Private international law is the branch of law that deals with international conflicts over competent jurisdiction, conflicts of laws, and international procedural cooperation; in cases where private interests are affected.
Private international law is international due to its object, not due to its origin, since it is essentially national law. Internationality means contact with a legal system other than the order of the judge who must resolve the controversy.[1].
It deals with issues of great importance about legal relations between States. In this order of things, it regulates execuatur and extradition.
Ideological Characteristic
According to the author Werner Goldschmidt, Private International Law is based on a kind of ideology called "legal cosmopolitanism", which professes respect for foreign law and its application through imitation by local courts. This ideology would be contrary to "legal chauvinism", which sees in foreign law "an invading army that a patriotic jurist must put to flight".[2].
The privatist conception of private international law
“International private relations” are those that in their composition present foreign elements, whether subjective or objective, the former referring to people and the latter to goods or legal acts that make up said relationship. (González Martín 2008).
The sources of private international law can be four; those of autonomous private international law, which are purely national legal systems; those of conventional private international law, made up of bilateral or multilateral international treaties; those of institutional private international law, which are made up of legal systems derived from a process of economic integration, such as the European Union or Mercosur; and those of transnational private international law, which is made up of the so-called New Lex Mercatoria or New Law Merchant"), in its substantive and adjective aspects. Fernández Rozas, José Carlos and Sánchez Lorenzo, Sixto 2001).
In any case, the sources of private international law are part of the national legal system, since international treaties must be approved and ratified in accordance with national constitutional norms and, where appropriate, the norms of institutional private international law must be integrated into the same national system by the methods determined by national law. Regarding the case of the lex mercatoria, we can affirm that its existence depends on the recognition of the contractual freedom granted to individuals.
International contract dispute
Introduction
Private international law is the branch of law that deals with international conflicts over competent jurisdiction, conflicts of laws, and international procedural cooperation; in cases where private interests are affected.
Private international law is international due to its object, not due to its origin, since it is essentially national law. Internationality means contact with a legal system other than the order of the judge who must resolve the controversy.[1].
It deals with issues of great importance about legal relations between States. In this order of things, it regulates execuatur and extradition.
Ideological Characteristic
According to the author Werner Goldschmidt, Private International Law is based on a kind of ideology called "legal cosmopolitanism", which professes respect for foreign law and its application through imitation by local courts. This ideology would be contrary to "legal chauvinism", which sees in foreign law "an invading army that a patriotic jurist must put to flight".[2].
The privatist conception of private international law
“International private relations” are those that in their composition present foreign elements, whether subjective or objective, the former referring to people and the latter to goods or legal acts that make up said relationship. (González Martín 2008).
The sources of private international law can be four; those of autonomous private international law, which are purely national legal systems; those of conventional private international law, made up of bilateral or multilateral international treaties; those of institutional private international law, which are made up of legal systems derived from a process of economic integration, such as the European Union or Mercosur; and those of transnational private international law, which is made up of the so-called New Lex Mercatoria New Law Merchant").
In this sense, it can be stated that private international law is the sector of national law that regulates private international relations. (González Campos, Julio Diego 2004).
According to the school of strict conception, followed mainly in Germany and Italy, only the applicable law "or conflict of laws") is attributed as content to the subject, while the issues of international judicial jurisdiction "and recognition and enforcement of foreign judicial sentences or foreign arbitration awards") are studied as part of the so-called international civil procedural law"). (Rigaux, Francois, 1985).
On the other hand, it is important to highlight that the school of broad conception, followed originating in France and with strong influence in much of Latin America, points out that the subjects of study of the subject are nationality, the legal status of the foreigner "and conflicts of laws") and conflicts of jurisdiction. (Pereznieto Castro, Leonel, 2006).
Finally, according to the intermediate school of conception, the thematic content of private international law is the so-called international judicial jurisdiction ("international judicial jurisdiction"), the applicable law ("applicable law") and the recognition and execution of foreign judicial rulings or foreign arbitration awards"). (Clarkson, CMV & Hill, Jonathan, 2006).
International judicial jurisdiction") is the sector of private international law that determines the cases and circumstances under which a national judge will hear a case arising from a private international relationship.
"Applicable law") is the sector dedicated to determining what law will be in accordance with which the substance of the matter derived from a private international relationship will be resolved, within which there are various regulatory techniques, namely:
• The conflict rule"),
• The special material norm") (within which I include the material norm of private international law") and the material norm of uniform law")),
• The extension norm") and,.
• The rule of immediate application").
Finally, the recognition and execution of foreign judicial rulings or foreign arbitration awards") is the specific sector of private international law that determines the requirements and impediments that must be met in cases in which the recognition and, where appropriate, execution of a judgment or award issued abroad must be known.
Issues of private international law
Application of foreign law
When an indirect rule refers to the application of foreign law, it is necessary to discern whether it refers to foreign law as such or its consideration as a mere fact.
Subsequently, in the procedural aspect, it must be decided whether the foreign law is applied ex officio by the judge or only applies when it has been alleged and duly proven by the party that requires it.
Classifications
Lex fori: means the law of the judge who hears the matter. When a matter of an international nature is presented to a judge, he must ask himself about the law applicable to said matter. In some cases the lex fori will apply. Traditionally, the lex fori regulates matters of
procedure, whatever the lex causae.
The ordering
competent legal to qualify is the civil law of the judge who hears the lawsuit. The legal basis: it is maintained that the legislator, by declaring a foreign law competent, restricts the application of its internal rules, that is, the definition of the terms of the indirect norm must be given in accordance with the judge's law.
The practical basis: Niboyet points out that a need
practice leads to following the lex fori, it says that the case of the holographic will of the Dutch is governed by the law of the place of celebration of the act as to the form, for the capacity by the national law of the incapable.
How to determine the competent law without previously setting the qualification? For him, only prior qualification is possible by applying lex fori.
The sovereignty argument is abandoned, and the theory is mainly affirmed for the following reasons. The determination of the foreign law applicable to a legal relationship presupposes the prior identification of the competent law, but to do so the relationship must be qualified, and that function is only the responsibility of the lex fori. On the other hand, the need to
coherence that must exist between the categories used in the substantive norms and those used in the rules of private international law of a
same legal system.
Bartin reserves the classification of goods to the lex causae, and in matters of autonomy of will, as Niboyet also does.
The criticism that can be made of this theory is that it leads
to a limitation of the application of foreign law.
Lex causae: designates the law that regulates the substance of the matter, once designated by
conflict of laws rules.
The qualification must be given by the law competent to govern the legal relationship. Despagnet says that when the legislator orders the application of a foreign law to a certain relationship, he wants that foreign law to be applied.
as it organizes and regulates said relationship.
This author excludes connection points from the qualification according to lex causae. Distinguishes the definition of the terms contained in the legal type from that of the connection points. The qualification of these corresponds to the lex fori. Criterion that Wolff shares when attributing to the lex fori the defining function of
the terms "nationality or domicile". This theory is criticized saying that it creates a vicious circle, since it is necessary to previously qualify the legal relationship to determine the law.
competent. The determination of the right presupposes the qualification of the legal relationship. The problem with lex causae is that it can
refer to another right and, therefore, the lex causae is not definitive either.
Previous question
To resolve a question of private international law it may be necessary to resolve a prior or preliminary question related to the main one. For example, in an international succession (main issue) it is necessary to resolve the validity of an adoption (prior issue). That is to say, the "main issue" always depends on the resolution of the so-called "incidental" issue. These incidental issues can be one or several issues to be resolved by the competent judge, and once the "previous issue" has been resolved, the course of the main issue continues. Let us remember that the previous question is presented after determining the law applicable to the "main question", regardless of whether the solution to the main question depends on it. What is analyzed is what law is applicable to the previous question.
It is a preliminary or incidental issue that arises when in a private law case with foreign elements the main resolution is subject to the resolution of this incidental issue. For example, in order to decide the hereditary vocation between surviving spouses first
Family of British nationality originally from India who have several legitimate children and an adopted son. Soccalingam adoption is done according to Indian (British) law.
Soccalingam marries and has a legitimate son.
Soccalingam
He died before his adoptive father, his adoptive father had property in Cochinchina belonging to the French State. Your
adoptive father died in 1925, but in 1922 he left a will in which he disinherited his adoptive grandson. The will is made before a notary of the Indies
French.
Soccalingam's son is represented by his mother, Soccalingam's wife. The
The mother challenges the will, based on the Napoleonic Code, which establishes that properties located in France must be governed by French law, which calls for succession as legitimate heir to the adopted grandson who, by right of representation, occupies the place of the predeceased father.
so much
the Saigon Court, as the Court and the Court of Cassation reject the
Ponnoucannamelle's claim.
Recognizes that adoption is valid by the law of India, the personal law of the adopter
and adopted, but refuses to recognize succession effects to this adoption with respect to the properties of the adopting deceased located in Cochinchina because the rules on succession transfer of properties located in France are
are linked to the royal statute and are governed exclusively by French law and, secondly, because art. 344 of the French Code prohibits adoption
Forwarding
(Case in which the resubmission arises) JURISPRUDENCE – FORGO CASE.
A man born out of wedlock in Bavaria in 1801, moves with his mother to France. Forgo marries and survives his wife, leaving no children and when he died in 1869 he did not leave a will.
Litigation formed by the collaterals of Forgo's mother and the French Treasury around
to the relict furniture heritage located in France.
The collaterals invoked Bavarian law, according to which they inherited collateral relatives, while the treasury relied on French law, in which
Collaterals of extramarital parents do not inherit.
Forgo's legal domicile was in Bavaria, although his de facto domicile was France. The French court first applies Bavarian law because Forgo did not have legal domicile in France and succession law is governed by nationality law, it refers the case to Bavarian law, but the rules of Bavarian private international law understand that in the institution of succession the last domicile of the deceased governs; Consequently, the judges of France consider themselves remanded and apply their law, denying the claim to the collaterals and declaring the succession vacant.
FORWARDING CLASSES
First degree: occurs when the regulation of the private legal relationship returns to the starting point and the court accepts it by applying its law.
Second degree: occurs when the judge hearing the case declares applicable a foreign law whose private international law sends it to a third State, for example an Argentine domiciled in the United Kingdom and who dies in France. French private international law says that the law of nationality applies, meaning that the deceased is Argentine, so it refers to Argentine law, Argentine private international law establishes that the succession is governed by the law of the last domicile of the deceased, the deceased lived in the United Kingdom, so it refers to the United Kingdom.
Minimum reference theory: this theory states that the legal consequence of the indirect norm when declaring foreign law applicable refers to domestic law to the exclusion of foreign private international law.
Theory of the middle reference: the rule of private international law of the judge refers to foreign private international law and foreign internal law, but it is necessary that the foreign law accepts the referral and admits the application of its substantive law, otherwise it could happen that the private international law of that foreign country does not accept the application of its substantive law, that is, it would be giving up and consequently returns to the State
original and this must look for another point of connection with another right.
: the judge's dip rule indicates another as applicable
Limits to the Application of Foreign Law
Fraud of the law
Through a series of acts, which in isolation may be lawful, an attempt is made to escape the application of the law that would normally govern the international relationship, submitting to a more beneficial one.
International Public Order
More correctly called "Public Order of Private International Law",[3] it is an exception to the application of competent foreign law, due to its manifest incompatibility with those principles and values that are considered fundamental in the legal system of the forum.
Unknown Institution
Savigny proposed as a limit to the application of foreign law, those "institutions of a foreign State whose existence is not recognized in ours, and which, consequently, cannot claim the protection of the courts."[4].
References
[1] ↑ López Herrera, Edgardo (2015). «I». Manual de Derecho Internacional Privado. Argentina: Abeledoperot. p. 4. ISBN 978-950-20-2653-4.
[2] ↑ Werner, Goldschmidt (2002). Derecho Internacional Privado, el derecho de la tolerancia. Buenos Aires: Depalma. p. 71. ISBN 950-14-1854-5.
[3] ↑ Scotti, Luciana (2017). «V». Manual de Derecho Internacional Privado. Argentina: LALEY. p. 155. ISBN 978-987-03-3197-1.
[4] ↑ Scotti, Luciana. «vi». Manual de Derecho Internacional Privado. LALEY. p. 181. ISBN 2018 |isbn= incorrecto (ayuda).
or
, in its substantive and adjective aspects. Fernández Rozas, José Carlos and Sánchez Lorenzo, Sixto 2001)
In any case, the sources of private international law are part of the national legal system, since international treaties must be approved and ratified in accordance with national constitutional norms and, where appropriate, the norms of institutional private international law must be integrated into the same national system by the methods determined by national law. Regarding the case of the lex mercatoria, we can affirm that its existence depends on the recognition of the contractual freedom granted to individuals.
In this sense, it can be stated that private international law is the sector of national law that regulates private international relations. (González Campos, Julio Diego 2004).
According to the school of strict conception, followed mainly in Germany and Italy, only the applicable law "or conflict of laws") is attributed as content to the subject, while the issues of international judicial jurisdiction "and recognition and enforcement of foreign judicial sentences or foreign arbitration awards") are studied as part of the so-called international civil procedural law"). (Rigaux, Francois, 1985).
On the other hand, it is important to highlight that the school of broad conception, followed originating in France and with strong influence in much of Latin America, points out that the subjects of study of the subject are nationality, the legal status of the foreigner "and conflicts of laws") and conflicts of jurisdiction. (Pereznieto Castro, Leonel, 2006).
Finally, according to the intermediate school of conception, the thematic content of private international law is the so-called international judicial jurisdiction ("international judicial jurisdiction"), the applicable law ("applicable law") and the recognition and execution of foreign judicial rulings or foreign arbitration awards"). (Clarkson, CMV & Hill, Jonathan, 2006).
International judicial jurisdiction") is the sector of private international law that determines the cases and circumstances under which a national judge will hear a case arising from a private international relationship.
"Applicable law") is the sector dedicated to determining what law will be in accordance with which the substance of the matter derived from a private international relationship will be resolved, within which there are various regulatory techniques, namely:
• The conflict rule"),
• The special material norm") (within which I include the material norm of private international law") and the material norm of uniform law")),
• The extension norm") and,.
• The rule of immediate application").
Finally, the recognition and execution of foreign judicial rulings or foreign arbitration awards") is the specific sector of private international law that determines the requirements and impediments that must be met in cases in which the recognition and, where appropriate, execution of a judgment or award issued abroad must be known.
Issues of private international law
Application of foreign law
When an indirect rule refers to the application of foreign law, it is necessary to discern whether it refers to foreign law as such or its consideration as a mere fact.
Subsequently, in the procedural aspect, it must be decided whether the foreign law is applied ex officio by the judge or only applies when it has been alleged and duly proven by the party that requires it.
Classifications
Lex fori: means the law of the judge who hears the matter. When a matter of an international nature is presented to a judge, he must ask himself about the law applicable to said matter. In some cases the lex fori will apply. Traditionally, the lex fori regulates matters of
procedure, whatever the lex causae.
The ordering
competent legal to qualify is the civil law of the judge who hears the lawsuit. The legal basis: it is maintained that the legislator, by declaring a foreign law competent, restricts the application of its internal rules, that is, the definition of the terms of the indirect norm must be given in accordance with the judge's law.
The practical basis: Niboyet points out that a need
practice leads to following the lex fori, it says that the case of the holographic will of the Dutch is governed by the law of the place of celebration of the act as to the form, for the capacity by the national law of the incapable.
How to determine the competent law without previously setting the qualification? For him, only prior qualification is possible by applying lex fori.
The sovereignty argument is abandoned, and the theory is mainly affirmed for the following reasons. The determination of the foreign law applicable to a legal relationship presupposes the prior identification of the competent law, but to do so the relationship must be qualified, and that function is only the responsibility of the lex fori. On the other hand, the need to
coherence that must exist between the categories used in the substantive norms and those used in the rules of private international law of a
same legal system.
Bartin reserves the classification of goods to the lex causae, and in matters of autonomy of will, as Niboyet also does.
The criticism that can be made of this theory is that it leads
to a limitation of the application of foreign law.
Lex causae: designates the law that regulates the substance of the matter, once designated by
conflict of laws rules.
The qualification must be given by the law competent to govern the legal relationship. Despagnet says that when the legislator orders the application of a foreign law to a certain relationship, he wants that foreign law to be applied.
as it organizes and regulates said relationship.
This author excludes connection points from the qualification according to lex causae. Distinguishes the definition of the terms contained in the legal type from that of the connection points. The qualification of these corresponds to the lex fori. Criterion that Wolff shares when attributing to the lex fori the defining function of
the terms "nationality or domicile". This theory is criticized saying that it creates a vicious circle, since it is necessary to previously qualify the legal relationship to determine the law.
competent. The determination of the right presupposes the qualification of the legal relationship. The problem with lex causae is that it can
refer to another right and, therefore, the lex causae is not definitive either.
Previous question
To resolve a question of private international law it may be necessary to resolve a prior or preliminary question related to the main one. For example, in an international succession (main issue) it is necessary to resolve the validity of an adoption (prior issue). That is to say, the "main issue" always depends on the resolution of the so-called "incidental" issue. These incidental issues can be one or several issues to be resolved by the competent judge, and once the "previous issue" has been resolved, the course of the main issue continues. Let us remember that the previous question is presented after determining the law applicable to the "main question", regardless of whether the solution to the main question depends on it. What is analyzed is what law is applicable to the previous question.
It is a preliminary or incidental issue that arises when in a private law case with foreign elements the main resolution is subject to the resolution of this incidental issue. For example, in order to decide the hereditary vocation between surviving spouses first
Family of British nationality originally from India who have several legitimate children and an adopted son. Soccalingam adoption is done according to Indian (British) law.
Soccalingam marries and has a legitimate son.
Soccalingam
He died before his adoptive father, his adoptive father had property in Cochinchina belonging to the French State. Your
adoptive father died in 1925, but in 1922 he left a will in which he disinherited his adoptive grandson. The will is made before a notary of the Indies
French.
Soccalingam's son is represented by his mother, Soccalingam's wife. The
The mother challenges the will, based on the Napoleonic Code, which establishes that properties located in France must be governed by French law, which calls for succession as legitimate heir to the adopted grandson who, by right of representation, occupies the place of the predeceased father.
so much
the Saigon Court, as the Court and the Court of Cassation reject the
Ponnoucannamelle's claim.
Recognizes that adoption is valid by the law of India, the personal law of the adopter
and adopted, but refuses to recognize succession effects to this adoption with respect to the properties of the adopting deceased located in Cochinchina because the rules on succession transfer of properties located in France are
are linked to the royal statute and are governed exclusively by French law and, secondly, because art. 344 of the French Code prohibits adoption
Forwarding
(Case in which the resubmission arises) JURISPRUDENCE – FORGO CASE.
A man born out of wedlock in Bavaria in 1801, moves with his mother to France. Forgo marries and survives his wife, leaving no children and when he died in 1869 he did not leave a will.
Litigation formed by the collaterals of Forgo's mother and the French Treasury around
to the relict furniture heritage located in France.
The collaterals invoked Bavarian law, according to which they inherited collateral relatives, while the treasury relied on French law, in which
Collaterals of extramarital parents do not inherit.
Forgo's legal domicile was in Bavaria, although his de facto domicile was France. The French court first applies Bavarian law because Forgo did not have legal domicile in France and succession law is governed by nationality law, it refers the case to Bavarian law, but the rules of Bavarian private international law understand that in the institution of succession the last domicile of the deceased governs; Consequently, the judges of France consider themselves remanded and apply their law, denying the claim to the collaterals and declaring the succession vacant.
FORWARDING CLASSES
First degree: occurs when the regulation of the private legal relationship returns to the starting point and the court accepts it by applying its law.
Second degree: occurs when the judge hearing the case declares applicable a foreign law whose private international law sends it to a third State, for example an Argentine domiciled in the United Kingdom and who dies in France. French private international law says that the law of nationality applies, meaning that the deceased is Argentine, so it refers to Argentine law, Argentine private international law establishes that the succession is governed by the law of the last domicile of the deceased, the deceased lived in the United Kingdom, so it refers to the United Kingdom.
Minimum reference theory: this theory states that the legal consequence of the indirect norm when declaring foreign law applicable refers to domestic law to the exclusion of foreign private international law.
Theory of the middle reference: the rule of private international law of the judge refers to foreign private international law and foreign internal law, but it is necessary that the foreign law accepts the referral and admits the application of its substantive law, otherwise it could happen that the private international law of that foreign country does not accept the application of its substantive law, that is, it would be giving up and consequently returns to the State
original and this must look for another point of connection with another right.
: the judge's dip rule indicates another as applicable
Limits to the Application of Foreign Law
Fraud of the law
Through a series of acts, which in isolation may be lawful, an attempt is made to escape the application of the law that would normally govern the international relationship, submitting to a more beneficial one.
International Public Order
More correctly called "Public Order of Private International Law",[3] it is an exception to the application of competent foreign law, due to its manifest incompatibility with those principles and values that are considered fundamental in the legal system of the forum.
Unknown Institution
Savigny proposed as a limit to the application of foreign law, those "institutions of a foreign State whose existence is not recognized in ours, and which, consequently, cannot claim the protection of the courts."[4].
References
[1] ↑ López Herrera, Edgardo (2015). «I». Manual de Derecho Internacional Privado. Argentina: Abeledoperot. p. 4. ISBN 978-950-20-2653-4.
[2] ↑ Werner, Goldschmidt (2002). Derecho Internacional Privado, el derecho de la tolerancia. Buenos Aires: Depalma. p. 71. ISBN 950-14-1854-5.
[3] ↑ Scotti, Luciana (2017). «V». Manual de Derecho Internacional Privado. Argentina: LALEY. p. 155. ISBN 978-987-03-3197-1.
[4] ↑ Scotti, Luciana. «vi». Manual de Derecho Internacional Privado. LALEY. p. 181. ISBN 2018 |isbn= incorrecto (ayuda).
who have legitimate children and constitutes a rule of public order, which would be violated if an adoptive heir according to foreign law were admitted to the succession of the adopter opened in France in concurrence with the legitimate children.
Consequently, the main cause is succession and the incidental cause is adoption.
Private International Law II of 1979 establishes that preliminary issues do not necessarily have to be resolved according to the law that regulates the main issue.
Maximum reference theory
foreign law, that is, it applies to foreign private international law, as well as indirect import and export regulations and applicable law.
The following may happen: in the case of acceptance the rules of foreign private international law declare its internal law applicable, but in the second degree resubmission the
norms of foreign private international law do not declare domestic law applicable, but rather declare the law of another State applicable; For example, the judge of State A declares applicable or refers the case to State B, it does not apply its internal law and refers it to State C, which accepts the invitation and applies its law
internal.
It may also happen that none of the states declared applicable want to apply their internal law, in this case this refusal sends it back to the first State.
(forwarding first).
FOR RESHIPMENT TO OCCUR, TWO ORDINATIONS MUST EXIST
LEGAL AUTHORITIES THAT HAVE RULES OF PRIVATE INTERNATIONAL LAW; THAT THE CONNECTION POINTS ARE DIFFERENT AND THAT THEORY OF MAXIMUM REFERENCE IS FOUND.
who have legitimate children and constitutes a rule of public order, which would be violated if an adoptive heir according to foreign law were admitted to the succession of the adopter opened in France in concurrence with the legitimate children.
Consequently, the main cause is succession and the incidental cause is adoption.
Private International Law II of 1979 establishes that preliminary issues do not necessarily have to be resolved according to the law that regulates the main issue.
Maximum reference theory
foreign law, that is, it applies to foreign private international law, as well as indirect import and export regulations and applicable law.
The following may happen: in the case of acceptance the rules of foreign private international law declare its internal law applicable, but in the second degree resubmission the
norms of foreign private international law do not declare domestic law applicable, but rather declare the law of another State applicable; For example, the judge of State A declares applicable or refers the case to State B, it does not apply its internal law and refers it to State C, which accepts the invitation and applies its law
internal.
It may also happen that none of the states declared applicable want to apply their internal law, in this case this refusal sends it back to the first State.
(forwarding first).
FOR RESHIPMENT TO OCCUR, TWO ORDINATIONS MUST EXIST
LEGAL AUTHORITIES THAT HAVE RULES OF PRIVATE INTERNATIONAL LAW; THAT THE CONNECTION POINTS ARE DIFFERENT AND THAT THEORY OF MAXIMUM REFERENCE IS FOUND.