THEORIES OF PRIVATE INTERNATIONAL LAW BY ABHISHEK RANA AT LEXCLIQ

Theories of Private International Law

 

The existence of Private International law has been justified on several doctrinal grounds. Several theories have come into existence. The important among them are as follows:

  • Statute Theory
  • International Theory
  • Territorial Theory or Theory of Acquired Rights
  • Local Law Theory
  • Theory of Justice

 

Statute Theory

  • This theory was propounded by Bartocus who is also called the father of Private International Law.
  • His primary aim was to resolve the conflict between the law of various city states and the city states and Italian Law on other side.
  • At that time law of the Italian city states[Pisa,Milan,Venice,Florence,Parma,Siena, Amalfi and Bologna] was contained in statutes.
  • At this period of history Italian states had flourished trade and commerce not merely with each other but also with countries like Spain, France, Arabia, Syria etc and hence Private International Law developed

 

Statues were classified into two heads:

  • Statuta Personalia: [Relating to Persons]That is the personal laws of the person i.e. marriage and religion. These statutes operate even when a person is domiciled in a different state or country.
  • Statuta Realia: [Relating to things] These are the statutes which are enacted by a particular state and effects operation only within the territorial limit of that particular state nothwithstanding the citizenship of the persons involved in the transaction of these statutes.
  • Statuta Mixta:[ Concerned with acts, rather than person or things] Mixed statutes were for all actions done in the country where the law was made and enforced.

International Theory

  • Founder of this theory is Savigny.
  • His idea about western civilization lies in a community of nations sharing Christianity and Roman Law as the source of common heritage.
  • The advocates of the internationalists doctrine believe that there is a body of customary and conventional rules developed in the family of nations which ought to be applied by the municipal courts to solve the problem of Conflict of Laws.
  • Any attempt to deviate from that body of rules gives rise to conflict of Laws.
  • As per this theory a common system of conflict of laws has developed in the international field.
  • This conflict may be over only if municipal courts with diverse rules of internal law recognize the uniform rules of customary law developed among the civilized nations.
  • A serious drawback of this theory is that unlike Public International Law there is no uniform customary law in Private International Law.
  • Customs and rules of law vary from one nation to another. Different religious beliefs have much to do with this.
  • Customs and rules of laws vary from nation to nation.
  • The theory fails to recognize the common law system.
  • Beale criticism of the theory was the most accurate, he pointed out that there is not one international legal system but two, having respectively a basis of Common Law and Roman Law.

Territorial Theory

  • This theory was first advocated by Muber and supported by writers like Dicey and Beale.
  • The central principle of this theory is that courts of a sovereign state do not apply foreign law nor do they directly enforce foreign judgment but they merely recognize the consequence of the operation of a foreign law within its relevant theory.
  • The merit of this theory is that it tries to reconcile the territoriality of law and the need for private international law.

This theory has been criticized by Cheshire :

  • Theory is unnecessary since application of foreign judgment is part of legal system of the states only and applying foreign laws and judgments do not tamper the sovereignty of the states.
  • If this theory is held to be true then the very need of Private International Law vanishes since territorial law would be enough to resolve the conflict of laws.

 

Local Law Theory

  • This theory was propounded by Walter Cook.
  • This theory is a slight variation of territorial theory and is based on the principle that each court applies its own laws.
  • No court ever applies any other law but its own, nor enforce any rights or obligation other than those created by its own law, but for reasons of social expedience and practical convenience it takes into account the laws of a foreign country into account.
  • According to Cook, rules of PIL would only consist of rules as to how a court would decide a dispute involving a foreign element.
  • The gist of this theory is that the court recognizes and enforces a local right that is one created by its own law.
  • But since the dispute in question has a foreign element the court would necessarily apply the law of the forum that would be applied in a case of a purely domestic dispute, but for reason of social expedience and practical convenience it takes into account the laws of a foreign country in question.
  • This theory has been called sterile since it affords no basis of development for the system of Private International Law.

Theory Of Justice

  • Theory was propounded by Graveson.
  • The main reason is development of Private International Law is the pragmatic and ethical.
  • The main goal was to achieve justice since a foreign question of law involving tort, contract, marriage would be best determined by the law of that foreign country.
  • So three cornerstone of development of Private International Law are Sociological, Ethical and Legal.
  • Sociologically, it is based on the international need for fair treatment in of private transactions of individuals. It is based on needs of justice.
  • Rules of PIL in England are built from precedent to precedent with the ultimate view of doing justice.
  • Justice, Equity and Good Conscience.

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