law international

1. International Law

2. Introduction to Private International Law
 Private International Law is one branch of the diverse laws under which the
private citizens of various countries do transactions and interact with each
other. It is a structure of conventions, guides that help regulate relations
across national borders. It has a dualistic nature of balancing international
harmony as well as balancing sovereign actions with those of the private
sector. Private International Law is a piece of law which deals with private
populaces ( the common people) of various nations. International laws are
different for every country.

3.  Those are the rules made by the nations to decide the communication with
autonomous countries. Each country has their own principles according to
which they decide the scope of the law. Unification of substantive law and its
conflicts both come under the ambit of Private International Law. It addresses
the issue of a broad spectrum of legal concerns. It includes diverse issues like
child abduction, wills and trusts, sales contracts, enforcement of foreign
judgments, negotiable instruments etc. these issues are limitless to the
attorneys with an international practice. It has become both the development
of multilayer international agreements in setting rules as well as other means
to harmonize and unite substantive law.

4. Definition of International Law
 According to Oppenheim, International Law is a “Law of Nations or
international law is the name for the body of customary law and
conventional rules which are considered binding by civilized states
in their intercourse with each other.”
 Therefore, international law can be considered as a set of rules,
agreements and treaties that are binding between countries, they
govern how nations interact with other nations. It helps in
regulating the relationship of people who trade or have legal
obligations which involve the jurisdiction of more than one state.
The main purpose of international law is to promote peace, justice
and common interest.

5. Principles of International Law
 International law is based on two principles:
1.Jus Gentium: These are those set of rules that do not form
part of a legal code or a statute but are those portions of law
mutually governing the relationship between the two nations.
2.Jus Inter Gentes: These are those treaties and agreements
that are mutually accepted by both countries.
 International Law provides the means through which disputes
can be resolved peacefully. It is primarily concerned with the
rights, duties and the interests of the state.

6. Classification of International Law
 International Law can be classified into two groups:
1. Public International Law
 Public International law is regulated by:
1. Customs that are included as state practise and opinion Juris.
2. Treaties
3. Globally accepted Norms.
 It regulates the relationship between those nations and peoples that may be affected
by a particular law as they feel to be bound by these legal codes and rules.
2. Private International Law
 It regulates private conflicts between individuals rather than states. It soughts to
resolve dispute in the domestic municipal body which involves an issue revolving
beyond its domestic jurisdiction. Corporations, in particular, are commonly involved in
private international law disputes because they frequently transfer their capital and
supplies across international borders. The more business that is carried out between
nations, the more likely a dispute will arise.

7. International and National Application
 National law governs the domestic aspects of government,
deals with issues between individuals as well as between
individuals and the administrative apparatus, while
international law focuses primarily upon the relations between
states. International Law and National Law are two distinct
legal orders existing independently. An internal law cannot
become an International Law. However, an International Law
can become an Internal (Municipal) Law.

8. Theoretical approach
 .Monism
 According to monism, international law directly applies within national legal order because
the act of ratifying an international treaty automatically incorporates the same into national
law. Hersch Lauterpacht and Hans Kelson was a forceful exponent of a version of monism.
They emphasized that individuals are the ultimate subjects of international law,
representing both the justification and moral limit of the legal order.
 Monist systems” do differ in their approach.
• Under some Constitutions direct incorporation of international obligations into domestic law
occur on ratification.
• In other States, direct incorporation occurs only in self-executing treaties.
 2. Dualism
 Dualism deals with a more distinct and independent aspect of the International legal
system. For States with a “dualist system”, international law is not directly applicable
domestically. It must first be translated into national legislation before it can be applied by
the national courts.
 Therefore, for dualists, state ratification of the ICC statute is not enough, and national
implementing legislation is necessary. War crimes trials, for example, can only take place
when the national legislation is enacted, unless of course, such legislation already exists.

9. Application of National Rules in International Law
 A state which has broken its obligation under international law cannot
justify their actions by referring to the national law. Under Article 27 of
the Vienna Convention on the Law of Treaties, 1969 it is mentioned that
as far as treaties are concerned, a party may not invoke the provisions of
its internal law as justification for its failure to carry out an international
agreement, while Article 46(1) provides that a state may not invoke the
fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent.
 The International Court has underlined, in the Applicability of the
Obligation to Arbitrate cases that the fundamental principle of
international law is that international law prevails over domestic law
while Judge Shahabuddeen emphasised in the Lockerbie case that
inability under domestic law to act was no defence to non-compliance
with an international obligation.

10. Relevance and Function of International Law
 The earliest expressions of international law were the rules of
war and diplomatic relations. During the Age of Discovery,
rules on governing the acquisition of territory became more
important and they talked about the principle of freedom of
seas because this was necessary for the expansion of trade.
 International law, therefore, grew out of necessity. As
international engagement increased, international law
expanded. In the present-day world, international law is the
most convenient form of regulating world order. Some
important functions of international law include:

11. • To maintain International Peace and Security.
• To provide fundamental freedom and human rights.
• To refrain from the threat or use of force by a state against the
territorial integrity or political independence of any State.
• To provide the right of self-determination to people.
• To achieve international co-operation in solving international
problems of an economic, social, cultural and humanitarian
character.
• To settle international disputes by peaceful means.
 There exists no such thing as the world legislature, however, there
is an international code of law whose pervasive presence might
eliminate violence and tries to maintain world peace.

12. Historical Overview
 While the modern international system can be traced back to some
400 years, but the basic concepts of international law can be
discerned in political relationships thousands of years ago. Around
2100 BC, a solemn treaty was signed between the rulers of Lagash
and Umma, the city-state situated in the area known to historians
as Mesopotamia.
 The treaty was inscribed on a block of stone which dealt with the
establishment of a defined boundary which has to be respected by
both sides. The next major instance of a binding international
treaty was concluded over 1,000 years later between Rameses II of
Egypt and the King of Hittites for the establishment of eternal
peace and brotherhood.

13.  The foundations of international law (or the law of nations) as
it is understood today lie firmly in the development of western
culture and political organisation. Treaty of Westphalia
provides Public International Law, the structure and order, for
developing it in terms of the present-day society.
 Ideas revolving around natural Law formed the basis of
philosophies given by the early theorists. Their theories and
philosophies depicted the merging idea of Christian themes
and Natural Law that occurred in the philosophy of St. Thomas
Aquinas.

14.  In the middle ages, two sets of international law, namely Lex Mercatoria
(Law Merchant) and the Maritime Customary Law were developed to deal
with problems that transcended international boundaries. With the
revival of trade in the 10th century, merchants started to travel all
throughout Europe in order to sell, buy and place orders for various
goods. These commercial activities required the establishment of a
common legal framework.
 The Evolution of Modern International Law was done by a British
historical lawyer, Maine. The evolving concepts of separate, sovereign
and competing states marked the beginning of what is understood as
international law. International law became geographically
internationalised through the expansion of the European empires. It
became less universal in conception and more, theoretically as well as
practically, a reflection of European values.

15.  A Dutch Scholar Hugo Grotius, born in 1583, has been celebrated
as the father of International Law. His treatise De Jure Belli ac
Pacis has been acknowledged as the most comprehensive and
systematic treatise of positivists international law. It is extensive
work and includes rather more devotion to the exposition of private
law notions than what seems appropriate today.
 One central doctrine in Grotius treatise was the acceptance of the
law of nature as an independent source of the rule of law of nations
apart from customs. His work was continually relied upon as a
point of reference and authority in the decisions of courts and
textbooks and later writings of standing.

16.  The rise of international law mainly happened during the 19th Century
with the rise of powerful states surrounding Europe. With the greater
technological advancement and development of new warfare methods, it
became necessary to regulate the behaviour of these states with the help
of a legal framework. The International Committee of the Red Cross was
founded in 1863 which helped to promote the series of Geneva
Conventions beginning in 1864. These conventions dealt with the
‘humanisation’ of conflict.
 The Hague Conferences of 1899 and 1907 helped in establishing the
Permanent Court of Arbitration which dealt with the treatment of
prisoners and the control of warfare. Numerous other conferences,
conventions and congresses emphasised the expansion of the rules of
international law and the close network of international relations. Due to
the above actions the development of the law of war and international
bodies that adjudicated international disputes occurred.

17.  The Permanent Court of International Justice was established in
1921 after World War I and was succeeded in 1946 by the
International Court of Justice. United Nations founded the
International Court of Justice which has now expanded the scope of
International Law to include different aspects of the issues that
affect a vast and complex area of international rules such as
International Crime, Environment law, Nuclear law etc.
 The ICJ was created as a judicial body to hear cases involving
disputes between nation-states. It is made up of 15 judges, elected
for nine-year terms. The judges are elected by the U.N. General
Assembly and the Security Council, based on nominations made to
the Secretary-General.

18. Conclusion
 International Law is a set of rules which is necessary to
regulate the behaviour of nation-states in order to ensure
peace and welfare of the International community. It helps in
resolving disputes amongst states. It is not necessary for
international law to be codified into an agreement. It may
influence internal laws and become a part of domestic law as
well. Modern International Law has developed through a long
line of history and the International Court of Justice is
considered as the principal body responsible for upholding the
tenants of International Law.

19. Application and Subject Matter of Private
International Law

20.  The Conflict of Laws, or as it is more commonly known by the name of
Private International Law is that branch of law which deals with those
case where some foreign element is present; to be more precise the
geographical factor is present. This situation may arise when the parties
are residents of a foreign country and any dispute arises between them
or there a dispute between people belonging to two different countries.
And in all the cases where any foreign element is present, the Court
applies the principle of “conflict of laws.’
 In the present era, almost all countries have a system in place to deal
with conflict of laws. This system is required for the increased movement
of people from one territory to the other due to various reasons. The
Courts in such cases voluntarily apply the principle of conflict of laws.
While there are some laws which are accepted in most of the countries,
some rules might differ depending on the place.

21.  Private International Law determines that what law will be
applied when there is a dispute between the parties relating to
their private rights and obligation, but where some foreign
element is also present, and what Court shall have the
jurisdiction to try the dispute. According to this, Private
International Laws may possess the following principles:[1]

22. • It is a branch of national or local laws of the country.
• The cases under the purview of Private International Laws
always involve a foreign element.
• The local Courts govern the cases.
• The law is administered over individuals.
 In simple words, Private International Laws can be defined as
a means to find out the way to solve a dispute when any
foreign element is involved.

23.  Basis of Private International Law
 The basic principle behind applying Private International Law
is to ensure that justice is done. It will be a grave injustice to
the parties if cases are decided using local laws of the land,
when a foreign element is involved, for instance, a Spanish
element is decided by Indian Court using the rule of law which
is prevalent in India just because it is an Indian Court. The
final decision could have been different if a Spanish Court had
decided the matter.[2]

24.  The function of conflict of laws is to indicate the area over
which it has jurisdiction. According to Savigny, Private
International Law is a diversity of positive laws (with each
territory having its laws) and thus it is essential to mark each
in a separate outline to fix the area of authority. According to
him, it was necessary to fix the limit of different positive laws
against one another.[3] In respect to conflict of laws, it has
also been suggested that it is a mutual conduct, where each
state adopts the rule of each other to meet the ends of
justice.[4]

25.  The Indian Legislature also supports this suggestion. This is
evident from reading Section 11 of the Foreign Marriages Act,
1969. According to the provision, Indian Consular Officers and
Diplomats are allowed to solemnize the marriage of a couple,
when one of them is an Indian citizen who is in a foreign
place. But such a marriage cannot be solemnized if it is in
contravention to the laws of the country where it is to be
solemnized. The prohibition clause is there because if it is
done so, it’ll be contrary to international law, and the mutual
agreements which the nations have between them.[5]


26. General and Traditional Rules of Private International Laws
 The general rule of Private International Law can be explained
by giving the following example. Suppose X and Y come into a
contract of sale of clothes from India. X is an Indian and Y is
an Italian. Now a dispute arises between X and Y, and the
case comes before the Court. The Court will have to decide
which country’s law should be followed. In such cases, general
rules of Private International Law are followed.

27.  Hereunder, given are some Traditional Rules of Private International
Law:
• The validity of marriage is determined by the law of the place
where marriage was solemnized.
• Succession of immovable property is governed by laws of the land
where the property is situated
• Proper law of contract decides the contractual liability between the
parties
• Law of Procedure is governed by the law of the Forum
• In a case of liability under the law of torts, it is governed by the law
of the land where the damage occurred.

28. Important Issues Which Arise on Application of Private International Law
 Whenever any foreign element is present in a case and Private
International Law is applied to solve the dispute two main
issues arise. First, is the determination of the Procedural Law
and the second issue is to determine the Substantive Law.
 Procedural Laws are those laws which govern the procedure of
the court in civil, criminal and administrative matters. The
Procedural Law ensures that the due process of the law is
being followed.

29.  Substantive law is that law which deals with the legal
relationship between different individuals of the state, or
between individuals of the state and the state itself. Hence, it
can be said that Substantive laws explain the rights and duties
of the people, and Procedural Law lays down the procedure to
enforce such rights and duties (or liabilities and obligations).
The entire case depends on how these laws are being applied.

30.  The judicial pronouncement in the case of Re Annesley[6] can be cited
here. The facts of the cases are that a British National domiciled in Italy.
This British National had some moveable property in England. He died
without a will and a question arose regarding the succession of the
property. When the case came to the Court, the Court had to decide the
matter of Procedural and Substantive Law to be followed.
 With respect to Procedural Law, the domestic law is followed. So the
issue remains limited to the question of Substantive Law, and choosing of
Substantive Law remains paramount to achieve the ends of justice.
 Justice Cardozo, the distinguished American Judge, has opined that this
conflict of laws is one of the most baffling subjects of legal science. He
also observed that when confronted with the application of Private
International Law, many Judges find themselves lost.[7]

31. Unification of Private International Law
 From a long time, it was believed that law of different countries could unite.
According to Ernst Zitelmann, since legal formalities are more or less common
all across the globe, and policy goals are share, laws of every country end up
converging at the end.[8]
 As stated earlier, the need for Private International Laws arises because each
country has its different international law. If all the countries lay down uniform
internal laws, then there would be no need of Private International Laws. But, it
must be noted that the difference is not only regarding the internal laws but also
differences are there in Private International Laws which each nation chooses to
follow, on account of which conflicts between law arises. Due to this, the
unification of law is vital.
 There are two modes of unification of laws, namely:
• Unification of Internal laws of different countries.
• Unification of rules of Private International Law.

32.  Unification of Internal Laws:
 The first attempt to unify the internal laws of different nations was attempted
through the Bern Convention in 1886 under which an International Union was
formed to protect the interests of authors and writers over their literary works.
Then after World War I, the Institute for Unification of Private Laws was
established. The Institute achieved some success in the unification of civil laws
of different States. The Warsaw Convention of 1929 (later amended by the
Hague Convention of 1955) is a landmark in this regard as it laid down uniform
laws which regulated the carriage of goods and person by air. The unification is
not very poor, but looking at the bigger picture, it is very insignificant. An
attempt was also made to unify the laws of the Soviet Union and the People’s
Democracies of Eastern Europe.
 But this method of unification has not been successful in the long run because
every nation differs from the other with respect to culture, religion, the
upbringing of the people, public policy, etc.

33.  Unification of Rules of Private International Law:
 Due to basic difference in the legal system of every country, it is
impossible to unify all the laws. Therefore, another method to avoid
conflicts in the unification of Rules of Private International Law has
to be emphasized upon. Pre-1951, an attempt was made to unify
all those European Countries which followed the Civil Law. But
nothing could be done towards the unification of laws of the
Commonwealth Countries and the United States because there was
a huge fundamental difference in the laws of these countries. But
after 1951, some intense attempt was made to unify the rules of
Private International Laws. In the year 1951, a permanent bureau
of Hague Convention (HccH) was established to look after the
issue. The main function of the HccH is to work towards broader
Unification of Private International Law.

34.  At present, the Institute for Unification of Private Law
(UNIDROIT) looks up after the matter. It is an
intergovernmental body which is established in Rome, and its
function is to coordinate and harmonize private (especially)
commercial laws between different nations.[9]


35.  Benefits of Unification
 If the rules of Private International Laws are unified, it’ll
reduce the number of conflicts which arise when a foreign
element is involved. Unification of laws will also make
proceedings less time-consuming. The proceedings will move
ahead in an efficient manner as the Courts would know which
law to apply and would not have to spend time on that
question. Also, in this era of globalization, unification of Rules
can bring the entire world on the same platform

36.  Challenges to Unification
 Internal laws of each country are different as per the
requirement of the country. But now, the trend which can be
observed is that even Private International Laws are different
and not uniform in all countries. The first challenge in the
unification of Rules is to make different nations agree to the
same set of Rules. Secondly, every nation would want the
rules to be as per their requirements. In such a case,
requirements of some countries may be neglected even if
uniform rules are agreed to. Another major challenge will be
to enforce the Rules in all the countries of the world.

37. Doctrine of Renvoi

38. Introduction to Renvoi
 In French “Renvoi” means “send back” or “return unopened”. When any
conflict occurs, which is considered to have law of another state referred to as
Private International Law, The Doctrine of Renvoi is a legal doctrine which is
thereafter applied in the court. It is a significant and elementary subject of
Private International Law or Conflict of Law. This is applied in foreign issues of
succession planning and administering estates. The Doctrine of Renvoi is the
process by which a court adopts rules of a foreign jurisdiction with any conflict
of law. It is a method used to take care of cases existing in foreign elements.
The idea used behind the doctrine is that it prevents forum shopping and the
same law is used for cases regardless of what the case actually is. It attempts
to achieve the end.

39. Types of Renvoi
 While under a Judge if there is no space left to use law, which is under Jurisdiction of a nation, at that point the judge may
apply the best possible kind of Renvoi.
 1. Single Renvoi
 This system refers to laws which are chosen from others’ jurisdictions. Countries like Spain, Italy, Luxembourg use a Single
Renvoi system. In their jurisdiction where the matter arises in (A), those authorities will consider whether their own
domestic law is the applicable law otherwise if it is applicable in Jurisdiction (B) its rules will be then applied to bring it back
to (A) the court will accept the reduction and apply its own domestic laws.
 2. Double Renvoi
 Countries like England and France accept double Renvoi. Where the court of (A) applies the law that the court (B) would
apply if the matter came before it. This system uses two or more remissions. For e.g. let’s consider the case where a
testator, an Irish national, who is habitual resident of Spain but domiciled in Italy, does leave moveable property in France.
France has a forum that examines the law of the deceased’s habitual residence Spain and applies Spanish laws. Spanish law
observes the deceased nationality which is Italy. France will apply Italian law in this case as Italy has a jurisdiction operating
a single Renvoi system.
 3. No Renvoi
 Countries like Denmark, Greece and the United States do not accept Renvoi.[2]

40. Procedure for Conflict Cases
 The court at first place must decide whether it has the jurisdiction to hear the
given case which includes addressing the questions of whether the plaintiff is
attempting to manipulate the judicial system by forum shopping. Next step is
characterisation, which is the court analysis of cases as pleaded and allocated
components to its appropriate classification which has one or more choice of
law. The court will thereafter apply the choice of law rules. In certain issues
like family law, incidental questions emerge complicating the process.

41. Application of Renvoi
 The scope of Doctrine of Renvoi is very limited because of its unpredictability.
It is applied in validity of wills and intestate succession i.e. Transfer of property
and retrospective legitimacy of marriage of natural parents i.e. validity of
divorce decree. However, there are also states which apply these two issues in
family law.

42. Judgements related to Doctrine of Renvoi.
 In re Ross[3]
 In the above-mentioned case, the testatrix was British citizen, she was
domiciled in Italy and had written a will leaving the land in Italy and the
movables both in Italy and England. The will was valid in England but not in
Italy as she had not left half of her property to her son. The court applied the
law regarding where the property is situated. The movables in Italy because
the will writer’s nationality was Italian. So, the judge applied the Italian law
with respect to the immovable property situated in Italy because Italy does
not accept the Renvoi based issue in accordance with English law.

43.  Forgo case[4]
 In this case a Bavarian national died in France, he lived there from the age of 5
year. According to Bavarian law the property was passed to the relatives, but
in French law it will be passed to the government and not the family
members. The French court held that it would entertain the enquiry according
to Bavarian law. The case was ruled for French state and the reference was the
Bavarian guidelines.

44.  Re Annesley[5]
 This case is a Renvoi case of property. A 58-year woman was domiciled in
England, she was also a French domiciled as she died there. The case was
invalid under the French law as she did not leave two third of her property to
her hire. Which is mentioned in French law. The English court applied for an
authority certificate of domicile for the women as during her death she was a
domicile of France. Based on it the English court referred the matter to the
French court because she was domicile of France during death. France has
single renvoi rule and they referred the case back to England. Therefore, the
French court would accept the remission and have applied the internal law.

45. Critical Analysis of Renvoi
 After looking into the definition, types, points of interest of Renvoi. Critically it
can be said that it does not make a difference to all cases. Renvoi does not
discover a spot in the fields of contract or tort and anyways if there is no
Renvoi the court has to apply Internal laws. Despite logical fallacies, this
foreign court doctrine has British and American scholar’s support.
Fundamental rules of choice of law are hindered under the obsession of this
Doctrine of Renvoi. Basically, this Renvoi Doctrine has been relied upon to
enable Utopian courts to enforce rights acquired in Ruritania. The rights
cannot exist outside the territory of the Law system that created it unless it is
recreated by Foreign law.

46.  Even when a court intends to apply the Renvoi Doctrine it must rely on foreign
experts’ information to what the foreign law is. This need creates an element of
inefficiency and oddness in the court’s procedure. This is also dangerous for a court
to apply alien laws of which he does not have elementary ideas as certain degree of
distortion is ordinally unavoidable in applying foreign rule. Thus, it appears that no
forum can be relied upon to apply substantive foreign country law in an entirely
consistent manner. This problem is complex when the court seeks to apply foreign
choice of law rules. All these reasons often raise the judges to employ either foreign
or domestic law to their personal view whichever is the better fit. The court ends up
introducing its own doctrine of public policy in the guise of interpreting foreign
choice of law.

47.  However, if the court feels that it is better to apply the Lex fori than foreign
rule it may reject the foreign law. The logical and the evidential problems
accompanying the Renvoi in fact may prove to be effective guises for judicial
eclecticism and law reform. Though judicial law-making is commendable
towards Lex fori they should not provide this opportunity just because it
includes a foreign element. Briefing above instances it is apparent that the
Renvoi doctrine is subject to many weaknesses. In light of these criticisms it is
difficult to support utilizing this doctrine as a technique for the choice of
proper Lex causae. It is devoid of certainty and predictability of a court of
law.[6]

48. Question
1.What is Private International Law?
2.What is The Doctrine of Renvoi and its types?
3.What procedure does the court follow when conflict of law occurs?
4.What are the applications and drawbacks of Doctrine of Renvoi?
5.Judgements which used Doctrine of Renvoi.