International Law, Private

I INTRODUCTION

International Law, Private, that part of the law of a country that applies to cases involving the foreign law.

II CONCERNS

Private international law is concerned with various matters that are handled by a court of law in the following order. First, the court must decide whether or not it has jurisdiction in a case involving foreign elements—for example, a case that involves a contract made or fulfilled abroad or a case in which judicial determination has already been made in another country. Secondly, once the court has assumed jurisdiction, it must decide whether to apply the laws of its own country or that of the foreign country involved. Thirdly, the court must determine the circumstances under which decisions of a foreign court are to be upheld. Lastly, the court must determine the validity of contracts, testaments, marriages, divorces, adoptions, and acts other than court decisions made in foreign countries in accord with the laws of those countries.

These determinations are made by a court under statutes enacted by the national legislature of the country in which it is situated. Such statutes comprise an integral part of the law of that country. To the extent, however, that these statutes provide for the enforcement of the laws of foreign countries, they are part of international law—hence the designation “private international law”. To the extent that they relate to the determination of conflicting laws based on diverse national origins, they are said to concern the conflict of law.

Generally, the courts can act against any person in the jurisdiction when a case is started. A case may be halted, however, if it can be shown that it is wrong for it to be heard in the jurisdiction. Some countries other than England and Wales (including Scotland and the United States) have a wider rule, whereby it is necessary to show only that hearing the case elsewhere is more appropriate. The Hague Convention in Europe has established a series of rules that the court must apply when deciding this issue between the courts of signatory countries to the convention.

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A foreign judgment can be enforced as though it were a judgment of the domestic court by registering it in the domestic court. Exceptionally, registration may be set aside if fraud can be proved as a basis for the judgment, or strong reasons of public policy call for the judgment to be rejected. Many countries took that position, for example, when dealing with judgments from Nazi Germany before the war.

III RECOGNITION OF JUDGMENTS

In general international practice, whenever the recognition of foreign laws or of foreign legal acts is specifically prohibited by statute or would result in unconscionable injury or contravene the public policy of a nation, the courts of that country do not grant such recognition.

The judgments of duly constituted courts are usually recognized and enforced in a foreign country, subject only to scrutiny as to irregularity, fraud, or lack of jurisdiction.

Reviewed By:
Simon Levene