“Private international law, then, is that part of the law which comes into play when the

issue before the courts affects some facts, events or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system.”
– Cheshire

In light of the above quote, discuss the emerging developments and expanding horizons
of Private International Law in the recent past.

Ans.

Private international law or choice of law as it is often called in other jurisdictions, has gained
more popularity in the recent times after the phenomenon of privatization and the world
becoming more interdependent. Considering this phenomenon the statement made by
Cheshire, despite being decades old has more relevance than ever, private international law
should not be treated as a separate law like contracts or torts. Private international law
encompasses several areas of law, it can be applied any laws like law of contracts, family,
bankruptcy, marine law, etc.

In all these cases with increased globalization and transnational trade there will be increased
instances of disputes in one jurisdiction which will have a very close nexus in terms of facts,
rules, laws, etc with the other jurisdictions. This reason for this is quite simple, when there
are two contracting parties from different jurisdictions and the dispute clause sometimes
provides clarity over place of resolution of dispute, the governing law of the contract, etc. in
all such cases there will be minimal interplay of private international law, as there is no
conflict the choice of law as it is mutually agreed upon.

But the true relevance of private international law comes into place when the contract is silent
on the dispute resolution clause, or if there is an issue regarding the interpretation of clauses
of contract which deal with choice of law. In all such cases, there are numerous principles of
private international law which will help the courts decide which law to apply. It is very
common in the sphere of private international law to have an English court applying the
American substantial law. The courts will analyse the case and apply the various recognized
principles of private international law like, lex fori, lex loci contractus, proper law of
contract, etc.
The reasoning behind why Cheshire’s statements still hold true despite being decades old is
because, even today when there is a situation arising, which involves two parties in two
jurisdictions, the courts even before deciding the case on merits will first investigate where
the jurisdiction lies, which laws to apply. The courts must look into and answer this question
because the issues or facts as Cheshire has stated will be very closely related to another
jurisdiction.

There are numerous interesting contemporary cases in private international law dealing with
very niche areas, like environment law, corporate social responsibility, child abduction, etc.
In the case of Kiobel v. Royal Dutch Petroleum, a US Supreme court judgement, which delt
with extraterritorial applicability of alien torts statute of USA. The petitioners in this case are
a group of Nigerian nationals who sought refuge in the USA and have filed a case against
British and Dutch petroleum corporations contending that they have aided the Nigerian
government in committing human rights violations and filed a punitive class action law suit
in the US District Court for the Southern District of New York, which has dismissed the
petition, this was later appealed in the Court of Appeals for the second circuit, which has also
dismissed the suit. Finally the case has reached the gates of the Hon’ble US Supreme Court,
which has unanimously held that there is a presumption against extraterritorial applicability
of the US ATS statute.

This presumption is derived from the conservative cannon rule of interpretation followed by
the US courts to avoid conflict of laws between jurisdictions. However, there is an exception
to this presumption of inapplicability of US law in foreign jurisdictions, this is called the
touch and concern test, which the court held the present case didn’t pass through with
sufficient force, for this reasoning the US Supreme Court has dismissed the case.

The above citied judgement shouldn’t be taken as a drawback or lagging of private

international law but rather the one which has enough reason, and a judgement which puts the
extreme interpretation of choice of laws in check. If the courts allow a completely different
jurisdiction to apply its own laws to an issue whose cause of action arose in the jurisdiction
other than where the case is being tried in, it will lead to chaos and confusion and will violate
the principles of state sovereignty.
There have been so much positive developments in the area of private international law, this
has
happened to a series of conventions relating to PIL, the most important of all being the Hague
conventions, The cases tried by various courts recognizing a foreign law. However, the realm
of
private international law, despite its growing significance might not take the centre stage in
international dispute resolution, as it will be overshadowed by Arbitration and other forms of
ADR. Which isn’t a bad thing because institutional arbitrations will reduce the case burden
on
existing legal infrastructures around the world. In my opinion the relevance of Private
International
will certainly increase compared to before, however its role must be a balanced one.