Private international law

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Learning Objectives

At the end of this module, you will be able to:

define the concept of private international law
locate online resources on private international law.

What is private international law?

Private international law is not a branch of international law, instead it is the body of domestic law which governs disputes between individuals or other non-state agents when these are complicated by cross-border elements. It covers matters such as intellectual property disputes, contractual disagreements between parties located in different countries, the legal implications of marriages between citizens from different nations and cross-borderl disputes relating to child custody or adoption. In common law jurisdictions, private international law is often termed the conflict of laws.

In public international law, the principle is well established that nations cannot invoke national laws (even their constitutions) as an excuse for non-compliance with international law. The situation in private international law is the exact opposite. Each nation has its own private international law, derived primarily from national case law and legislation.

This is not to say that treaty law is irrelevant to private international law. Most countries are party to bilateral or multilateral treaties which help to shape the decisions made by domestic courts when confronting disbutes with cross-border elements.

Private international law issues can often be analysed in terms of four basic questions:

under what circumstances might a domestic court exercise jurisdiction over a cross-border dispute
under what circumstances might a domestic court decline to exercise jurisdiction over a cross-border dispute falling within its potential jurisdiction
what is the law that the domestic court should apply in a cross-border dispute: should it apply domestic law or the law of another country?
under what circumstances should a domestic court recognise or enforce a foreign judgment.

The answers in each case depend on the details of the dispute and the country in question. In many countries the answers depend also on details of State or Territorial law. To a limited extent this is true also in Australia.

Forum non conveniens

The common law recognises the doctrine of forum non conveniens. This is the principle that a court can dismiss or "stay" a case, if it believes that it is an inappropriate or inconvenient jurisdiction for the defendant. In Australia, the traditional approach was that a court would apply this doctrine if it recognised that it was not the court "with which the action has the most real and substantial connection". In recent years, this approach has changed as a result of a series of High Court decisions: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 and Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10. These cases established that, even where the law which applies is that of a foreign country, a stay of proceedings will be granted on the only if the Australian court was a "clearly inappropriate forum".

The precedents set by the High Court have raised the spectre of forum shopping, the practice of plantiffs choosing to begin a case in an inappropriate forum merely to gain an advantage in the proceedings.

Consider the decision in Puttick v Fletcher Challenge Forests Pty Ltd [2007] VSCA 264). How has the Victorian Court of Appeal interpreted the Renault v Zhang (2002) decision?

Why is private international law important?

Globalisation has greatly increased the significance of this aspect of private international law. Areas such as child protection, family law and intercountry adoption are drawing growing attention, as are issues related to legal cooperation across jurisdictions and the international harmonisation of business law.

Guides to the online sources of private international law

ASIL Guide to Electronic Resources for International Law: Private International Law.
Guide on the Harmonization of International Commercial Law. This page is comprehensive and relatively up-to-date.

UN Bodies

Agencies of the United Nations play a major role in the harmonisation of private international law and in coordinating legal enforcement activities across borders.

UNCITRAL. The United Nations Commission on International Trade Law aims to assist in the progressive harmonisation the law relating to international trade. Part of its task is to prepare conventions and model laws in different areas of trade law. The Commission's Web site includes Case Law on UNCITRAL Texts (CLOUT) : this is a searchable database of court decisions and arbitral awards relating to the conventions and model laws issued by the Commission. In addition, the site has a bibliography of recent writings related to the work of UNCITRAL. This bibliography is searchable through the UNCITRAL On-line Public Access Catalogue (OPAC). Instructions using the UNCITRAL OPAC are available on the UNCITRAL OPAC page. The United Nations Commission on International Trade Law Yearbook is available to subscribers through Hein Online.
UNIDROIT. The International Institute for the Unification of Private Law works to modernise, harmonise and co-ordinate private law in different countries. Its main focus is commercial law. The Institute site includes the text and status of UNIDROIT Conventions, Model Laws, Principles and Guides. In addition, it provides access to UNILEX, a database of international case lawrelating to the UNIDROIT Principles of International Commercial Contracts, and UNILAW, a database of case law relating to uniform law conventions and other UNIDROIT instruments. The site also has a searchable index of the contents of the journal Uniform Law Review since 1985.

Non-UN Agencies

In addition to agencies of the UN, there are a number of other bodies which work towards the harmonisation and unification of private international law:

Hague Conference on Private International Law. The Hague Conference work for the progressive unification of the rules of private international law. It is has sponsored conventions in various areas of private law, including issues such as intercountry adoption and child abduction. The work of the Hague Conference has been particularly significant in Australia. More than any other country, Australia has worked to implement the recommendations of the Hague Conference in the area of family law.
International Chamber of Commerce (ICCI). The International Chamber of Commerce works to establish internationally agreed rules and standards for companies operating in transnational environments.

Online Databases

CLEA. The Collection of Laws for Electronic Access (CLEA) provides the full-text of legislation, multilateral and regional treaties relating intellectual property rights.
CISG Database. This is comprehensive database relating to the Convention on the International Scale of Goods (CISG), including case law, guides, texts and bibliographies.
JurisInternational. JurisInternational offers a searchable database which includes the full-text and summary of various international conventions, model laws, as well as standards and customs of international trade with the list of ratifications and adhesions.

Summary