peter Mankowski), vol II (1991); Gerhard Kegel and Klaus Schurig, Internationales Privatrecht (9th edn, 2004); Michael Bogdan, Concise Introduction to EU Private International Law (2006); José Carlos Fernández Rozas and Sixto Sánchez Lorenzo, Derecho Internacional Privado (4th edn, 2007); Geoffrey C Cheshire, Peter North and James J Fawcett, Private International Law (14th edn, 2008); Kurt Lipstein (ed), Private International Law, IECL III/1 and III/2 (2011).

Retrieved from Private International Law (PIL) – Max-EuP 2012 on 27 January 2022.

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