Private international law is that part of English law which comes into operation whenever the court is faced with a claim that contains a foreign element. It is only when this element is present that private international law has a function to perform. It has three main objects.
First, to prescribe the conditions under which the court is competent to entertain such a claim.
Secondly, to determine for each class of case the particular municipal system of law by reference to which the rights of the parties must be ascertained.
Thirdly, to specify the circumstances in which (a) a foreign judgment can be recognised as decisive of the question in dispute; and (b) the right vested in the judgment creditor by a foreign judgment can be enforced by action in England.
The raison d’être of private international law is the existence in the world of a number of separate municipal systems of law—a number of separate legal units—that differ greatly from each other in the rules by which they regulate the various legal relations arising in daily life. Courts in one country must frequently take account of some rule of law that exists in another. A sovereign is supreme within his own territory and, according to the universal maxim of jurisprudence, he has exclusive jurisdiction over everybody and everything within that territory and over every transaction that is effected there. He can, if he chooses, refuse to consider any law but his own. Although the adoption of this policy of indifference might have been common enough in other ages, it is impracticable in the modern civilised world. Consequently, nations have long found that they cannot, by sheltering behind the principle of territorial sovereignty, afford to disregard foreign rules of law merely because they happen to be different from their own internal system of law. Moreover, as will be shown later, it is no derogation of sovereignty to take account of foreign law.
The recognition of a foreign law in a case containing a foreign element may be necessary for at least two reasons. In the first place, the invariable application of the law of the forum, ie the local law of the place where the court is situated, would often lead to gross injustice. Suppose that a person engaged in English litigation is required to prove that she is the lawful widow (p. 4) of a man who has just died, the marriage having taken place abroad many years ago. The marriage ceremony, though regular according to the law of the place where it was performed, did not perhaps satisfy the formal requirements of English law, but nevertheless to apply the English Marriage Act 1949 to such a union, and thereby to deny that the couple were man and wife, would be nothing but a travesty of justice.
Secondly, if the court is to carry out in a rational manner the policy to which it is now committed—that of entertaining actions in respect of foreign claims—it must, in the nature of things, take account of the relevant foreign law or laws. A claimant,1 for instance, seeks damages for breach of a contract that was both made and to be performed in France. Under the existing practice the court is prepared to create and to enforce in his favour, if he substantiates his case, an English right corresponding as nearly as possible to that which he claims. However, neither the nature nor the extent of the relief to which he is rightly entitled nor, indeed, whether he is entitled to any relief can be determined if the law of France is disregarded. This is because to consider English law alone might reverse the legal obligations of the parties as fixed by the law to which their transaction, both in fact and by intention, was originally subjected. A promise, for instance, made by an Englishman in Italy and to be performed there, if valid and enforceable by Italian law, would not be held void by an English court merely because it was unsupported by consideration.2
In justifying this reference to a foreign law, English judges and textbook writers have frequently used3 the term comity of nations, “a phrase which is grating to the ear, when it proceeds from a court of justice”.4 Although the term has been often used, analysis of it reveals that it has been employed in a meaningless or misleading way. The word itself is incompatible with the judicial function, for comity is a matter for sovereigns, not for judges required to decide a case according to the rights of the parties.5 Again, if the word is given its normal meaning of courtesy it is scarcely consistent with the readiness of English courts to apply enemy law in time of war. Moreover, if courtesy formed the basis of private international law a judge might feel compelled to ignore the law of Utopia on proof that Utopian courts apply no law but their own, since comity implies a bilateral, not a unilateral, relationship. If, on the other hand, comity means that no foreign law is applicable in England except with the permission of the sovereign, it is nothing more than a truism. The fact is, of course, that the application of a foreign law implies no act of courtesy, no sacrifice of sovereignty. It merely derives from a desire to do justice.
Private international law, then, is that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system. It has, accordingly, been described as meaning “the rules voluntarily chosen by a given State for the decision of cases which have a foreign complexion”.6 The legal systems of the world consist of a variety of territorial systems, each dealing with the same phenomena of life—birth, death, marriage, divorce, bankruptcy, contracts, wills and so on—but in most cases dealing with them differently. The moment that a case is seen to be affected by a foreign element, the court must look beyond its own internal References(p. 5) law, lest the relevant rule of the internal system to which the case most appropriately belongs should happen to be in conflict with that of the forum. The forms in which this foreign element may appear are numerous. One of the parties may be foreign by nationality or domicile; a businessman may be declared bankrupt in England, having numerous creditors abroad; the action may concern property situated abroad or a disposition made abroad of property situated in England; if the action is on a bill of exchange, the foreign element may consist in the fact that the drawing or acceptance or endorsement was made abroad; a contract may have been made in one country to be performed in another; two persons may resort to the courts of a foreign country where the means of contracting or of dissolving a marriage are more convenient than in the country of their domicile. It is the existence of such foreign elements as these that has caused the courts to frame a number of different rules for the choice of law which demonstrate the most appropriate legal system to govern the issue that has arisen.
7. The Name of the Subject
The issue of the name or title of the subject may seem to be of little importance, but needs to be addressed, largely because there is no name which commands universal approval. The expression “Private International Law”, coined by Story in 1834,87 was adopted by the earlier English authors, such as Westlake and Foote, and is used in most civil law countries. The chief criticism directed against its use is its tendency to confuse private international law with the law of nations or public international law, as it is usually called. There are obvious differences between the two. The latter primarily governs the relations between sovereign states and it may perhaps be regarded as the common law of mankind in an early state of development;88 the former is designed to regulate disputes of a private nature, notwithstanding that one of the parties may be a sovereign state.89 There is, at any rate in theory, one common system of public international law, consisting of the “customary and treaty rules which are considered legally binding by States in their intercourse with each other”,90 but, as we have seen, there are as many systems of private international law as there are systems of municipal law. Moreover, as often as not a question of private international law arises between two persons of the same nationality, as, for instance, where the issue is the validity of a divorce between two English persons in a foreign country.
References(p. 16) It would, of course, be a fallacy to regard public and private international law as totally unrelated. Some principles of law, such as requirements of natural justice, are common to both; some rules of private international law, as for example the traditional common law doctrine of the “proper law” of a contract, have been adopted by a court in the settlement of a dispute between sovereign states; equally, some rules of public international law are applied by a municipal court when hearing a case containing a foreign element.91
An equally common title to describe the subject, and one generally used in the USA, is “The Conflict of Laws”.92 This is innocuous if it is taken as referring to a difference between the internal laws of two countries on the same matter. When, for instance, a question arises regarding whether the assignment in France of a debt due from a person resident in England ought to be governed by English or by French internal law, it may be said that these two legal systems are in conflict with each other in the sense that they can each put forward claims to govern the validity of the assignment. But the title is misleading if it is used to suggest that two systems of law are struggling to govern a case. If an English court decides that the assignment must be governed by French law, it does not do so because English law has been worsted in a conflict with the law of France, but because it is held by the law of England, albeit another part of the law of England, ie private international law, that in the particular circumstances it is expedient to refer to French law. In fact, the very purpose of private international law is to avoid conflicts of law. The one case where a genuine conflict arises is where two territorial systems, differing in themselves, both seek to regulate the same matter, as, for example, where the bequest of a Greek citizen dying domiciled in England is governed by the law of his domicile according to the English doctrine, but by the national law according to the Greek view.
The fact is that no title can be found that is accurate and comprehensive,93 and the two titles “Private International Law” and “The Conflict of Laws” are so well known to, and understood by, lawyers that no possible harm can ensue from the adoption of either of them. It might be argued that the latter title is preferable, because it is a little unrealistic to speak in terms of international law if the facts of the case are concerned with England and some other part of the British Isles. However, the former is the title most widely used throughout the world and, significantly for this country, it is the description used in the European Union and most other international bodies of which the United Kingdom is a member.
1 Following the reforms to civil procedure introduced in 1999, the term “claimant” is now used in place of “plaintiff”. It needs to be borne in mind that the latter term was used in earlier English decisions and is still used in other common law jurisdictions.
2 Re Bonacina  2 Ch 394; and see now the Contracts (Applicable Law) Act 1990.
3 Eg Amin Rasheed Shipping Corpn v Kuwait Insurance Co  AC 50 at 65; Spiliada Maritime Corpn v Cansulex Ltd  AC 460 at 477; Société Nationale Industrielle Aérospatiale v Lee Kui Jak  AC 871 at 895; and Arab Monetary Fund v Hashim (No 3)  2 AC 114 at 136.
4 De Nova (1964) 8 Am JLH 136, 141, citing the early American author, Livermore.
5 Nadelmann, Conflict of Laws: International and Interstate, p 8; for further discussion see Wolff, pp 14–15; Yntema (1966) 65 Mich LR 1; Khan-Freund (1974) III Hague Recueil 147, 164.
6 Baty, Polarized Law, p 148.
7 Beale, p 1; see especially, Unger (1957) 43, Grotius Society 87, 94 et seq.
8 Private International Law, Guthrie’s translation, p 6.
9 Cook, Logical and Legal Bases of Conflict of Laws, p 7.
10 On this topic, see F A Mann (1954) 31 BYBIL 317; Grodecki (1959) 35 BYBIL 58; Spiro (1960) 9 ICLQ 357; Kahn-Freund (1974) III Hague Receuil 147, 441–6; Fassberg (1990) 38 ICLQ 956; Grodecki, 3 International Encyclopedia of Comparative Law, Chapter 8; Dicey, Morris and Collins, pp 63–76; Morris, paras 20-034–20-045.
11 See infra, pp 1367 and 1368.
12 See infra, pp 1348–50.
13 See for instance, infra, pp 897–8.
14 Re Chesterman’s Trusts  2 Ch 466 at 478.
15 Frederic Harrison, Jurisprudence and the Conflict of Laws, pp 101–2.
18 See infra, Chapter 11.
21 For the view that this question is becoming less significant in comparison with jurisdictional issues, see Briggs (1989) 9 OJLS 251, 252–7; Fawcett  Current Legal Problems 39.
23 Re Askew  2 Ch 259 at 267.
24 Infra, pp 23–4, and see Lorenzen (1920) 20 Col LR 247, 259.
25 By virtue of the Scotland Act 1998, Scottish civil law (being a reference to the general principles of private law, including private international law—s 126(4)(a)) falls within the legislative competence of the Scottish Parliament. However, the private international law aspects of reserved matters (s 29(3)) are reserved to the Westminster Parliament. See Crawford and Carruthers, para 2-04.
26 For an excellent account of the various methods of seeking unanimity, and an assessment of their success, see David, 2 International Encyclopedia of Comparative Law, Chapter 5.
27 This was made part of the law of the United Kingdom by the Carriage by Air (Supplementary Provisions) Act 1962. The Warsaw Convention was modernised by the Montreal Convention for the Unification of Certain Rules relating to International Carriage by Air 1999.
28 The Hague Rules which are contained in the Act were amended by a Brussels Protocol of 1968 which is embodied in the Carriage of Goods by Sea Act 1971, which came into force in 1977.
29 See David, op cit, pp 133–41.
31 As amended by the Sale and Supply of Goods Act 1994, Sch 2 and the Consumer Rights Act 2015 (Consequential Amendments Order) 2015/1726.
32 Graveson, Cohn and Graveson, Uniform Laws on International Sales Act 1967.
33 See Honnold, Uniform Law for International Sales Act under the 1980 United Nations Convention (3rd edn, 1999).
35 Ibid, pp 148–50; and see Parra-Aranguren (1979) III Hague Recueil 55; Maekelt (1982) IV Hague Recueil 193; Juenger (1994) 42 AJCL 381.
36 Vitta (1969) I Hague Recueil 111–232; van Loon, in Forty Years On: The Evolution of Postwar Private International Law in Europe (1990), pp 101–22; Pfund (1994) V Hague Recueil 9.
38 Van Hoogstraten (1963) 12 ICLQ 148.
39 Nadelmann (1965) 30 Law & Contemporary Problems 291; Pfund (1985) 19 Int Lawyer 505; Reese (1985) 19 Int Lawyer 881; McClean in Borras (ed), E Pluribus Unum (1996), p 205.
40 On the work of the Hague Conference generally, see Nadelmann (1972) 20 AJCL 323; David, op cit, pp 141–8; Droz (1980) III Hague Recueil 123; Overbeck (1992) Hague Recueil 9; Boggiano, ibid, 99; McClean, ibid, 267; TMC Asser Institute, The Influence of the Hague Conference on Private International Law (1993); (1994) 57 Law & Contemporary Problems, No 3.
41 See North, Essays in Private International Law (1993), pp 225–6.
43 See now Adoption and Children Act 2002, infra, p 1156 et seq.
48 For discussion of the activities of the seven Inter-American Specialised Conferences on Private International Law, see http://www.oas.org/en/sla/dil/private_international_law.asp> accessed 14 April 2017. Also Parra-Aranguren, in Conflicts and Harmonisation (1990) 155–75; and see Burman (1995) 28 Vand J of Transnational L 367; Parra-Aranguren in Borras (ed), E Pluribus Unum (1996), p 299.
49 See generally Crawford and Carruthers (2005) 3 Jur Rev 251.
50 Signed in 1997 and in force on 1 May 1999.
52 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union (OJ 2003 C 53/1) and the Council and Commission Action Plan Implementing the Hague Programme on Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 198/1). See European Council 4/5 November 2004, Presidency Conclusions (Press Release, Brussels, December 8, 2004, 14292/1/04 REV1 CONCL3), and Communication from the Commission to the Council and the European Parliament: Report on the Implementation of the Hague Programme for 2006 (COM (2007) 373 final).
55 Signed in Lisbon on 13 December 2007 and entered into force 1 December 2009.
56 Emphasis added. This requirement is less stringent than that which applies under Art 65 of the Treaty of Amsterdam.
57 Harmonisation of Private International Law by the EEC (ed Lipstein); Fletcher, Conflict of Laws and European Community Law (1982); Lasok and Stone, Conflict of Laws in the European Community (1987); North, in Forty Years On: The Evolution of Postwar Private International Law in Europe (1990), pp 29–48; Duintjer Tebbens, ibid, pp 49–69; Stone, EU Private International Law Harmonisation of Laws (2006).
58 Implemented in the UK by means of the Civil Jurisdiction and Judgments Act 1982. See infra, Chapter 10.
59 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)  OJ L 351/1.
60 See, infra, Chapter 11.
61 OJ 1980 L 266; North, Contract Conflicts (1982). See infra, Chapter 19.
62 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)  OJ L 177/6.
63 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)  OJ L199/40.
64 See H van Loon and A Schulz, ‘The European Community and the Hague Conference on Private International Law’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for the External Relations of the European Union (Institute for European Studies of the Free University of Brussels, 2007).
65 Council Decision (EC) 2006/719 of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law OJ 2006 L 297/1. Membership of the Conference is open to Regional Economic Integration Organisations to which the member states thereof have transferred competence over matters of private international law (Art 3 of the amended version (1 January 2007) of the Statute of the Hague Conference).
66 See Schulz (2007) 56 ICLQ 939.
67 On the distribution of competences between the Regional Economic Integration Organisation and its Member States, see Schulz (2007) 56 ICLQ 939, 945.
68 See, generally, J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016); Fawcett (2007) 56 ICLQ 1; and Bell in Bottomley and Kinley (eds), Commercial Law and Human Rights, 115.
69 Eg J v C  AC 668, HL; Oppenheimer v Cattermole  AC 249, 278 (per Lord Cross), 283 (per Lord Salmon), HL; Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd  AC 368, 428 (per Lord Templeman); The Playa Larga  2 Lloyd’s Rep 171, 190, CA; Settebello Ltd v Banco Toto and Acores  1 WLR 1050, 1056, CA.
71 Though not necessarily follow.
75 Meaning, for this purpose, the House of Lords; the Judicial Committee of the Privy Council; the Courts-Martial Appeal Court; in England and Wales or Northern Ireland, the High Court or the Court of Appeal; and in Scotland, the High Court of Justiciary sitting otherwise than as a trial court, or the Court of Session (s 4(5)).
77 For full analysis of the impact of Art 6 on private international law rules, see J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapters 3–8.
78 In relation to jurisdiction in civil and commercial matters, see, eg, OT Africa Line Ltd v Hijazy (The Kribi)  1 Lloyd’s Rep 76. The UK judicial response to arguments based on Art 6 sometimes has been fairly dismissive, eg Lubbe v Cape plc  1 WLR 1545; Dow Jones & Co Inc v Yousef Abdul Latif Jameel  QB 946; and AG of Zambia v Meer Care and Desai (A firm)  EWHC 2102 (Ch). See, in detail, infra, p 628. In relation to jurisdiction in matrimonial matters, see, eg, Mark v Mark  UKHL 42 (infra, Chapter 22).
79 Eg Joint Stock Co ‘Aeroflot—Russian Airlines’ v Berezovsky and another  EWCA Civ 20; Merchant International Co Ltd v Natsionalna Aktsionerna Kompaniya Naftogaz Ukrayiny  EWCA Civ 196; Ahuja v Politika Navine/Magazini Doo  EWHC 3380 (QB); Sutton LBC v K  EWHC 1375 (Fam); Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)  UKHL 19,  2 AC 883; Maronier v Larmer  EWCA Civ 774,  QB 620; SA Marie Brizzard et Roger International v William Grant & Sons Ltd (No 2) 2002 SLT 1365; Al-Bassam v Al-Bassam  EWCA Civ 857; Government of the United States of America v Montgomery (No 2)  UKHL 37,  3 WLR 2241; and Orams v Apostolides  EWHC 2226 (QB). As regards the operation of public policy as a defence to recognition and enforcement, see Krombach v Bamberski  QB 709; further, infra, pp 626–32. In relation to matrimonial matters, see, eg, Emin v Yeldag  1 FLR 956 (concerning the grant of ancillary relief dependent upon recognition by the English court of a divorce obtained in the Turkish Republic of Northern Cyprus, a country not recognised by the British Government).
80 Eg Airey v Ireland, Judgment of 9 October 1979, Series A, No 32; (1979) 2 EHRR 305; Golder v UK, Judgment of 21 February 1975, Series A, No 18; (1975) 1 EHRR 524; and Osman v United Kingdom, Judgment of 28 October 1998; (2000) 29 EHRR 245.
81 Ashingdane v United Kingdom, Judgment of 28 May 1985, Series A, No 93, para 57; (1985) 7 EHRR 528; Steel and Morris v United Kingdom, Judgment of 15 Feb 2005, para 62.
82 Eg Weller v Associated Newspapers Ltd  EWCA Civ 1176; T v K and others  EWHC 2963 (Fam); Re A  EWFC 25; R (on the application of Williams) v France  EWHC 2128 (Admin); J v C  AC 668, HL; Re I (Minors) 23 April 1999 unreported, CA; Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights)  UKHL 40,  3 WLR 14; S v B (Abduction: Human Rights)  2 FLR 878; and Re C (A Child) (Abduction: Residence and Contact)  2 FLR 277. See J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapter 13.
83 Eg Weller v Associated Newspapers Ltd  EWCA Civ 1176; Skrine & Co v Euromoney Publications plc  EMLR 15; and Prudential Assurance Co Ltd v Prudential Insurance Co of America (No 2)  EWCA Civ 1154,  ETMR 29. See J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapter 10.
84 Eg Wilkinson v Kitzinger and Ors  EWHC 2022 (Fam), in which the petitioner, an English domiciliary, sought a declaration as to her marital status in terms of the Family Law Act 1986, s 55, failing which, a declaration of incompatibility, under s 4 of the 1998 Act, in relation to s 11(c) of the Matrimonial Causes Act 1973, which specifies that a marriage shall be void on the ground that parties are not respectively male and female. Dismissing the petition, the court concluded that neither Art 8 nor Art 12 of the ECHR guaranteed the petitioner the right to have her foreign same sex marriage recognised as having the status of a marriage in English law. See J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapter 11.
85 Eg Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights)  UKHL 40,  3 WLR 14. See J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapter 9.
86 Eg Shanshal v Al-Kishtaini  EWCA Civ 264 at –,  2 All ER (Comm) 601; Kuwait Airways Corpn v Iraqi Airways Co  2 AC 883; and Orams v Apostolides  EWHC 2226 (QB), . See Carruthers, paras 8.71–8.76 and J J Fawcett, M Ní Shúilleabháin and S Shah, Human Rights and Private International Law, (2016), Chapter 15.
87 Commentaries on the Conflict of Laws (1st edn), S 9.
88 Jenks, The Common Law of Mankind; Jessup, Transnational Law.
89 See, eg, Re Maldonado’s Estate  P 223; infra, pp 49–50.
90 Oppenheim, International Law (1967) 8th edn, Vol I, pp 4–5.
91 Eg the doctrine of sovereign immunity, infra, p 491 et seq. The interaction of public and private international law has been fully canvassed by Wortley (1954) I Hague Recueil 245; Hambro (1962) I Hague Recueil 1–68. See also Vallindas (1959) 8 ICLQ 620–4; Lipstein (1972) I Hague Recueil 104, 167–94; Kahn-Freund (1974) III Hague Recueil 147, 165–96; Lowenfeld (1979) II Hague Recueil 311; Mann, Foreign Affairs in English Courts (1986) and A Mills, The Confluence of Public and Private International Law (2009). See, for the interesting interface between private international law and public international law, Kuwait Airways Corpn v Iraqi Airways Co  2 AC 883, and comment thereon in Carruthers and Crawford (2003) 52 ICLQ 761.
92 For criticism of this title in the USA, see Maiea (1993) 56 Albany LR 753, 754.
93 Other terms which have been used to describe the subject are “International Private Law”, “Intermunicipal Law”, “Comity”, and the “Extra-territorial Recognition of Rights”.