International Law

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International Law

The body of law that governs the legal relations between or among states or nations.To qualify as a subject under the traditional definition of international law, a state had to be sovereign: It needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjects of international law, because they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under international law. so there are two types of international law which are public and private international law.

Public International Law:

Public International laws have been designed to examine the relationships between the countries and states and they govern the binding rules of the international community to avoid any dispute. Public International laws generally involve the treaties and the agreements that are signed by the countries with their mutual consent. These public international laws include federal laws, criminal laws, human rights laws, maritime laws, refugee laws, the law of war and the laws that are created with the help of the international treaties by the nations. When a conflict arises, these public laws help to resolve these conflicts.

 

Private International Laws:

Private international laws are the rules that are used to resolve the dispute between private individuals who cross international boundaries. When a dispute exists between private individuals of two countries who have their different legal systems, private international law comes for the help of people. It helps to determine a court, and it also decides which country’s law will be used to solve the matter. It is called a private international law, but in a real sense, it is the body of domestic law. These laws have been designed to minimize international legal disputes, and they prove to be very effective.

Private international law refers to that part of the law that is administered between private citizen s of different countries or is concerned with the definition, regulation, and enforcement of rights in situations where both the person in whom the right inheres and the person upon whom the obligation rests are private citizens of different nations. It is a set of rules and regulations that areestablished or agreed upon by citizens of different nations who privately enter into a transaction and that will govern in the event of a dispute. In this respect, private International Law differs from public international law, which is the set of rules entered into by the governments of various countries that determine the rights and regulate the intercourse of independent nations.  

  Difference between Public International Law and Private International Law

 PUBLIC INTERNATIONAL LAW

·         Public international law comprises customary international law, treaties, conventions, and legislation passed by international agencies such as the United Nations.

·         Its effectiveness lies only in countries voluntarily complying with its rules and, at least in a “dualist” legal system like Australia’s, it cannot be enforced directly unless implemented through legislation passed by a competent parliament.

·         Public international law is universal, in the sense that the rules of public international law are the same regardless of where in the world they are considered.

PublicInternationallawisenforcedbyinternationalpressureandfearforexample–breakageofdiplomaticrelations,sanctionsetc.

 

PRIVATE INTERNATIONAL LAW

·         Private international law has been recognized as an aspect of municipal law. Its legal sources are now constitutions, statutes and, in common law countries, judicial decisions. The ordinary courts can therefore enforce it.

·         Private international law regulates legal relations between private persons and corporations. It therefore deals with problems encompassed by different departments of the private law, such as family law, contract, tort, property and corporations, but only to the extent that these problems also involve a foreign element.

·         Not universal because municipal law frequently differs from country to country and even from state to state.

PrivateInternationalLawisenforcedbytheconcernedStateexecutive.

 

Three Persistent Issues

 JURISDICTION which court has jurisdiction to deal with the matter? This requires a connection between the subject matter and the inherent jurisdiction of the court. The impact of the ECHR on jurisdiction in private international law is examined in this chapter. It is demonstrated that the impact of the ECHR is limited to Article 6(1) ECHR. This right may be invoked by both plaintiffs and defendants in international civil proceedings. Plaintiffs may rely on the right to access to a court, which has been derived by the Court from Article 6(1) ECHR. The right of access to a court not only plays a role in international proceedings in the event of negative jurisdiction—where there is no court available—but, under certain circumstances, a plaintiff might also rely on this right where there is more than one court available. Defendants in international proceedings can also rely on Article 6(1) ECHR. Article 6(1) ECHR may be invoked against the assertion of jurisdiction, where jurisdiction is based on exorbitant or inappropriate grounds. It has been argued that the Court’s interpretation of the right to a fair trial would appear to allow for a due process-like role with regard to the defendant’s right to a fair trial. Finally, Article 6(1) ECHR may additionally have a role with regard to strategic litigation. In international civil proceedings, it is perfectly normal for litigants who have a choice between different competent courts to choose the one most favorable to their cause. However, such strategic litigation might lead to abuse. This chapter examines whether Article 6(1) ECHR can function as a brake on strategic litigation where this becomes abusive.

APPLICABLE LAW or choice of law  is applicable to the matter? the modal choice of law rule. Modal choice of law rules provide choice of law-specific ex ante regulation for choice of law elements. For example, a rule that provides that a choice of law agreement must be in writing is a modal choice of law rule. Choice of law elements may be subject to modal choice of law rules, substantive law or judicial discretion – or a mix of all three. The article unveils the different purposes served by modal choice of law rules. It demonstrates that modal choice of law rules are capable of importing both conflicts-related and substantive considerations into the choice of law process.Choice Of Law

In its choice of the applicable law, the court that exercises jurisdiction determines which law to apply to a case that involves foreign parties, foreign transactions, or a number of foreign elements. In a simple world, the court would always apply its own law, the law of the forum (known in Latin as the lex fori). Indeed, some modern methodologies, particularly in the United States, favour the lex fori approach.

 FOREIGN JUDGEMENTS   The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.

In English law, there is a clear distinction between recognition of foreign judgments, and enforcement of foreign judgments. Recognition means treating the claim as having been determined in favour of one of the litigating parties. This is an acknowledgment of foreign competence and of the settling of a dispute, known as res judicata.[1] Enforcement, by contrast, is the implementation of the judgment   

 

Generally; Both public international  law and private international law are divided from International law . The  national  primary sources of Private International Law. Private International Law is also embodied in treaties and conventions, model laws, legal guides, and other instruments that regulate transactions. Private International Law deals with a variety of topics, such as (international) contracts, torts (lex loci delicti), family matters, recognition of judgments, child adoption and abduction, real property (lex rei sitae), intellectual property.

 

 

Reference

Crawford, E. B., and carruthers, J. M. , International private law, a Scots perspective Edinburgh, W . Green, Thomson Reuters, 2015

Van calster, G . European. Private International law, Oxford, Hart publishing 2016

Collins Perdue ,w. Procedure and private International law, Edward Elgar publishing 2017

 

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