PUBLIC INTERNATIONAL LAW V PRIVATE INTERNATIONAL LAW

Traditionally, public international law and private international law are viewed as two separate types of law; the former that regulates international relations between states and the latter between private individuals. Through their area of practice, the two types i.e. public international and private international law are often considered as having the role on a global level within developing the international community.

Public international law, or the rule of nations, is historically defined as the system of law regulating diplomatic affairs. So this system is subject to only governments, and general foreign organizations. The key emphasis is on creating a broad-scale and a basic minimum legal order. Private international law, or conflict of laws on the other hand, is a framework that combines the various laws from different countries. It addresses the issue of the applicability of international or domestic laws in the domestic courts.

Public international law

Traditionally, the State has been the main subject of public international law. Modern public international law has definitely evolved out of the idea of the (nation) state and its sovereignty. The law regulating relations between states was once known as the jus gentium or the law of nations. Although public international law is primarily concerned with relations between states, it also has individuals and organizations as its subjects.

The growth of multinational companies, with some of them producing higher annual sales over several years than some nations’ gross national product (GNP), poses key concerns. Corporations also set up networks and alliances, and codes of conduct that create norms in themselves. By giving out control, companies can form state actions. In certain countries such as the United States, in particular, companies play a significant role in the legislative process.

Private international law

Private International Law or the conflict of laws is the branch of legal service that is implemented when two or more sets of legal structures clash over a particular topic. It is a collection of procedural rules which determine which legal system and jurisdiction shall apply to a particular dispute. During colonial rule, India consisted of several states with distinct cultures and beliefs, often due to which there was a dispute between British law and personal laws in India, as various laws applied to citizens belonging to different beliefs.

Until independence and even till state recognition, India was a nation that had distinct legal structures between British India and native Indian princely states. In British India’s judicial system the judgment pronounced by the courts of princely states was considered as international judgments. During the British time, therefore, there was an inter-state conflict of laws.

Also during the British era when the Indian merchants were trading outside India, there were cases of commercial litigation with an international dimension in it before the Indian courts. Since India was a British colony, it followed nearly all British rules concerning private international law. Nevertheless, the irony of the situation is that the Indian legislation has struggled to pass sufficient legislation in the field of private international law, even after so many years of independence.

Legislation which addresses ties between private entities generally involved in cross-border transactions is known as Private International Law. Private International Law sets procedural rules relating to the substantive law applicable to the relationship between the parties. It includes the proper venue for resolving their conflicts and the effect that a foreign judgment is to be issued. It is primarily based on national or local legislation. Private International Law focuses primarily on individual-to-individual or business-to-business ties.

In a conventional context, “conflict of laws” is correlated with the rule which undertakes to resolve discrepancies between the laws of various countries, or to determine which law is applicable. For instance, if Infosys had to supply software to a Chinese buyer and the software failed, the buyer would probably want to sue Infosys in China. Private international law would recognize the relevant domestic law and resolve issues related to the dispute between the two laws, one, perhaps China’s law, and the other, perhaps India’s law, where Infosys has its headquarters.  Private international law also deals with the matter of the proper venue, such as whether a court may exercise personal authority over a foreign party and impose any judgment beyond the authority of the country in which it was entered.

A crucial element of private international law is its understanding that states vary in their application of the law and that it is important to balance that variation. Every society, in reality, has its own rules that are dependent on its own conventional, religious, cultural, or societal values.

 

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