2020-2021

PRIVATE
INTERNATIONAL
LAW
➢ DEVELOPMENT OF PRIVATE
INTERNATIONAL LAW

SUBMITTED BY- SUBMITTED TO-

HARSH BHAI PATEL DR. R.C. SINGH
SECTION-A ASSISTANT PROFESSOR
ROLL NO.- 180010450033 FACULTY OF LAW
B.A. LL.B. HONS. UNIVERSITY OF LUCKNOW
FACULTY OF LAW 1
UNIVERSITY OF LUCKNOW
TABLE OF CONTENTS

Contents

INTRODUCTION ..................................................................................................................... 3

Definition of Private International Law ................................................................................. 3

ORIGIN AND DEVELOPMENT OF PRIVATE INTERNATIONAL LAW.......................... 4

CONCLUSION ....................................................................................................................... 12

2
INTRODUCTION
Private International law is a distinct part of law which has developed as a system
very recently. Judicial decisions have contributed largely in shaping this branch of
law but it is also influenced by continental thoughts. It is necessary to focus on its
historical development before any serious discussion on Private International Law
issues.
DEFINITION OF PRIVATE INTERNATIONAL LAW
Private international law is a set of rules of procedural law that regulates the relationships between
physical and judicial persons of different nationalities. It determines which legal system and the
law of which jurisdiction will apply to a legal dispute among private individuals involving a
foreign element. It is also called as conflict of laws. The three branches of private international
law are jurisdiction, choice of law, and foreign judgments.1
According to Cheshire- Private international law is that part of law which comes into play when
the issue before the court affects some fact, event or transaction that is so closely connected with
a foreign system of law as to necessitate recourse to that system.

According to Baty- Private international law is the rules voluntarily chosen by a given state for
the decision of cases which have a foreign complexion.

So, Private international law (often referred to as "conflict of laws") governs the choice of law to
apply when there are conflicts in the domestic law of different nations related to private
transactions between those nations. Private international law deals with a variety of topics such
as contracts, marriage and divorce, jurisdiction, recognition of judgments, child adoption and
abduction, and the like.

ORIGIN AND DEVELOPMENT OF PRIVATE

INTERNATIONAL LAW

Private International Law can be developed only when law has become territorial in application.
In ancient times when law was largely personal in application, then the necessity of Private

1
http://definitions.uslegal.com/i/international-private-law/

3
International Law was not felt. Development of private international law in the continental
countries (i.e., Italy, Germany, Netherlands, and France etc.) is mainly by-product of juristic
writings. Hence it is explained by some theories.
a. Rome:
The contribution of Roman legal system towards the evolution of Private International Law is the
rules of Origo and Domicilum i. e. law of natives and alien. A person had his Origo in the place
to which his father or mother (if he is illegitimate) belonged. Domicilium meant the relation
between a man and the urban community which he had chosen for his permanent residence.
Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction
to deal with multi-state cases. The officers of these specialized tribunals were known as the
praetor peregrine. The Praetor peregrine did not select a jurisdiction whose rules of law should
apply. Instead, they "applied" the jus gentium. The jus gentium was a flexible and loosely-defined
body of law based on international norms. Thus, the praetor peregrine essentially created new
substantive law for each case. Today, this is called a "substantive" solution to the choice-of-law
issue.2

b. After the fall of Roman Empire:

After the fall of Roman Empire law again became personal. In such system, the rule of law to
which the defendant belonged must prevail. So, there was no scope for the growth of Private
International Law.
c. 11th and 12th Centuries:

Gradual development of feudalism in North and growth of Italian cities in the South, in 11th and
12th century gave rise to the territorial nature of law. A large number of cities like Florence,
Bologna, Milan and Padua emerged. Each of these cities was subject to different system of laws
which were applicable to the residents therein.3
d. 13th to 18th Century:

2
Greek Law Digest (http://www.greeklawdigest.gr/topics/judicial-system/item/132-private-international-law-
issues-applicable-law-in-case-of-dispute-arising-out-of-legal-relationship-with-international-element-rome-i-
regulation-593-2008/)

3
Medieval Legal History

4
With the development of commerce and transaction dispute arose between individuals of two
cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are
known as Glossators. However, the early Glossators were not so much successful to this end, but
the post-Glossators in 13th century were. The post Glossators discovered the Statute theory.
According to this theory law can be divided into two categories:

I. Real Statute and II. Personal Statute

The main purpose of real statute is to regulate things and the purpose of personal statute is to deal
about personal matters. Real statutes were considered essentially as territorial while personal
statutes were personal. The law of person would be applicable unless such personal law was
opposed to the Public Order of the city. Bartolus was a greatest scholar amongst other during this
period. However, this theory was not perfect as classification of real and personal was not
unanimous amongst cities and the definition of public order was not clear.

e. France:
Statute theory was carried to France in 16th Century. It was refined and developed there by the
jurists. The famous jurists of this time are Dumoulin and D’ Argentre. By the end of 16th century
with the fall of feudalism and rise of sovereign national state, the concept of national statute
developed in Europe. Then the territorial nature of law came to be widely accepted.4
f. Netherlands: Development by Huber in 17th Century
Dutch jurists specially, Max Huber refined statute theory. Huber formulated three maxims of
Private International Law:

• The laws of the state have force only within the territorial limits of the sovereignty of the
state.
• All persons within such territory are bound by the laws of the sovereign.
• By reason of comity, every sovereign admits that the consequences of the operation of a
law in a foreign country shall be recognized by the courts of the country unless such
consequences will not prejudice the subjects of the sovereign by whom its recognition is
sought.

4
The French draft on Private International Law and the French Convention on Codification of Private
International Law by Professor Yvon Loussouan.

5
The formulations of Max Huber have been named as theory of acquired rights. And these
formulations have practical influence on the development of conflict of laws in England even
today.5
g. Germany: Development by Von Savigny in the 19th Century:

German Jurist Von Savigny made a definite break from the previous approaches to the subject
and formulated a new theory of Private International Law. Savigny has rejected both the statute
theory and territorial theory of Private International Law. Savigny’s formulations can be briefly
stated as follows:
• 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 court. This is the natural law concept
of law predominantly considered to be the connecting factor of modern Private
International Law.
• There are rules of private international law which are universal and common to all legal
systems.6

The second proposition of Savigny has been subjected to criticism because it is not possible that
Private International Law of different countries entails universalized characteristics. But his
contention on the natural seat of each legal relation made to the rules of Private International Law
is more scientific and accurate.

h. Origin and Development of Private International Law in England:

The comparative geographic isolation of England from the continent was an obstacle in shaping
private international law in UK. It is true that in England there were two sets of legal rules one
was equity administered by chancery courts and another was common law administered by
common law courts. But this conflict should not be confused with the conflict of choices of law.
Equity and Common law were two sets of legal rules applicable in the same country.
When Scotland was unified with England a new situation arose. England was influenced by
Anglo-Saxon Law while Scotland was influenced by Roman law. Then there was some obvious
conflict of laws with the unification of Scotland and England. The problem of this kind was firstly

5
Max Huber- Sociological Approach to International Law Revisited

6
Public and Private international Law: German Views on Global Issues, Journal of Private International Law, P-137

6
arisen in Calvin’s Case.7 In that case the English courts had to recognize and apply the laws of
Scotland. From that time Private International law in England has been developed by judicial
decisions from case to case and situation to situation.

The first treatise on Conflict of Laws was written by famous jurist Joseph Story (1779-1845).8
Westlake and Dicey followed him.9 The main concern of their writings is attaining justice in a
given case involving foreign element. To be able to do justice in a case they have formulated the
Rules of Conflict of Laws.
i. The Europeanization of Private International Law
The most important recent development for private international law in Europe is the so-called
Europeanization or at the time “Communitarization” of private international law,10 which
essentially entails the continued involvement of the European Union legislator in the field of
private international law. It was not truly possible for the European Community (now Union)
legislator to introduce legislation in the area of private international law until the Treaty of
Amsterdam.11 It should not be forgotten that before this development there were also private
international law instruments created in a European context, but these had the form of
international conventions, which had to be signed and ratified by all participating countries.
Examples of such initiatives are the Brussels Convention concerning jurisdiction and the

7
Coke, Sir Edward. "Calvin's Case, or the Case of the Postnati.". Liberty Fund. Retrieved May 13, 2012. Ed.: ...
someone who was born after James had taken the new [English] throne, who were called the post-nati, a phrase by
which the case is often known.

8
Commentaries on the Conflict of Laws (1834) by Joseph Story

9
Dicey and the Development of English Private International Law by G.W Bartholomew

10
See, e.g., Basedow 2000, pp. 687 “708; Kuipers 2012, pp. 6 “27; Stone 2010. The (increasing) importance of
European law has also been the subject of study at the Hague Academy a number of the times during the past years:
see, e.g., Borr’s 2005, pp. 313 “536; Fallon 1995, pp. 8 “282; Struycken 1992, pp. 256 “383.

11
Treaty of Amsterdam, OJ 1997, C 310. With this Treaty the responsibility for creating legislation with regard to
international judicial co-operation in civil matters was shifted from the third pillar to the first pillar, i.e. the
Community legislator.

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recognition and enforcement of foreign judgments12 and the Rome Convention concerning
applicable law.13 The Brussels Convention has, incidentally, been copied by the Lugano
Convention,14 thus enlarging the number of States party to the Convention with some non-EU-
Member States.15 The disadvantage of merely cooperating by way of international conventions
in the field of private international law is evident. Upon every accession of a new member State,
the convention had to be updated and ratified again by all the members. This has happened several
times with regard to both the Brussels and the Rome Convention, but this ultimately proved to
be too slow and difficult a process and it became more burdensome with the increasing number
of Member States.

With the entry into force of the aforementioned Treaty of Amsterdam on 1 May 1999, the
Community legislator entered the field of private international law, and one could say that it has
not held back. Numerous new initiatives have been taken on the European level. The Brussels
and Rome Conventions have, for example, both been transformed into EU instruments, and are
now known respectively as the Brussels I Regulation and the Rome I Regulation. A number of
complementary instruments to the Brussels I Regulation have been introduced, which basically
deal with smaller, simple claims. The so-called Rome II Regulation has been introduced with
regard to the law applicable to non-contractual obligations. The EU legislator has also delved
into the area of family law with the Brussels II bis Regulation and the Rome III Regulation.16

12 The Brussels Convention on jurisdiction and the enforcement of foreign judgments in civil and commercial
matters, 27 September 1968, OJ 1998, C 27/1 (consolidated version following the accession of Austria, Finland, and
Sweden).

13
The Rome Convention on the law applicable to contractual obligations, OJ 1998, C27/34 (consolidated version
following the accession of Austria, Finland, and Sweden).

14
Lugano Convention, 24 October 1988, OJ 1988, L 319/9. The Lugano Convention has since been replaced by a
new Lugano Convention. See OJ 2007, L 399/1.

15
These States are the Member States to the European Free Trade Association: Iceland, Norway, and Switzerland.

16
The Commission became so concerned that it even openly discussed sanctions for states that did not approve
amendments. See the answer by Commissioner Monti to the European Parliament, OJ 1997, C83/85.

8
It is clear that the ongoing harmonization of the rules of private international law of the EU
Member States is here to stay and that the further Europeanization of the rules of private
international law will undeniably have major consequences for the respective systems of private
international law of the Member States. An important factor therein is the fact that the
Europeanization of private international law not only brings further harmonization, but
concomitantly adds objectives following from European law which are unfamiliar to private
international law, to the conflict of laws methodology in Europe. Important elements of European
law thus suddenly enter the realm of private international law and in this way an
“instrumentalization” of private international law in Europe has been introduced.17 Rules of
private international law are thus permeated by the four fundamental freedoms of the EU Treaty,
by a focus of the principle of non-discrimination, the impact of fundamental rights, and the rule
of mutual recognition. Since the entry into force of the Lisbon Treaty the harmonization of the
rules of private international law is now governed by Title V, which will bring further changes
to private international law within the EU.

j. International Treaties:

The Hague Conference of Private International Law, an international organization established in

1893, is the most prominent organization the field of private international law and as such is
responsible for many conventions concerning issues of private international law. Over the years
the Hague Conference has developed conventions in the areas of international family law,
international legal cooperation and litigation, and international commercial law.18 It should be
noted that the European Community decided to accede to the Hague Conference of Private
International Law in 2006. In the field of international trade law and arbitration the United
Nations (UN) is an important player.19

17
Meeusen 2007, pp. 287 “305.

18
See for an overview of the conventions the website of the Hague Conference [https:\\www.hcch.net\].

19
Particularly, the United Nations Commission on International Trade Law (UNCITRAL) has drafted some
important conventions. The number of conventions concerning private international law concluded by the UN pales
in comparison to the number concluded by Hague Conference.

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In addition to multilateral treaties, there are also many bilateral treaties between countries in the
area of private international law. Such bilateral treaties only operate between two countries and
the precise content of such agreements varies. One could say with regard to European countries
that such bilateral treaties are generally being replaced by multilateral conventions, but the
varying contents of bilateral agreements preclude them from becoming totally meaningless, as
some aspects of private international law issues between the two countries may fall outside the
scope of the multilateral conventions.20
k. National Legislation:
The importance of national legislation on private international law has declined within Europe.
Many of the relevant rules of private international law have an international origin, while for the
EU Member States, EU legislation is of particular importance. Nevertheless, this has not stopped
European countries from developing new codifications of private international law. This
development started in Switzerland and many European countries have since followed suit. In
Switzerland, for example, private international law is governed by the Federal Law on Private
International Law of 18 December 1987. This law regulates virtually all aspects of private
international law in Switzerland. The Netherlands has recently finally codified a number of rules
of private international law (mostly choice of law rules) in Book 10 of the Dutch Civil Code. In
England, private international law rules consist of both statutes and case law. Historically, case
law was the most important source of private international law, England being a common law
country, but legislation now also has an important role.

20
See, e.g., Articles 69“72 of the Brussels I Regulation. See with regard to the concurrence of international and
bilateral treaties on private international law, e.g., de Boer 2010, pp 308“315.

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CONCLUSION

It is clear from the above discussion that like all living law Private international law is not static;
it is a separate and distinct unit of law and the development of this law is not so far developed
and fulfilled with the needs of time. It is quite obvious that new times bring more varied problems
and the area of Private international law is one of the areas where novel concepts and new
directions will have to be fashioned to cope with problems being posed under new circumstances.
So, it is highly recommended that private international law must be continuously developed by
revising its contents, expansion of scope to meet with the changing needs of time.

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