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public international law and private international law

Research · October 2020

DOI: 10.13140/RG.2.2.25037.46568

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 Tanta University
Faculty of law (English section)
Department of private international law
Academic year (2019-2020)

Private international law & Public international law

Supervised by: Professor. Dr/ Gamal M. Elkordy

Professor. DR/ Baleegh Hamdy
----------------------
Prepared by / Mohmed Ahmed Ismail
Introduction:
First, we must discuss some concepts of public international
law and private international law

Private international law can be defined as the framework

composed of conventions, protocol, model law, legal guides,
uniform documents, practice and custom besides to other
documents and instruments1.
While Public International Law is A law that contains legal
rules, which govern the nature of dealing Members of the
international community, and the relationships that exist
between them,2

Private international law is that part of a legal system’s

domestic law which is primarily concerned with disputes of a
private nature, whereas public international law is concerned
with regulating relations between sovereign States3

Public international law should not be confused with Private

International Law, which is private international law concerned
with the choice of the applicable law when a foreign element

Prof/dr. Gamal M. ELKORDY - Lectures on private international law – 1

page 14
Ruwanthika Gunaratne - Public International Law - 2008 2
A treaties on the conflict of -FRIEDRIOH CARL VON SAYIGNY 3 -
law -1880- page 11
is involved or recognition of foreign judgements or laws4, in
the other hand the function of public international law is to
regulate the relationship in the international community.
The Private International Law existed because of the world is
composed of several separate municipal systems of
law.

Despite the term ‘international’ being part of its nomenclature

the only international aspect is the foreign element.
Private International Law, however, has a universal angle, is
basically a part of municipal law. In this way, every nation
has its own private international law5
Public international law:
It is a part of external public law, Enacted and legislated by
the international will6.
His subjects are international relations and his people, and
they are states and other international people.

The object:

1-The difference between public international law and

private international law

Prof/dr. Gamal M. ELKORDY - Lectures on private international law- 4

page 18
-FRIEDRIOH CARL VON SAYIGNY- A treaties on the conflict of law -5
1880- page 68
Jan Anne Vos - The Function of Public International Law – page 109 6
There are evident contrasts between private international law,
or conflict of laws, and public international law.

1-The last is fundamentally concerned with the rules that

govern relations between sovereign States.
comprising, in general, of customary and convention rules
which bind States in their interrelations.
The former, however, is designed to regulate disputes of a
private nature7.

2- Private international law is that part of municipal law

which only comes into play when a dispute has a connection
of some kind with one or more foreign legal systems8.

Every modern legal system has its own rules of private

international law, and they differ from one another as much
as any other branch of domestic law.

- Relationship private international law is like public

international law, the law in them exceeded the territory of
one state to another9, and that the international conventions
are the source of both laws, as well as international custom
and international justice.

Rostarn Josef Neuwirth – Public/Private International Law Distinction- - 7

march/2000 – page 30
Prof/dr. Gamal M. ELKORDY - Lectures on private international law – 8
page 24
Prof/dr. Ahmed Abdl hameed Ashoush- private international law – 9
page 215
3- On the one hand, however, the laws are distinguished
from each other by the rules of public international law
Addressing states as persons of public international law,
While the rules of private international law are addressed to
persons of private law.
That is, for individuals or legal persons defined by internal
law.

-----------------------------------------------

2- The relationship of private international law to public

international law

The views of legal jurists on the relationship of private

international law to public international law are varied from
considering private international law as an essential part of
public international law to denying any connection whatsoever
between them10.

The doctrines explained the relation between them as

follows:

1- The first theory is “law of nation doctrine of private

international law” propose that the rules of private
international law are inspired from public international law11.
This doctrine based on the writings of Savigny in the

John R. Stevenson – Colombia law review – The relationship of public - 10

international law to private international law -may/1952 – page 564
Arthur Nussbaum - Principles of Private International Law 11
nineteenth century, Savigny found evidence in the practice of
an “ international common law of nations” is designed to
ensure that in private international law cases the same legal
relations would produce the same decision regardless of the
forum in which the case was litigated.

2-The second proposition has denied any connection at all

between them, the legal scholars who support this trend
assume that the rules governing choice of law and jurisdiction
are rules of municipal law exclusively, and the foreign law
or foreign judgment can only be enforced by permission of
the territorial sovereign.
They did not regard public international law as a law or
legal rules, because they are not command proceeding from
any sovereign and have lack of binding force.
On the contrary, private international law is a legal rule,
binding and proceed from the sovereign of a specific country.
In their view private international law does not relate with
public international law at all.

3- The final doctrine ,which is supported by many jurists,

takes a middle position between the previous theories, it
claims that some objects of private international law are
closely related to public international law, and other
aspects of private international law haven’t any connection
with public international law.
As explained, there is a connection between private
international law and public international law, we will present
some instances of this relationship between them:

A- Unification of private international law through

international treaties

As a result of the increased interdependence between states

and the interactions between their nationals, private
international law faces new problems.
The basic culture and the way of thinking differences among
the countries of the world, it is difficult to achieve unification
of all private international law.
International convention is considered an essential part of
public international law,
There are two types of international treaties:
1- The first group is the treaties which are made to unify
the rules of the private international law in the member
states, for example: Hauge convention in 1955 on the law
subject to international sales of goods12.
2- The second group is the convention made to unify
substantive rules which should be applied directly by the
court of the member state; for example: The United Nation
Convention in 1980 on the international sales of good13.

Prof/dr. Gamal M. ELKORDY - Lectures on private - page 39 12

international law
The aim of the CISG is to produce a new, uniform, and fair system for 13

contracts for the international sale of goods. Thus, the CISG provide a
The international convention is not only the sole way to unify
the principles and rules of private international law but also,
there is:
The International Institute for the Unification of Private
Law the International Institute for Unification of Private
International Law, which is commonly known as
UNIDROIT14,
If the rules and regulations are unified, so there wouldn't a
conflict of judgments on the case containing foreign elements
by various courts.
Second, unifying the laws will resolve the problem of the
slow pace of litigations in the courts
Third, the field of globalization and individuals get involved in
personal and commercial dealings more usual, as a result of
this, if there is unifying so there would be less conflict, ,
then it would be easier to settle the disputes in the various
courts 15.

B- Principles of private international law applied in

international tribunals.

The private international law principles and rules are applied

by international courts and those applied in municipal

great help to introducing certainty in commercial market and lowering

transaction fees.
European law institute - EU institution and international organization 14
Rishi Agarwal - Unification of Private International Law - Amity 15
University Dubai – page 14
courts16. The private international law principles and rules are
applied by international tribunal in determining its jurisdiction
generally find their source in its treaty or agreement.

C- Functional commonality.

A third major connection between public international law and

private international law that can be highlighted is a
connection of functional commonality.
Public international law includes so-called rules of
‘jurisdiction’, which determine the permitted scope of a
state’s exercise of regulatory authority.
A state may, for example, criminalize conduct in its territory,
or the conduct of its nationals outside its territory.
In the absence of a connection of territory or nationality,
states may be able to rely on universal jurisdiction for certain
matters which are considered to be a concern for all states.

- Conclusion:

The answer to the question of the relationship and difference

between Public international law and private international law
are more complex.
Despite this, we tried to define the concepts , concentrate on
the function explain and illustrate some important points and

-Abla J Mayss- Principles of conflict of law- December/ 1998- page 4216

topics in the context with both the relationship and difference
between these branches of law, for instance the influence of
both branches on each other and the several connection
between them.

- The references:

- Prof/dr. Gamal M. ELKORDY - Lectures on private

international law – page No. 7,8,14,18,24,39.

- John R. Stevenson – Colombia law review – The

relationship of public international law to private
international law -may/1952 – page No. 11.

- Rostarn Josef Neuwirth – Public/Private International

Law Distinction- march/2000 – page No. 30.

- Abla J Mayss- Principles of conflict of law- December/

1998 – page No.42

- FRIEDRIOH CARL VON SAYIGNY- A treaties on the

conflict of law -1880 – page No.68.

- Prof/dr. Ahmed Abdl hameed Ashoush- private

international law – page No. 215.

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