Private International Law Comprehensive Exam With Complete Verified Answers.
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Module
PRIVATE LAW
Institution
PRIVATE LAW
Definition (and nature) of PIL - correct answer PIL - area of law that deals with private law matters involving a foriegn element
--'private' e.g. contract, delict, UE, marriage/divorce, adoption + succession
--'foreign element' connects a matter ...
Definition (and nature) of PIL - correct answer PIL - area of law that deals with
private law matters involving a foriegn element
--'private' e.g. contract, delict, UE, marriage/divorce, adoption + succession
--'foreign element' connects a matter to more than one legal system
e.g. parties could be domiciled or habitually resident in different countries; --or the event giving rise to
the claim may have occurred abroad;
--or a party may claim ownership of a moveable property that is situated abroad.
PIL - 3 main aspects
(why determine q's - each country haw their own court system aka no one single body of law/court for
the whol world to resolve disputes
--How to determine q's - according to PIL rules which differ from one legal system to another unless
harmonized) - correct answer 1) Jurisdiction: Which court has jurisdiction to
hear the case?
2) Applicable law: Which legal system should determine the merits of the dispute?
3) Recognition and enforcement of foreign judgments: Will/can a judgment given by the courts of State
A be recognised or enforced in State B?
PIL provides answer to all these Q's - they are dealt with seperatly and they are dealt with according to
different rules
Examples in notes if you want more
PIL - 3 main aspects/q's - order of answering - correct answer 1) Jurisdiction:
,The first question to be determined in a case ----Which court has jurisdiction to hear the case?
2) Applicable law:
If the court decides that it has jurisdiction, the second question to be determined is the applicable law.
----Which law will the court apply?
***PIL does not resolve the substance of the dispute. It does not determine the rights and obligations of
the parties.
(courts will typically find experts in the foreign law and ask q's)
3) Recognition and enforcement:
After a dispute has been heard and decided in a court, the recognition and enforcement question may
arise. (may be no need)
Will/can a judgment given by the courts of State A be recognised or enforced in another jurisdiction?
e.g. custody - recognize divorce in both Turkey and USA
Accident - one party sued damages, italy court heard case and thought one should pay damages BUT
defendant has NO assets in Italy - lives in Scotland.
Does not want to comply, ask scots courts to enforce although if he pays straight out then no need)
Name of subject - correct answer 3 names used:
-Conflict of laws
-Private international law
-International Private law (not used in England)
---In Scotland all are used interchangeably
'Conflict' (in terms of first one) - conflict as to which court will hear the case and which law will apply to
the case
'Private' + 'international' (in terms of other two meanings) - P = PIL deals with private law matters
between private parties
I = refers to the EXISTENCE of a foreign element
,Justification for PIL? - correct answer Comity (courts respect each other -
rec/enforce your judgement and you do mine)
Doing justice to the parties (giving effect to the legitimate expectations of parties,
respecting party autonomy
Achieving uniformity of decisions (reducing forum shopping, increasing legal certainty
Relevance of PIL - correct answer PIL is not a new discipline. Its origin goes
back to the Roman Empire where personal law varied depending on whether one was a citizen
PIL is becoming more and more important due to the globalisation and regional integration:
---Cross-border business transactions
---Cross-border consumer transactions
---International family law issues (e.g. divorce; child abduction; adoption)
EUPILLAR project findings for demand for cross border legal advice in Scotland (only EU related disputes)
---Contract - High in oil/gas
---Delict - reasonable demand in personal injury cases (scot travelling abroad or while travelling, foreign
nationals who are injured abroad but but reside here or foreign nationals injured here)
---Family - demand for cross-border legal advice here sought by foreign nationals + domiciled Scottish
expats. Claimants not habitually resident in Scotland come up increasingly regularly
Sources of PIL - correct answer PIL - part of national; law of EACH state -
Scotland has its own principles of PIL ----(played important role in PIL like the Doctrine of Forum non
Conveniens which gives a court discretion to hear a case or send to another more appropriate venue)
The sources of PIL include:
--common law,
, --acts of Parliament
--act of EU institutions
--international conventions adopted by the Hague Conference on Private International Law.
--Scottish courts refer extensively to English literature and case-law in their judgments.
PIL and other areas of Law - correct answer PIL has connections with different
areas of law:
--All areas of private law (can have a foriegn element - contract, delict, succession, property)
--EU law (harmonised by EU regulations relevant with private law)
--Comparative law (sometimes used as a method in PIL)
--Public international law (relations between states though)
--Human rights law (particularly procedural q's can be relevant)
Harmonsiation effects - correct answer PIL rules differ from one legal system to
another.
----Through harmonisation, the differences between the legal systems are reduced (private law useful)
Harmonisation at the EU level:
--PIL has been largely harmonised in the EU.
--Aims: increasing legal predictability and certainty, resolution of conflicts of jurisdiction, enabling
mutual recognition and enforcement
-Successful, Rome I/Rome II for example
Harmonisation at international level:
--Hague Conference on Private International Law
-A global inter-govermental organisation working for the "progressive unification" of the PIL rules in a
wide range of areas
--has currently 82 Members: 81 States and the EU
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