We explain what private international law is and what its purpose is. Also, its history, sources, principles and other characteristics.
What is private international law?
Private international law is the branch of law that deals with international legal issues other than the relationship between different States.
I mean, deals with the resolution of conflicts of international jurisdiction conflicts of international laws, international procedural cooperation and the legal status of foreigners. That is, it intervenes in areas in which there is a private interest or that occurs between private entities. For this reason it is often known as International Civil Law.
However, we must note that private international law, in many cases, far from resolving the problem in dispute, proceeds to determine which legal order among the countries involved should prevail to resolve the dilemma. That is to say, assume always a normativist position.
This does not prevent, in the face of the dynamics of the global market and a world in constant globalization, changes and more substantialist positions from emerging within this branch of law, aimed at promoting a new study of international private legal relations.
History of private international law
There are different positions regarding the origin of private international law. Some scholars place it in ancient times especially in the legal systems of Ancient Greece or the Roman Empire, given that an important percentage of our legal understanding is born from Roman Law.
Instead, According to other authors, this branch of law began in the 13th century when the Bolognese jurist Francesco d'Accorso (1225-1293) imposed on the courts of the city of Modena the use, in certain cases, of Bolognese jurisprudence. Thus he introduced for the first time the principle of the extraterritoriality of the State, and founded the existence of international private law.
Sources of private international law
Private international law has two different source regimes, although the first is the most used to resolve conflicts. These regimes are:
- National sources. Those that have to do with the ordering of a single nation, that is, its internal laws, and that are those emanating from its legislation, its jurisprudence and its customs.
- International sources. Those that are specific to the international community, such as international treaties and agreements.
Object of private international law
This branch of law aims the pursuit of harmony in the private legal regulations of the different States between which there is some specific legal relationship.
This implies the guarantee of legal rights at the international level, both for private entities and for situations in which States act as private entities. Thus, international trade and justice are possible through the application of local law and foreign law, as appropriate.
Characteristics of private international law
In general terms, private international law is characterized by being:
- National. Well, each country dictates its own rules and approaches to international law, which is why there is room for conflict and mediation.
- Positive. Since its regulations are inscribed in the formal legal texts of each country, and even in those signed bilaterally or reciprocally between several countries.
- Particular. Regarding the term “foreigner” in their relationships.
Principles of private international law
The great principles of private international law are four:
- Locus regit actum In other words, “the place governs the acts” means that the actions will be legal or not depending on where they are carried out, since the legal framework of each country is its own.
- Lex loci rei sitae. In other words, “The law of the place where the things are located” means that the assets will always be transferred according to the law of the place where they are located.
- Mobilia sequuntur personam. In other words, “Things follow people” means that the things owned by a person are governed by the law by which that person is governed.
- Lex fori. In other words, “Law of the forum” means that the law of the judge who discriminates against it will be applied to each conflict, that is, that of its State.
Public international law
The two main branches of international law, public and private, differ from each other in that they are interested in international law from different points of view. It is the same distinction that exists within jurisprudence between private law and public law.
On the one hand, private international law deals with the legal relations of the populations of different countries. On the other hand, Public international law deals with relations between different countries and states such as territorial conflicts or disputes between their respective sovereignties.
Continue in: Public international law
References
- “Private international law” on Wikipedia.
- “Department of International Law” at the Organization of American States (OAS).
- “Private International Law” at Tulp Abogados.
