UNIT 20:

PRIVATE
INTERNATIONAL LAW

English for the Legal Profession IV

Snježana Husinec, PhD; shusinec@pravo.hr 1
 Consider the following situations and
explain the difference.
• An Englishman and his wife are British citizens, domiciled and
resident in England, went through a ceremony of marriage in
England. Later, the wife petitions an English court for a divorce. The
spouses are still domiciled and resident in England.

• A British couple married in France, domiciled and resident in England

at the time of marriage. Later on the husband petitions for divorce.
At the time of his divorce petition his wife is domiciled and resident in
France.
• DOMICILE - the country which a person officially has as their permanent home, or has a substantial
connection with.
• RESIDENT – a person is considered a resident if present in a country for 183 days or more per tax
year.
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International law vs. National law
Think about the differences between national and
international law concerning:

A) the territory on which it is applied

B) the parties involved
C) the sources

How would you subdivide the international law according

to their characteristics?

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 International law
= consists of rules and principles which govern the relations and
dealings of nations and other international entities with each other
PUBLIC PRIVATE SUPRANATIONAL
INTERNATIONAL LAW INTERNATIONAL LAW LAW
(Law of nations) (Conflict of Laws)

relations between conflicts between private -the law of supranational

several nations or persons, natural or organizations (regional
-nations and the citizens artificial, arising out of agreements -
or subjects of other situations having European Union law -
nations relationship to more than the first and only
(sources: customary law one nation example of a
(sources: a branch of supranational legal
and conventional
internal law – national and
agreements – treaties, framework)
customary law)
conventions, charters
judicial decisions , judicial
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writings)
Consider the following case and
answer the questions:
An English and a French litigant have dispute over a
breach of contract concluded in Italy to be performed in
Spain.

1. In your view, which legal problems would arise in such

a situation?
2. Which legal issues would have to be solved?
3. Does this matter belong in the realm of public,
private or supranational law?

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 Private internatinal law / Conflict of
laws
• A part of national law which establishes rules for dealing with
cases involving a FOREIGN ELEMENT.
• It is concerned with cases in which the parties or other relevant
issues are connected with more than one country. (The conflict arises
from the difference between legal systems.)

• What do you think can constitute a foreign element?

• Find examples in the first paragraph of the text.

• Why ist it classified as PRIVATE and why as INTERNATIONAL law?

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The term ¨country¨in private
international law
COUNTRY = any territorial unit having its own sparate
system of law (no matter whether it consitutes an
independent state politically)

• Decide which of the following territorial units can be

referred to as ¨country¨ in private international law?

UK, Ontario, California, Croatia, Scotland, Wales,

Australia, Canada, England, Ireland, Northern Ireland

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Issues to be decided in conflict of
law cases

• What issues, do you think,

should be decided
by conflict of law rules?

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 Conflict of Laws
Addresses the following questions:
1) JURISDICTION - In which legal jurisdiction may a case be heard?
(determining whether the proposed forum has jurisdiction to
adjudicate and whether it is the appropriate venue for dealing with
the dispute)
2) CHOICE OF LAW - The law of which jurisdiction(s) should be applied
to the issues in the case?
- determining which of the competing state's laws are to be applied to
resolve the dispute – choice-of-law rules (zakoni o rješavanju
sukobu zakona)
- (the court first must settle these conflict of law questions before beginning to hear the
merits of the case and deciding on a resolution to the dispute)
3) RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS -
How a foreign judgment will be enforced?

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Areas of law involving conflict of laws
1. Law of obligations (contracts, torts)
2. Property and succession (property inter vivos,
succession, matrimonial property relations)
3. Family law (marriage, divorce, children)

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The stages in a conflict case
1.The court must first decide whether it has jurisdiction and, if so,
whether it is the appropriate venue resolving the issue of forum
shopping
2.The characterization of the cause of action into its component
legal categories which may sometimes involve an incidental
question
3. Each legal category has one or more choice of law rules to
determine which of the competing laws should be applied to
each issues
4.Application of selected laws to reach a judgment.
5.The successful party must enforce the judgment which will first
involve the task of securing cross-border recognition of the
judgment.

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Choice of law rules

Courts faced with a choice of law issue have a two-stage

process:
1. the court will apply the law of the forum (lex fori) to all
procedural matters

2. it counts the factors that connect (connecting factors)

or link the legal issues to the laws of potentially
relevant states and applies the laws that have the
greatest connection

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e.g.
-the law of nationality (lex patriae) or domicile (lex domicilii)
will define legal status and capacity,
-the law of the state in which property is situated (lex situs)
will be applied to determine all questions of title,
-the law of the place where a transaction physically takes
place or of the occurrence that gave rise to the litigation (lex
loci actus) will often be the controlling law selected when the
matter is substantive,

(In any case PROPER LAW will bi applied!!!

Proper law = the law which seems to have the closest and most
real connection to the facts of the case, and so has the best
claim to be applied (US the most significant relationship test is
conducted)

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 Examples of choice-of-law rules - Croatian
Private International Law Act 2019
MARRIAGE – Article 31
The law governing the conditions under which a marriage may be entered
into is, for each person, the law of the state of which he is a citizen at the
date the marriage is entered into.
…
DIVORCE – Article 36
The law governing divorce is the law of the state which both spouses
choose. They may choose one of the following laws:
1. The law of the state in which both spouses have the habitual
residence at the time of choice of law;
2. The law of the state in which the spouses had their joint habitual
residence, if one of them is still not in this state and has habitual
residence, or
3. Croatian law 14
Case study 1

A who has a French nationality and residence in Germany

B who has American nationality, domicile in Arizona, and
residence in Austria
C a Swiss national, owns property in Switzerland

a) A corresponds with B over the internet. They agree

the joint purchase of land in Switzerland, currently
owned but C, but they never physically meet.
b) They execute initial contract documents by using fax
machines, followed by a postal exchange of hard copies.
c) A pays his share of the deposit but, before the
transaction is completed, B admits that although he has
capacity to buy land under his lex domicilii and the law
of his residence, he is too young to own land under
Swiss law.
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Case study 2
Schwebel v Ungar [1964] 48 DLR (2d) 644
Supreme court of Canada

A Jewish husband and wife, domiciled in Hungary married in

Hungary. While they were emigrating to Israel, they found
themselves in Italy and the husband divorced his wife by ’gett’
(divorce document in Jewish religious law). Under the laws of
Hungary (their lex domicilii) and Italy, the religious form of divorce
was invalid, but it was recognised as effective by the law of Israel
where they acquired a domicile of choice.

Subsequently, the wife moved to Canada and, without

abandoning her Israeli domicile, went through a second ceremony
of marriage. The second husband petitioned for nullity alleging
that the marriage was bigamous.
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 Case study 2 - Ruling
The Supreme Court held the marriage to be valid.
- The main question was the wife's capacity to marry which,
under Canadian law, is determined by her lex domicilii, i.e. the law of
Israel at the time of the second ceremony.
- The incidental question was the validity of the divorce which was to be
determined either
- a) by their lex domicilii at the relevant time or
- b) by Italian law as the lex loci actus.
The court decided that the wife had the capacity to marry and that the
divorce was valid.
The judgment seems to suggest that the court decided both questions
by reference to the law of Israel as the law governing the main question.

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Reading comprehension:
• Read the text carefully and answer the questions
in ex. III.

• Do ex. IV and V.

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Vocabulary practice
Find in the text the following English terms and expressions
and translate them into Croatian.
• conflict of law rules
• to law of the domicile or habitual residence
• to raise a conflict of laws issue
• to exercise jurisdiction
• recognition and enforcement of foreign judgments
• to give effect to the judgments of foreign courts
• to have a judgment satisfied out of the defendant’s
assets
• to make a commitment to adhere to the principles of
the treaty
• consistency in treatment of cross-boarder issues
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Part Two:
Case Analysis: Hodas v. Morin
Consider the following terms:
• gestational surrogacy / gestational carrier
• intended parents
• gestational carrier agreement
• a prebirth order
• birth certificate
• applicable law
• nominal defendant
• forum shopping
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 Part Two:
Case Analysis: Hodas v. Morin
Read the introductory part of the judgment in the Hodas v Morin
case on p. 206-208 and answer the following questions:.
1. What is the legal issue in the case?
2. Who are the plaintiff and defendant?
3. Does a Probate and Family Court judge have authority to
issue prebirth judgments of parentage and to order the
issuance of a prebirth record of birth?
4. Which jurisdictions have a connection to the transaction?
How do the laws of connecting states regulate gestational
carrier agreements? Is there a conflict between them?
5. What is the court’s decision concerning the choice of law?
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Part Two:
Case Analysis: Hodas v. Morin

• In your opinion, if the choice of law provision has been

included in the contract by the parties, can the parties’
choice of law be contested by the courts?

• What is your opinion of the problem of conflict between

the parties’ choice of law provision and a state’s public
policy?
Which one should prevail?

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Act concerning the resolution of conflicts of laws with the
provisions of other countries in certaing matters
(Zakon o međunarodnom privatnom pravu 2019)
CROATIAN PRIVATE INTERNATIONAL LAW ACT

• Study the following case

Croatian couple married in France, domiciled and resident in
Croatia at the time of marriage. Later on the husband petitions
for divorce. At the time of his divorce petition his wife is
domiciled and resident in France.
• and do the following:
A) Characterize the cause of action into its legal components (legal elements of
the case; the questions that need to be answered)
B) Determine the choice-of-law rules for each element
C) Determine the connecting factors for each rule (by which national law
should each question be answered)
D) Use Part II (APPLICABLE LAW) Chapter VII (Family law) of the Croatian
Conflict of Laws Act and try to answer some of the questions. 23