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Unification of Private International Law: (Type The Company Name)
Unification of Private International Law: (Type The Company Name)
Unification of Private International Law: (Type The Company Name)
Unification of
Private
International Law
[Type the document subtitle]
5th Semester
October 2011
Introduction
Private international law is that part of the law of any State which comes into
operation when a court is called upon to determine a suit containing a
foreign element. Such a foreign element may exist, for instance, because a
contract has been made or is to be performed in another State or because
the recognition of a divorce obtained by persons domiciled abroad may arise.
Since World War II, international trade has also grown exponentially and with
it the importance of international law. With increased business between
different nations, the need for increased harmonization of private laws has
become apparent.
Another area of the law that has been the object of intensive unification
efforts ever since the end of the 19 th century is private international law. The
ambivalent nature of this discipline is well-known. For continental legal
theory in Europe it is part of private law determining the applicable law in
private relations. On the other hand, the theory of comity of nations which is
rooted in categories of public international law such as the sovereignty of
nations has had a strong impact on private international law in certain
countries such as the United States. Before World War I the diplomatic
dimension of private international law was perceived on the European
continent much more clearly than it is today. Mancini, the influential Italian
scholar and foreign minister had declared three principles as fundamental to
private international law, two of them being state-related: freedom,
nationality and sovereignty. The application of foreign law was considered as
a kind of complaisance vis-à-vis the foreign state. Therefore the German
ministry of foreign affairs successfully objected to the adoption of bilateral
conflict rules in the codification of German private international law in the
1890s; conflict rules referring to foreign law were thought to be a matter of
diplomatic convention. In accordance with this view the first conventions
agreed upon by The Hague Conference on Private International Law in 1902
provided only for the obligation of contracting states to apply the law of
other contracting states. Contrary to the modern Hague conventions, cases
involving the law of non-contracting states were not covered. Aspects of
sovereignty also played an important role in the first conventions on
maritime private law which were prepared by the Comité Maritime
International and were concluded in Brussels in 1910.
As evident, uniform law conventions of the pre -World War I period invariably
had a strong public law dimension. The use of the international treaty as an
instrument of unification therefore was logical and may even have suggested
itself. The private law content of these conventions gradually increased in
course of time. But the breakthrough towards pure private law conventions
did not happen until after the First World War. The first convention that
exclusively dealt with private legal relations was the Brussels Convention on
Bills of Lading of 1924 which is better known as the Hague Rules. It is
significant that the scope of application of this instrument is in no way
related to the nationality of the parties or the nationality of the ship, but only
to the issue of a bill o f lading in a contracting state. Further conventions of
the interim period between World Wars I and II give evidence of a clear
distinction between private law and public law. This is true for the Warsaw
Convention on the International Carriage by Air and also for the various
Geneva Conventions of the early 1930s on cheques and bills of exchange
where public law and private law issues are dealt with in separate
instruments.
The first attempts on unification originated in the 19th century when The
Hague Conference on Private International Law was established 1. The Hague
Conference goes the traditional way of the Conflict of Laws 2 and soon it was
followed by the other similar conventions. At the beginning of the 20 th
century The International Chamber of Commerce, The International
Institute for the Unification of Private Law (UNIDROIT) and later on under the
patronage of the United Nations, The UN Commission for International
Trade Law (UNCITRAL) were founded. Except for the directly applicable UN
convention on Limitation Period in the International Sale of Goods (1974) and
the UN Convention on Contracts for the International Sale of Goods (known
as Vienna Convention of 1980), all three initiatives went rather the way of
alternative unification, notably in the form of standardized contract terms
1
The first session of The Hague Conference took place already in 1893. On its seventh
session in 1951 the Statute of the Hague Conference was adopted and its irregular
meetings were converted into the international organization. The Czech Republic has been
a member of the HC since 1993. Convention of 15 November 1965 on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention of 18
March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters and
Convention of 4 May1971 on the Law Applicable to Traffic Accidents belong among the
most important deeds of the Conference. Significant amount of the drafts, however, never
came in force because they were not ratified by the required number of states. Despite the
fact, they are of considerable importance in the field of the PIL as they served as a source
of inspiration to later achievements.
2
Traditional methods of the PIL are regulations via (I) conflict-of-law rules and (ii) directly
applicable norms (treaties).
(INCOTERMS), issued by the International Chamber of Commerce), UNCITRAL
model law, and UNIDROIT Principles of International Commercial Contracts
respectively3.
The first step in the direction of unification of international laws was taken by
the Bern Convention of 1886 under which an international union for the
protection of the rights of authors over their literary and artistic works was
formed. After the First World War an International Institute for the Unification
of Laws was formed. The Warsaw Convention of 1929 which was amended
by the Hague Convention of 1955 is a very important landmark in this
direction. This convention provides for uniform rules on carriage of persons
and goods by air. Subsequently, the ‘Geneva Convention on International
Carriage of Goods by Road’ came into force in the 1956. The Geneva
Conference of 1930 resulted in a Convention on the Uniform Law of Bills of
Exchange. An important contribution has been made by the Rome Institute in
conjugation with the Hague Conference in arriving at a Convention in 1964
which establishes a uniform set of rules on international sales of goods and
also on the formation of contracts for such sales.
The following are the other conventions dealing with unification of private
international law.
1. Convention on the Uniform Law of International Sale of Goods and
Uniform Law on the Formation of Contract for the International Sale of
Goods, 1964
The origin of the Hague Conference can be traced to the influence of the
renowned Italian jurist Pasquale Mancini. He submitted a report to the
second session of the Institute of International Law in Geneva in 1874 in
which he advocated the unification of the rules of the conflict of laws in the
various national jurisdictions. The first Hague Conference on Private
International Law was convened by the Government of the Netherlands and
held in 1893. The Conference originally held its sessions on an ad hoc basis,
but subsequent meetings took place with certain regularity though at long
intervals. At its seventh session in 1951, the Conference adopted its present
Statute which entered into force on 15 July 1955 as a multilateral
international treaty. According to article 1 of the Statute, it is the objective of
the Conference to work for the progressive unification of the rules of private
international law. These objectives are thus quite different from those of the
Rome Institute, which attempts to unify specified branches of substantive
law of different countries. The Statute provides in article 2 that countries
which have taken part in one or several sessions of the Conference and
accept the Statute shall be members of the Cnference. Other States may be
admitted as members by decision of the majority of votes cast by the
participating members. In addition to the sixteen States which were
represented at the adoption of the Statute. Interestingly, none of the Latin
American countries participated, perhaps because they have their own
arrangements for the unification of conflict of laws rules, which are to be
found in the Treaties of Montevideo and the Bustamante Code. The method
of operation of the Conference is to prepare draft conventions for adoption
by member States at the sessions of the Conference. The Conference also
promotes the signature and ratification of conventions prepared by it and,
where appropriate, the incorporation by States of the terms of these
instruments into their national legislation. These activities distinguish the
Conference from the Rome Institute and from certain other formulating
agencies. While the earlier conventions deal mainly with family law, some of
the conventions adopted by the seventh to tenth sessions attempt to unify
conflict rules to international trade law. The most successful Hague
Convention pertaining to international trade law is the Convention on the
Law Applicable to International Sales of Goods of 1955. In 1958, The Hague
Conference concluded an arrangement with the United Nations similar to
that which exists between the Rome Institute and the United Nations,
providing for co-operation, co-ordination and exchange of information and
documentation. As in the case of the Rome Institute, this arrangement was
made pursuant to resolution4
In India, The Ministry of Overseas Indian Affairs and the National Commission
for Women, as a part of their efforts to counter fraudulent marriages by non-
resident Indians, finally succeeded recently in persuading the Government of
India to ratify the Hague Conference on Private International Law. India's
ratification of the Convention may facilitate the mutual recognition of court
orders of signatory countries on private law issues.
Inter-governmental organizations
The drafts prepared by the Institute formed the basis of conventions which
have been adopted by diplomatic conferences, the most notable being the
Convention relating to a Uniform Law on the International Sale of Goods
(Corporeal Movables) and the Convention relating to a Uniform Law on the
Formation of Contracts for the International Sale of Goods (Corporeal
Movables). They were concluded at the Diplomatic Conference on the
Unification of Law governing the International Sale of Goods convened by the
Government of the Netherlands and held at The Hague in April 1964. Draft
conventions of the Rome Institute relating to topics other than the sale of
goods likely to be considered by diplomatic conferences in 1967 include;
Apart from these proposals for the unification of particular topics of private
law, the Rome Institute is engaged in research into ways and means of
advancing the task of unification. It is, in particular preparing two studies:
one on methods of unification and harmonization of law, and the other on
measures designed to ensure uniformity of interpretation of uniform laws.
The United Nations has been engaged in activities in this field on a worldwide
as well as on a regional scale. The most important world-wide activities have
been on the subject of international commercial arbitration, industrial
property legislation and transit trade of land-locked countries. Activities on a
regional scale have been performed by the United Nations regional economic
commissions, notably in the areas of standardization of trade documents,
international contracts and commercial arbitration.
The United Nations has also instituted specialized agencies in the form of
The Amsterdam Treaty of 1997 which came into force in 1999 vested
legislative competence in the European Community (EC) in the areas of
international civil procedure and private international law by transferring the
Title on visas, asylum, immigration and other policies related to free
movement of persons into the Treaty on European Community (TEC). In
2009, the Lisbon Treaties, the Treaty on European Union (TEU) and the
Functioning of the European Union (TFEU) have inherited this competence
and even enlarged it to a certain degree.
Together they cover almost all major issues of international civil procedure
and they include a wide array of legal issues. They include:
5
• Regulation (EC) No 1347/2000, Brussels II Regulation 6, unified
jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and in matters of parental responsibility for
children of both spouses7.
Within only one year significant parts of the private international law
relevant to international business transactions have been unified. Many
regulations covering other areas of private international law will follow.
Future developments include:
The Study Group on a European Civil Code sets itself far more ambitious
task. It has responded to the Resolution of the European Parliament calling
upon to formulate a European Civil Code. This initiative combines the
alternative methods of questing for common principles and fundamentals in
national legal orders and the traditional methods as the final stage should
lead to adoption of a binding, directly applicable document. The form of the
instrument is, however, still discussed. Some authors are convinced that a
way of total unification of substantive private law is under the present
circumstances burdensome and almost closed, and therefore the Code ought
to go the time-tested way of common principles. Others look further and
assert that the EC has not enough legal power to adopt any complex civil
code. It would be necessary to limit the regulation only to contractual and
related issues hence this attempt would get stuck in a half way between the
unification and existing fragmented regulation in the national legal orders
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