Running head: PRIVATE INTERNATIONAL LAW (Summary of All) 1
PRIVATE INTERNATIONAL LAW
(Summary of All)
Name
Institution
Course
Tutor
Date
,PRIVATE INTERNATIONAL LAW 2
Private International Law – Theory (Summary)
Tutorial 1 – PIL and its Core Terminology
Private international law
law which comes into play when court is faced with cross-border legal
situations;
- Conflict rules:
Applicable law – which law is applicable to the issue;
- Procedural rules of PIL:
Jurisdiction – which court is competent to hear case
Recognition and enforcement – when can decision be recognised and
enforced;
PIL:
- Law of tolerance and comity
- Protection of fundamental rights and values
- International governance tool to promote internationally agreed standards
Objectives and goals
Smooth functioning of international relations;
Promoting legal certainty and managing insecurity and risk in international
legal relations;
Satisfying the reasonable and legitimate expectations of parties to avoid
injustices;
International harmony of decisions;
Avoid ‘limping’ legal relationships – ensure stability;
, PRIVATE INTERNATIONAL LAW 3
How to determine the applicable law? – 2nd pillar
Types of conflict rules
- Unilateral conflict rules
Unilaterally determines the law which will be applied; scope of
application of lex fori – no space for foreign law;
- Multilateral conflict rules
Applicable law can either be foreign law of lex fori;
Designation of applicable law on the basis of connecting factor than
looking at its substantive scope;
Applicable law = legal category (subject i.e. law of marriage) +
connecting factor
Connecting factor – links subject matter to particular applicable
law rule
1)
Single – nationality; domicile etc…
Composed – combination of multiple factors
Cumulative – governed by particular State if person
habitually resident, IF HE was a national of that State;
Subsidiary – spouses habitually resident, OR FAILING
THAT – last habitually resident together etc…
Alternative – place where testator made it OR nationality of
testator etc…
2)
Open connecting factor – it can lead to any law of any one
state;
Closest connection – open
Habitual residence – closed – easier to apply
PRIVATE INTERNATIONAL LAW
(Summary of All)
Name
Institution
Course
Tutor
Date
,PRIVATE INTERNATIONAL LAW 2
Private International Law – Theory (Summary)
Tutorial 1 – PIL and its Core Terminology
Private international law
law which comes into play when court is faced with cross-border legal
situations;
- Conflict rules:
Applicable law – which law is applicable to the issue;
- Procedural rules of PIL:
Jurisdiction – which court is competent to hear case
Recognition and enforcement – when can decision be recognised and
enforced;
PIL:
- Law of tolerance and comity
- Protection of fundamental rights and values
- International governance tool to promote internationally agreed standards
Objectives and goals
Smooth functioning of international relations;
Promoting legal certainty and managing insecurity and risk in international
legal relations;
Satisfying the reasonable and legitimate expectations of parties to avoid
injustices;
International harmony of decisions;
Avoid ‘limping’ legal relationships – ensure stability;
, PRIVATE INTERNATIONAL LAW 3
How to determine the applicable law? – 2nd pillar
Types of conflict rules
- Unilateral conflict rules
Unilaterally determines the law which will be applied; scope of
application of lex fori – no space for foreign law;
- Multilateral conflict rules
Applicable law can either be foreign law of lex fori;
Designation of applicable law on the basis of connecting factor than
looking at its substantive scope;
Applicable law = legal category (subject i.e. law of marriage) +
connecting factor
Connecting factor – links subject matter to particular applicable
law rule
1)
Single – nationality; domicile etc…
Composed – combination of multiple factors
Cumulative – governed by particular State if person
habitually resident, IF HE was a national of that State;
Subsidiary – spouses habitually resident, OR FAILING
THAT – last habitually resident together etc…
Alternative – place where testator made it OR nationality of
testator etc…
2)
Open connecting factor – it can lead to any law of any one
state;
Closest connection – open
Habitual residence – closed – easier to apply
