MARIANO GÁLVEZ UNIVERSITY OF GUATEMALA

FACULTY OF SOCIAL AND LEGAL SCIENCES

UNIVERSITY CENTER, SOLOLÁ
LIC. PABLO CALDERON ORELLANA

SCHOOLS OF INTERNATIONAL PRIVATE

LAW

STUDENT: EDUARDO ELISEO PUÁC DIONISIO

CARD: 5010-13-2277
TENTH CYCLE
PRIVATE INTERNATIONAL RIGHT
 INTRODUCTION

The present work is a compilation of the doctrine of the Statuary schools of

Private International Law, in which the different philosophical currents of each of
them are explained, likewise it can be noted that each of them has contributed
to what is today day is the development of Private International Law, here you
can see how the evolution has been from the emergence to what we know
today as the maximum law in international matters such as the Bustamante
code.
 INDEX
1. SCHOOLS OF PRIVATE INTERNATIONAL LAW:......................................................3
A. ITALIAN STATUTORY SCHOOL OF THE 14TH CENTURY..................................3
B. 16th century FRENCH STATUTORY SCHOOL:.......................................................4
C. DUTCH STATUTORY SCHOOL 17th century:.....................................................4
D. FRENCH STATUTORY SCHOOL S. XVIII:...........................................................5
E. MERIT OF THESE FOUR SCHOOLS:.......................................................................5
2. MODERN SCHOOLS 19TH CENTURY:........................................................................6
A. EXTREMIST SCHOOLS: ANGLO-AMERICAN SCHOOL.......................................6
B. MODERN ITALIAN SCHOOL:.....................................................................................7
3. INTERMEDIATE SCHOOLS 19th century:....................................................................7
A. ANTOINE PILLET SCHOOL:.......................................................................................7
B. VON SAVIGNY SCHOOL:............................................................................................8
C. SCHOOL OF HAVANA OR SÁNCHEZ DE BUSTAMANTE:...............................9
CONCLUSIONS......................................................................................................................12

1. SCHOOLS OF PRIVATE INTERNATIONAL LAW:

A. ITALIAN STATUTORY SCHOOL OF THE 14TH CENTURY
 Bártolo de Sassoferrato is one of its main exponents. They classified the
laws into:

a) Territorial: law of the place that does not have extraterritorial effect (assets)

b) Personal: they follow people wherever they are and have an extraterritorial
nature. (Status and capacity)

They establish that the nature of the law will determine whether or
not it has extraterritorial effect and there must be equity and justice, trying to
establish a fair balance between territoriality and extraterritoriality.

A distinction is made between:

a) Form: an extraterritorial law can be applied. Lex causae.

b) Background: that is territorial. Lex fori.

It is an eminently casuistic school, solving problems according to

what is most fair.

Here we find the principles "lex locus regit actum" and "lex locus
rei sitae"

B. 16th century FRENCH STATUTORY SCHOOL:

Eminently territorialist school that had Bertrand D'Argentré as one

of its main exponents.

It was born as a product of the political and social reality prevailing

in France. They considered that territorial law should always be applied and that
foreign law was applied as an exception.

D'Argentré divided the statutes into:

a) Real: refers to goods

b) Personal: refers to people in terms of their capacity and status.

c) Mixed: They refer to both people and property and that priority should be
given to property.

C. DUTCH STATUTORY SCHOOL 17th century:

Territorialist school, reflection of the war of independence against

Spain that ended with the Peace of Westphalia in 1648.
 They were great merchants and viewed foreigners with distrust.
Some of its main exponents are Christian de Rodenburgh and Pablo Voet
(pronounced fut). They say that because of the great trade they carried out,
they were forced to apply foreign law. There is difference in religions which
causes problems in matters of marriage.

Voet says foreign law should be applied out of courtesy . School of

courtesy, although the school is territorialist, the only exception is that courtesy
is a voluntary act, not of reciprocity and for commercial convenience.

Criticism made:

National sovereignty is being attacked by applying a foreign law

and the concept of "courtesy" is not a legal term.

D. FRENCH STATUTORY SCHOOL S. XVIII:

The courts in France took the opinion of Louis Froland to resolve

their cases since the statutes were divided into:

a) Real: territorial assets

b) Personal: person, extraterritorial.

c) Mixed: which placed emphasis on personal statutes.

E. MERIT OF THESE FOUR SCHOOLS:

They were the founders of the Dº IP The most important being the
Italian statutory school, which although it was the first was the most elaborate
and whose principles and norms are maintained to this day, especially its
difference in substance and form.

The important thing about the French school is its difference

between personal and real statutes and the Dutch one, which has had an
influence on the Anglo-Saxon school since it sought why a court should apply
foreign law.
 2. MODERN SCHOOLS 19TH CENTURY:
A. EXTREMIST SCHOOLS: ANGLO-AMERICAN SCHOOL.

It was born in the United Kingdom but is developed in the United

States, being the most important country to help develop this school.

The US was forced, by its federal system, to solve Dº IP problems

The English, on the other hand, were the most backward in this matter
within Europe.

The English welcome the Dutch statutory school with sympathy

since when Mary Stuart married William of Orange and both countries were
Protestant, they did not like anything that came from outside.

These rules were passed on to America, which, upon becoming

independent and uniting the different Spanish and French states, needed to
resolve the conflicts of laws that arose.

Harvard professor Joseph Story proclaims the independence that each

State has in matters of IP, considering that the law is by essence territorial and
that each State in each exceptional case can apply foreign law out of
"courtesy."

a) Traditionalist Harvard or acquired rights school:

He adheres to Story in that foreign law is applied out of courtesy and

points out that the only thing the State does is recognize rights acquired abroad,
thus overcoming the problem of not applying foreign law but recognizing foreign
rights.

Its main exponents are Dicey, Huber and Beale.

b) Yale realistic school or mere expectation:

Cook and Lorenzen are its main exponents. It is not necessary to

recognize rights acquired abroad, but rather they must be recognized in the US,
with the lex fori court (of the place) being the one that allows the recognition of
said rights acquired abroad.

B. MODERN ITALIAN SCHOOL:

Main exponent: Estanislao Mancini.

It is the antithesis of the Anglo-American school since laws are

personal and by exception they are territorial and must regulate people
wherever they are.

There is a large amount of Italian emigration to America and thus

the Italian could remain linked to the motherland.

Mancini takes his theory from paragraph 3 of Art.3 of Napoleon's

Civil Code, in that the State and capacity of the French are governed by French
law even if they are outside France. But it establishes that there are certain
limitations to the extraterritorial application of the law:

 Public order: There are certain institutions that cannot be accepted even
if they carry their law with them because they threaten public order, for
example: polygamy.

 Lex locus regit actum:Despite what Art.3 said, if an Italian wanted to

conclude a contract, for example in France, he had to do so in
accordance with French law.

 Lex locus rei sitae: applies to real estate.

 Autonomy of will: The parties are sovereign to determine that a certain

law applies.

Criticism of this school:

Its exceptions were almost the general rule, it had great influence
in Italy, France, Belgium, Holland, Germany.

3. INTERMEDIATE SCHOOLS 19th century:

A. ANTOINE PILLET SCHOOL:
 He is the most notable of the French writers of the Dº IP, he was
concerned with:

- Foundation of foreign law application.

- What laws have extraterritorial application and why a State accepts this.

According to Pillet, an Eº accepts the application of a foreign law

because it owes "respect" to the sovereignty of a country.

Pillet distinguishes:

a) Generality : territorial laws. They apply equally to everyone within a space

and are the guarantees of social order.

b) Permanence : extraterritorial laws. They are the laws that benefit the
individual and that follow him wherever he goes.

The merit of this school is to have given the personal status a

"permanent" character so that it is not mocked by simply crossing the border.

Criticism of Pillet: Such a sharp division of general laws cannot be made

because permanent norms can benefit society and general norms can benefit
individuals.

B. VON SAVIGNY SCHOOL:

He considers that all legislation has its origin in Roman Law and is
based on Christian principles.

He believes that there is no reason why a court would have any

objection to applying a foreign law from the civilized world, from the "legal
community." You cannot refuse because you are obliged, therefore you must
apply what is most convenient.

Give certain rules:

- Status and capacity: the fairest law is that of domicile, because

nationality is fortuitous as is the place where it is held.
 - Assets: Both furniture and real estate must be governed by the law of the
place where they are located.

- Contracts: a distinction is made between

a) substance: the court will determine it, based on the law of the place
where it produces effects.

b) form: law of the place of its celebration.

- Succession: it is the first that says that it must be governed by the last
domicile of the deceased.

- Crimes: must be governed by the criminal regulations of the place where

the crime was committed.

- Criticism of Savigny: He is based on the community of law but the Eº

have been incorporating different norms and their principles have
changed.

C. SCHOOL OF HAVANA OR SÁNCHEZ DE BUSTAMANTE:

Antonio Sánchez de Bustamante y Sirvén (Havana; April 13, 1865

- August 24, 1951) Cuban lawyer, jurist and politician

He promoted the existence of a common regulation for America on

private international law. This is why during the 6th Pan American Congress
held in Cuba in 1928, specifically in the final document, the Havana Treaty of
the Code of Private International Law (also known as the Bustamante Code)
was attached in the annex.

In 1908 he was appointed member of the Permanent Court of

Arbitration in The Hague and in 1921 he was appointed judge of the Permanent
Court of International Justice established by the League of Nations. Likewise,
he was the first president of the National Academy of Arts and Letters of Cuba.

In his work we find the presence of the most representative ideals

of Roman legal-philosophical thought. The acceptance of the Ius-Gentium as
the right of war makes this thinker affirm that the concept of war is only great
when it defends or engenders the recognition of legitimate rights.

“The Law of Nations is a right of war, because it ennobles it and raises it

to the height of a judgment from God, but it is above all a right for the loyal and
peaceful organization of the world, which uses war as an instrument.” of peace,
defense and justice, although in the great crises of history it seems to cloud the
process, like clouds over the sun, the time necessary for our eyes to miss it and
to recreate and become ecstatic better when the light disappears. ,
inextinguishable that spreads everywhere”

The Bustamante Code asks why foreign laws are applied and why
a space intends for its own rules to be applied abroad.

He says that within each space the authorities do not have to

oppose the application of a foreign law since they have a common origin.

A person abroad has laws that are:

a) Imperatives: for example family

b) Supplementary or voluntary: in a country subject to foreign legislation,

they are related to contracts.

c) Inapplicable: There are certain laws that follow the national even outside
his country, making the laws of said state inapplicable.

Bustamante Code Classification:

a) Law of the person based on their domicile or nationality who always follows
it even if they move from one country to another. Personal or international
public order. (Extraterritorial effect)

Characteristics:

- They are not territorial

- They don't apply to everyone.
- apply outside the country
 - personal laws
- imperative laws (they do not depend on the will, they cannot be disposed
of)
Effects:

- exclude the application of foreign law

- the parties cannot change it

b) Law applies equally to all who reside in the territory, whether national or not.

Territorial, local or internal public order. (Territorial effect)

Characteristics:

- It applies to all inhabitants of the republic, whether Chileans or transients.

- Territorial
- not personal
- imperative
Effects:

- exclude application of foreign law

- cannot be changed by the parties
c) Voluntary or private.

-the parties choose the applicable law

Art. 3. For the exercise of civil rights and for the enjoyment of identical individual
guarantees, the laws and rules in force in each Contracting State are
considered divided into the following three classes:

YO. Those that apply to people based on their domicile or nationality and follow
them even if they move to another country, called personal or internal public
order.

II. Those that are equally binding on all those residing in the territory, whether
national or not, called territorial, local or international public order.
III. Those that are applied only through the expression, interpretation or
presumption of the will of the parties or one of them, called voluntary or private.

CONCLUSIONS
1. Private international law (DIP) is a set of legal norms of private law that
aim to determine the applicable legal norm in cases of simultaneous
validity of legal norms of more than one state that seek to govern a
specific situation.
2. Private international law has the formal purpose of indicating the spatial
validity of the legal norm of more than one state, determining which legal
 norm is applicable, and is not assigned the role of establishing the
content of the applicable legal norm, therefore, It is up to the DIP to
decide which legal norm should prevail, to establish the spatial validity of
the legal norm when a legal situation is linked to the legal systems of
more than one sovereign entity.
3. Furthermore, the DIP deals primarily with the conflict of laws and as
complementary topics it has:

a) The study of the connection points (nationality)

b) The study of prior issues (legal status of foreigners)
c) the conflict of jurisdictions