Author: Stelios Bitzilekis
Connect with Stelios
Date of Publication: 26/05/2023
International private law, also known as conflict of laws, is a system of laws and legislations. In particular, it concerns cross-border legal issues and disputes. Such issues involve people from different nationalities or subjects operating in different countries.
The main question when it comes to international civil law is which specific law will be used to solve a multinational dispute. For example, two businessmen from Germany decided to establish a newfound company under German law. However, their financial activity is in Spain. What happens if a legal dispute of any sort occurs will the German or Spanish law be enforced?
In cases with various nationalities involved it is possible for a judge to use foreign law in order to resolve a case. In the example above a german judge could use spanish law and a spanish judge german law in order το make a decision. Therefore, the judges make the decision of which law to apply based on the rules of their own national civil law.
Process and legal path in order to make a decision
There are three kinds of rules in every country’s legal system that provide solutions in disputes of international importance:
Connection rules
These types of rules are part of each country’s civil law and they indicate which law will be enforced in a multicultural case. Connection rules indicate the origins of law (eg. Spanish , Greek ,Italian, French etc.) that ought to be enforced based on different terms. Some of them are nationality, place of permanent or usual residence, place of economic activity.
Example:
Α married couple decides to break up. The husband is from Greece, the wife is from Italy and they live permanently in Spain. The husband brings the case in a Greek court and the Greek judge, according to Greek private international law, uses the Spanish law. This way, they resolve the difference. In this case the superior term that indicates the law is that of the place of their common permanent residence.
Important rules of international law
This type of law provides the solution directly and doesn’t just indicate the law that will be enforced. Additionally that means that a dispute is solved directly by the court where the case is brought upon using domestic law. Therefore, courts in such cases enforce their own national law, the law of the judge.
Rules of immediate application
Like the important rules, they also directly solve matters with international importance using domestic law. The difference is that these types of rules are more strict and only apply in matters of crucial national importance. Some examples are tax policy, labor law, ethnicity matters and matters of public order. In such cases, it is obvious that no foreign legislation can be used as it could occur that fundamental rules are violated.
General Rules Concerning Transactions
As for consumer products,s it applies the law of the land, where the consumer has his usual residence. The preference of consumers' residence instead of sellers aims to boost consumption and favor those who want to buy by making things easier for them
The contracts that have an objective real right on the property are subject to the legislation of the country where the property is located. Transactions on property have more strict rules and contracts must be written and signed by notaries who provide authenticity. Therefore applying foreign law in such cases is impossible as it is a matter of public order. This is because the property is bound to the land where it lies and therefore its law.
International Conventions
The Hague Convention of private international law HCCH is the most important with 41 conventions since 1954. In particular, it includes 91 members of which 90 states and the European Union. Most matters that this convention addresses are related to marriage and divorce and family agreements involving children. Apart from these, there are also jurisdiction projects and intellectual property ones. The HCCH principle of choice of law in international commercial contracts is also crucial. It provides the liberty and party autonomy to choose the law’s origin for each of their transactions in case a dispute arises. However, it also sets a variety of boundaries to that liberty of choice so that circumvention is avoided.
Why is it important?
The importance of international private law is vital, especially in a multicultural environment. It is also highlighted within the European Union as the freedom to live and have financial and economic activity everywhere. This means that everyone within the borders of the EU has the right to lead cases with multiple nationalities involved.
One of the most important aspects of trade, investments, and generally any economic activity is justice. Actually, this concerns any difference that might occur and can be delivered on time. Private international law is a way of solving such problems while taking into account the various nationalities involved. The next step is applying the best law to every circumstance.
Understanding which law is to be applied can provide important information about the possible benefits and boundaries of any legal pursuit. Yet the most important step is to be informed about the set of international private law rules of the county where the case happens.
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