Materials on Conflict of Laws


For those of you interested in understanding the understanding the underlying issues and principles of private international law, also known as conflict of laws I have uploaded four books on the subject and some international conventions dealing with specific topics.

principles of conflict of laws (Abla J Mayss)

conflict of laws (J. G. Collier)

conflict of laws (John O’Brien)

conflict of laws in a globalised world (ECKART GOTTSCHALK et al (eds.)

Download International Conventions

The world is divided into States; the State is the basic political unit of the 20th century. Problems may arise between one State and another State or between the citizens of one State and the legal system of another State. The law governing such disputes is at sometimes referred to as international law. The expression ‘international law’ is itself divided into public international law and private international law (conflict of laws, as it is sometimes known)

In the most general terms, private international law is that body of law which comes into operation whenever a municipal court is faced with a claim that contains a foreign element. The expression ‘private international law’ is thought to have been first employed by Joseph Story and is commonly adopted in most civil law countries. It is the expression favoured within the European Union and by those international organizations of which the UK is a member. However, at the end of the 19th century, the influential jurist AV Dicey chose the title ‘conflict of laws’ for his treatise upon the subject. The expression, conflict of laws, has tended to be used in common law countries; the title itself is misleading in that the entire object of the subject is to promote harmony rather than conflict between the different legal systems of the world. Likewise, the title, private international law, is open to criticism in that it can lead to confusion with public international law and does not properly reflect the fact that the subject embraces the difficulties that arise when one State includes more than one jurisdiction.

John O’Brien, Conflict of Laws

 

There are obvious differences between conflict of laws, or private international law, and public international law. The latter is primarily concerned with the rules that govern relations between sovereign States and consisting, in general, of customary and treaty rules which bind States in their interrelations. The former, however, is designed to regulate disputes of a private nature. Conflict of laws is that part of municipal law which only comes into play when a dispute has a connection of some kind with one or more foreign legal systems. Every modern legal system has its own rules of private international law, and they differ from one another as much as any other branch of domestic law

Abla J Mayss, Principles of Conflict of Laws

Two names for the subject are in common use; however, they are interchangeable. Neither is wholly accurate or properly descriptive. The name ‘conflict of laws’ is somewhat misleading, since the object of this branch of the law is to eliminate any conflict between two or more systems of law which have competing claims to govern the issue which is before the court, rather than to provoke such conflict, as the words may appear to suggest. However, it was the name given to the subject by A. V. Dicey, when he published his treatise, the first coherent account by an English lawyer of its rules and principles, in 18963 and it has been hallowed by use ever since.

Another name is ‘private international law’, which is in common use in Europe. This is even more misleading than ‘conflict t of laws’, and each of its three words requires comment. ‘Private’ distinguishes the subject from ‘public’ international law, or international law simpliciter. The latter is the name for the body of rules and principles which governs states and international organisations in their mutual relations. It is administered through the International Court of Justice, other international courts and arbitral tribunals, international organisations and foreign offices, although, as part of a state’s municipal or domestic law, it is also applied by that state’s courts.  Its sources are primarily to be found in international treaties, the practice of states in their relations (or custom) and the general principles of municipal legal systems. Private international law is concerned with the legal relations between private individuals and corporations, though also with the relations between states and governments so far as their relationships with other entities are governed by municipal law, an example being a government which contracts with individuals and corporations by raising a loan from them.

J. G. Collier, Conflict of Laws

 

There are probably few things more intertwined with Arthur von Mehren’s life and work than his intellectual leadership relating to the Hague Conference on Private International Law’s efforts to create a global convention covering the jurisdiction and enforcement of judgments. After years of hard labor, on June 30, 2005, such efforts finally culminated in the adoption of the Convention on Choice of Court Agreements. The Convention, which bears Arthur’s actual signature, implemented, albeit not as broadly as originally intended,  much of what Arthur believed to be essential goals, first and foremost, international cooperation and harmonization. The Convention has therefore been rightly characterized as Arthur’s final legacy and his “baby.”

The adoption of the Hague Convention concluded a process that commenced more than a decade earlier and that was originally designed to create a comprehensive worldwide convention on the jurisdiction and recognition and the enforcement of foreign judgments.

ECKART GOTTSCHALK et al (eds.),   Conflict of Laws in a Globalized World

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