Private International Law can be interpreted as the choice of law to apply when there is a conflict about the law which would apply. For example, if there is a dispute regarding a foreigner, what jurisdiction should apply, selection of the forum, renvoi: which can be considered as the transfer of proceedings, choice of law that should be applied, enforcement of a foreign judgment. In countries like the USA, Canada and UK normally call this field of law, as the law of conflicts.
The main concerning factor in Private International law is Nationality. There are people who cannot easily connect to any nationality, for example, consider a person who has parents in different Nations and Resides in a totally different country. The General practice is the Judge of the forum will decide whether the forum is correct or not. But when it’s come to dual citizenship the court normally will not consider the foreign citizenship as long as the matter is much connected to their nation. Therefore the foreign nationality will have no bearing on the case. What we should bear in mind is more often having dual citizenship is something that people would like to have to achieve some expensive lifestyle, but sometimes they get foreign citizenship to avoid their own national laws.
But actually, citizenship differs from Nationality. Nationality is used in public law to recognize their own nationals from the others. The voting rights in national elections are normally for the citizens. We all know that there can be different nationals as citizens in a country. They even can have different types of special laws regarding their Marriage and Testimentry etc. So the conflicts can arouse even inside the Country For an example, what laws govern divorce if spouses have different nationalities? How the law should be applicable when there is a matter regarding a mortgage between different nationals?
However, the following concepts of private international law will be concerned according to the situations and based on the facts of the case.
- Lex fori – Lex fori is the Latin term for the law of the forum. Which also can be mentioned as the choice of law. In simple, the court which is already chosen for the proceedings.
- Lex domicilii – Lex domicilii is the Latin term for “law of the domicile” or the law of the country of the person permanently resides.
- Lex loci solutionis- Lex loci solution is the Latin term for “law of the place of performance”. Which is known as the law applied in the place of an event.
- Lex loci contractus – Lex loci contractus is the Latin term for law of the place where the contract is made. This is more often used across the world.
- Lex loci arbitri – Lex loci arbitri is the Latin term for “law of the place where arbitration is to take place”. This concept has become very popular lately with the arbitration conditions in the written contracts.
- Lex loci delicti commissi – Lex loci delicti commissi is the Latin term for law of the place where the delict has committed. For instance, the place where an accident took place.
- Lex loci rei sitae – Lex loci rei sitae is the Latin for the law of the place where the property is situated. This concept is simply known as lex situs too.
- Lex causae – Lex causae is the Latin term for law of the cause or the law chosen by the forum court.
Somehow when a case comes before a court and the essential factors of the case are local, the court will initially apply the lex fori, but when there are more alien elements to the case, the court will consider the other concepts of the conflict of laws to decide that which court has the jurisdiction to hear the case. It is the duty of the court to reconsider the fact of the case and decide whether the cause of action is correct as mentioned by the parties. For example, whether the case is about arbitration, or about an immovable property or Divorce. That will help to send the case to the proper court and let the justice served. Most of the time in the online contracts it is hard to determine the place where the contract signed or the Lex contractus. To avoid such situations it is important to include conditions regarding the legal process on how to act when the contract hasn’t progressed well.
The doctrine of ‘Renvoi’ can be considered as one of the fundamentals in Private International Law. The Court will look into the issue and see if it can be solved as per the law of another nation. When there are instances where it is difficult to send the case to a foreign forum this concept will be much useful. It’s a well-known method to take care of the cases in which there exists a foreign element in the said cause of action.
The main importance of the Doctrine of Renvoi is to avoid forum shopping. Forum shopping is another word to file the case in the court that the party can assume to get the most favourable judgement. So the court itself will apply the foreign law to serve justice and not to give a chance to forum shopping by any means. The word Renvoi originates from a French word which has the meaning ‘return unopened’ or send back. So that, sometimes the court will not hesitate to send the case to the correct forum if the court detected any evidence of the said malafide choice.
While these areas remain as the main concepts of private international law, the majority of practitioners and international organizations are trying their best to achieve a harmonized legal system. In the various international conferences which private international principles and instruments are being developed, had given more importance to the harmonization of legal rules across different legal systems around the world. Even Some of the international organizations are specifically concerned for the development of multilateral private international law treaties, and model laws harmonise the private law of different jurisdictions.
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