What is unification of law

Private International Law and Its Unification

In this blog post, Pramit Bhattacharya, Damodaram Sanjivayya National Law University writes about the concept of Private International Law and its unification. The post discusses the basis of having Private International Laws and in what ways the laws can be unified. The post also looks into the benefits and challenges regarding the process of unification.

The Conflict of Laws, or as it is more commonly known by the name of Private International Law is that branch of law which deals with those case where some foreign element is present; to be more precise the geographical factor is present. This situation may arise when the parties are residents of a foreign country and any dispute arises between them or there a dispute between people belonging to two different countries. And in all the cases where any foreign element is present, the Court applies the principle of “conflict of laws.’

In the present era, almost all countries have a system in place to deal with conflict of laws. This system is required for the increased movement of people from one territory to the other due to various reasons. The Courts in such cases voluntarily apply the principle of conflict of laws. While there are some laws which are accepted in most of the countries, some rules might differ depending on the place.

Private International Law determines that what law will be applied when there is a dispute between the parties relating to their private rights and obligation, but where some foreign element is also present, and what Court shall have the jurisdiction to try the dispute. According to this, Private International Laws may possess the following principles:[1]

In simple words, Private International Laws can be defined as a means to find out the way to solve a dispute when any foreign element is involved.

Basis of Private International Law

The basic principle behind applying Private International Law is to ensure that justice is done. It will be a grave injustice to the parties if cases are decided using local laws of the land, when a foreign element is involved, for instance, a Spanish element is decided by Indian Court using the rule of law which is prevalent in India just because it is an Indian Court. The final decision could have been different if a Spanish Court had decided the matter.[2]

The function of conflict of laws is to indicate the area over which it has jurisdiction. According to Savigny, Private International Law is a diversity of positive laws (with each territory having its laws) and thus it is essential to mark each in a separate outline to fix the area of authority. According to him, it was necessary to fix the limit of different positive laws against one another.[3] In respect to conflict of laws, it has also been suggested that it is a mutual conduct, where each state adopts the rule of each other to meet the ends of justice.[4]

The Indian Legislature also supports this suggestion. This is evident from reading Section 11 of the Foreign Marriages Act, 1969. According to the provision, Indian Consular Officers and Diplomats are allowed to solemnize the marriage of a couple, when one of them is an Indian citizen who is in a foreign place. But such a marriage cannot be solemnized if it is in contravention to the laws of the country where it is to be solemnized. The prohibition clause is there because if it is done so, it’ll be contrary to international law, and the mutual agreements which the nations have between them.[5]

General and Traditional Rules of Private International Laws

The general rule of Private International Law can be explained by giving the following example. Suppose X and Y come into a contract of sale of clothes from India. X is an Indian and Y is an Italian. Now a dispute arises between X and Y, and the case comes before the Court. The Court will have to decide which country’s law should be followed. In such cases, general rules of Private International Law are followed.

Hereunder, given are some Traditional Rules of Private International Law:

Important Issues Which Arise on Application of Private International Law

Whenever any foreign element is present in a case and Private International Law is applied to solve the dispute two main issues arise. First, is the determination of the Procedural Law and the second issue is to determine the Substantive Law.

Procedural Laws are those laws which govern the procedure of the court in civil, criminal and administrative matters. The Procedural Law ensures that the due process of the law is being followed.

Substantive law is that law which deals with the legal relationship between different individuals of the state, or between individuals of the state and the state itself. Hence, it can be said that Substantive laws explain the rights and duties of the people, and Procedural Law lays down the procedure to enforce such rights and duties (or liabilities and obligations). The entire case depends on how these laws are being applied.

The judicial pronouncement in the case of Re Annesley[6] can be cited here. The facts of the cases are that a British National domiciled in Italy. This British National had some moveable property in England. He died without a will and a question arose regarding the succession of the property. When the case came to the Court, the Court had to decide the matter of Procedural and Substantive Law to be followed.

With respect to Procedural Law, the domestic law is followed. So the issue remains limited to the question of Substantive Law, and choosing of Substantive Law remains paramount to achieve the ends of justice.

Justice Cardozo, the distinguished American Judge, has opined that this conflict of laws is one of the most baffling subjects of legal science. He also observed that when confronted with the application of Private International Law, many Judges find themselves lost.[7]

Unification of Private International Law

From a long time, it was believed that law of different countries could unite. According to Ernst Zitelmann, since legal formalities are more or less common all across the globe, and policy goals are share, laws of every country end up converging at the end.[8]

As stated earlier, the need for Private International Laws arises because each country has its different international law. If all the countries lay down uniform internal laws, then there would be no need of Private International Laws. But, it must be noted that the difference is not only regarding the internal laws but also differences are there in Private International Laws which each nation chooses to follow, on account of which conflicts between law arises. Due to this, the unification of law is vital.

There are two modes of unification of laws, namely:

Unification of Internal Laws: The first attempt to unify the internal laws of different nations was attempted through the Bern Convention in 1886 under which an International Union was formed to protect the interests of authors and writers over their literary works. Then after World War I, the Institute for Unification of Private Laws was established. The Institute achieved some success in the unification of civil laws of different States. The Warsaw Convention of 1929 (later amended by the Hague Convention of 1955) is a landmark in this regard as it laid down uniform laws which regulated the carriage of goods and person by air. The unification is not very poor, but looking at the bigger picture, it is very insignificant. An attempt was also made to unify the laws of the Soviet Union and the People’s Democracies of Eastern Europe.

But this method of unification has not been successful in the long run because every nation differs from the other with respect to culture, religion, the upbringing of the people, public policy, etc.

Unification of Rules of Private International Law: Due to basic difference in the legal system of every country, it is impossible to unify all the laws. Therefore, another method to avoid conflicts in the unification of Rules of Private International Law has to be emphasized upon. Pre-1951, an attempt was made to unify all those European Countries which followed the Civil Law. But nothing could be done towards the unification of laws of the Commonwealth Countries and the United States because there was a huge fundamental difference in the laws of these countries. But after 1951, some intense attempt was made to unify the rules of Private International Laws. In the year 1951, a permanent bureau of Hague Convention (HccH) was established to look after the issue. The main function of the HccH is to work towards broader Unification of Private International Law.

At present, the Institute for Unification of Private Law (UNIDROIT) looks up after the matter. It is an intergovernmental body which is established in Rome, and its function is to coordinate and harmonize private (especially) commercial laws between different nations.[9]

Benefits of Unification

If the rules of Private International Laws are unified, it’ll reduce the number of conflicts which arise when a foreign element is involved. Unification of laws will also make proceedings less time-consuming. The proceedings will move ahead in an efficient manner as the Courts would know which law to apply and would not have to spend time on that question. Also, in this era of globalization, unification of Rules can bring the entire world on the same platform.

Challenges to Unification

Internal laws of each country are different as per the requirement of the country. But now, the trend which can be observed is that even Private International Laws are different and not uniform in all countries. The first challenge in the unification of Rules is to make different nations agree to the same set of Rules. Secondly, every nation would want the rules to be as per their requirements. In such a case, requirements of some countries may be neglected even if uniform rules are agreed to. Another major challenge will be to enforce the Rules in all the countries of the world.

Footnotes:

[2]Technip S A vs. SMS Holding (P) Ltd. (2005) 5 SCC 465

[3]Savigny, Private Int. Law cited in Cheshire, North & Fawcett, Private Int. Law, Fourteenth ed

[4]Buck vs. Attorney-General [1965] Ch 745, 770; [1965] 1 All ER 883 (CA)

[5] The provisions avoids a situation which might be valid in India, but invalid in the country where it is being performed. This mutual understanding is the basis of Private International Law.

[6] Re Annesley, 1926

[7]Extract quoted by Morris, Conflict of laws, sixth ed., p 7.

[8]Ernst Zitelmann, Die, MoglichkeiteinesWeltrechts: UnveranderterAbdruck der 1888 erschienenenAbhandlungmiteinemNachwort (1916)

HARMONIZATION AND UNIFICATION OF INTERNATIONAL COMMERCIAL LAW, PART 1

Considering the large amount of instruments created artificially or spontaneously aiming to harmonize and unify international commercial law, it is important to analyze which are the main problems arising from the present reality in order to deal with such issues and try to surpass their difficulties.

This paper highlights the main problems applicators in general (judges, arbitrators, etc), States, and International Organizations, including UNCITRAL, face when dealing with harmonization and unification of international commercial law. Consequently, the intention is that such problems are taken into account in order to improve the effectiveness of harmonizing/unifying instruments and mechanisms. [1]

Therefore, the subject issue of this paper concerns which problems emerge when harmonization and unification of international commercial law are sought; i.e. which difficulties should be considered when looking for efficient results on granting better-shaped-to-reality international commercial instruments, [2] since their creation until their application.

In this sense, problems can be divided into two categories: (i) one including problems accruing from the relationship between instruments and States; and (ii) other including problems accruing from the relation among instruments themselves. In the first category are included problems related to the drafting (and creation) of harmonizing/unifying instruments; their use (choice); their application by different applicators (judges, arbitrators); and situations that jeopardize their complete application, such as public policy issues and mandatory rules. In the second category are placed problems related to creation and drafting of instruments and their application.

However, before entering the subject itself, it is important to clarify some aspects concerning the terminology used, especially the terms unification and harmonization. [3] Unification takes place when (i) there is only one instrument to be applied; and (ii) the result of such application worldwide is similar enough that it leads to the avoidance of practical differences that may result in a specific choice of the applicator. [4] – [5]

Harmonization, in turn, has two meanings. The first one is used when an instrument works as model or source of inspiration to the creation or the application of another instrument in order to bring them closer and facilitate commercial relations. The second concerns harmonization seen as the harmonic coexistence of instruments. [6]

Therefore, any instrument can be used as a means of harmonization or unification, regardless the aim it was created for. Generally speaking, any source of international commercial law can be seen as a kind of harmonizing/unifying instrument. [7]

Considering the definition brought above, problems on harmonization/unification of international commercial law are any factors jeopardizing the fulfillment of at least one of the requirements of harmonization/unification as defined above.

Once unification requires (i) the existence of only one instrument (ii) applied similarly enough that the result of such application avoids practical differences, one may conclude that unification is not achieved if, regarding requirement (i), there is no harmonizing/unifying instrument to be applied or available instruments are not applied, or, regarding requirement (ii), the same instrument is applied differently, being this a reason for choosing one applicator or another.

Further, once harmonization requires the use of an instrument as model or source of inspiration in order to get them closer and facilitate commercial relations, problems arise when no instrument is used as model or source of inspiration or if such use does not result in the facilitation of commercial relations. The same is true when instruments do not coexist harmonically.

In the following topics, every problem mentioned above will be dealt with individually. [8] However, before moving on to such analysis, it is important to highlight that the existence of harmonizing/unifying instruments does not mean diversity itself is a problem. The existence of multiple instruments available means applicators can choose the one that best fits their relation. In addition, propagation of such multiplicity of instruments will, at last instance, show which are better suited for each relation and which should not be kept. In other words, practice will show which critics to which instruments are correct and which are not. The most important is that the content of one instrument does not harm the existence of a multiplicity of possibilities and their application. The application of each instrument must be made consistently worldwide no matter the applicator chosen. [9] Further, it is important to bear in mind that harmonization and unification should be sought as a means for a further objective. [10]

The first problem has its origins in the existence of different juridical systems. [11] Such differences usually lead to long discussions during the drafting of harmonizing/unifying instruments. Therefore, the careful choice of their characteristics can help facilitating their drafting process and the fulfillment of goals. [12] During such process, every state-representative tend to defend their States’ own interests, which may result in incompatibilities. When it comes to the drafting of soft law instruments, conversely, text incompatibilities are not that relevant because their binding force is given by the parties or States that can adapt the content if they want. Another difference regards drafters, who usually are not state representatives, but experts on the subject matter. [13]

The second problem relates to the decision of a state to become bound by an instrument or not. When it comes to bringing international and transnational instruments to state legal order, it is the state itself the one to take decisions, such as: to become part to treaties, to use model law texts when drafting domestic legislation, to allow arbitration procedures, etc. [14] Such decisions take into account multiple aspects that may impair the effectiveness of harmonizing/unifying instruments.

Some of them are: the existence of other priorities; [15] the reduced number of State-parties; [16] the reduced personnel available to represent the country in conferences or meetings where the drafting is made [17] ; apprehension on the results of the application of instruments; [18] avoidance of costs (which arise from the training to apply a new instrument); [19] lack of foreseeability regarding results of application; [20] preference for domestic law; [21] and incompatibilities with domestic law (mandatory rules and public policy issues). [22]

Reservations [23] and differences resulting from some states being bound to a treaty and others not also lead to discrepancies in their application as the content made bound on each state changes. [24] However, if reservations were not allowed, it is likely treaty acceptance would be reduced.

Also, the way each State faces international and transnational instruments can be considered a problem, especially regarding the hierarchical level international law instruments are placed in each legal order. [25] When domestic law prevails over international instruments, international commercial relations may be given a legal treatment that is not consistent with best practices.

In order to encourage states to become bound to a certain instrument, a provision containing an authorization to opt-out the entire text or to modulate its content may be considered a good idea. An example of such kind of provision is article 6 CISG. [26] The counterpart of such flexibility however is the existence of multiple possibilities of variation, harming the achievement of wider unification. [27]

Applicators may also avail themselves of provisions such as article 6 CISG when taking into account the limited scope of application of harmonizing/unifying instruments. In order to avoid depegage, national law may be preferred for it reaching a wider scope of application, so the same legal order is applied to all subjects dealt within the contract, which reduces the use of harmonizing/unifying

It leads to the conclusion that harmonizing/unifying instruments, although having a limited scope of application, should be harmonized with the content of other harmonizing/unifying instruments, in order to encourage their choice. In this sense, the wider the scope of application of harmonizing/unifying instruments, the more parties feel encouraged to allow their application to their commercial relations.

Further, when bringing harmonizing/unifying instruments to the domestic legal order, their translation is an issue to care. The use of different translation methods may lead to text distortions and, consequently, to misunderstandings on their application. [29] Even if drafting techniques are different, efforts should be applied by domestic law drafters so harmonization is kept. [30]

Another delicate issue regards changes made to the original text due to update reasons. [31] The consent of all States may be required once more and, usually, enormous difficulty is faced to reach consensus again. Therefore, problems arising from outdated provisions should be resolved through interpretation techniques, either considering the current practice of international commercial law, or making use of most recent instruments containing provisions on the specific subject. Provisions on filling gaps may be used for this purpose too. [32] In this sense, the more harmonizing/unifying instruments are known around the world, the easier it will be to find a solution to update their text without having to change the original text. Formulating agencies play a very important role in disseminating such knowledge. [33]

In addition, undue influence of domestic law on the application of international instruments must be avoided because such influence may harm the attainment of the aim pursued. [34]

The application of harmonizing/unifying instruments is a fundamental step to reach harmonization and unification. Therefore, every aspect in their reaching will be analyzed separately.

As it was explained before, unification is reached when there is one instrument being applied and its application is similar enough that it avoids practical differences harming such application. Reaching harmonization, instead, means one instrument is used as a model or source of inspiration to others either through interpretation or drafting in order to facilitate commercial relations, or their harmonic coexistence.

Bearing these definitions in mind, one concludes it is the way the instrument is applied that determines whether it was used to harmonize or unify international commercial law.

Therefore, when analyzing the application of harmonizing/unifying instruments, the following aspects will be taken into consideration: (1) who is applying the instrument; (2) which instruments the parties are allowed to choose and which instruments the applicator is allowed to apply; (3) the relation of such instruments with others (especially the ones of domestic legal order, mandatory rules and public policy issues); (4) stricto sensu application of instruments.

As aspect (1) influences aspects (2), (3) and (4), our analysis will focus on aspects (2), (3) and (4), considering the applicator being a judge or an arbitrator when necessary.

Which instruments the parties are allowed to choose and which instruments the applicator is allowed to apply

Generally speaking, conflict of laws rules are strictly related to which instruments the parties are allowed to choose and to which instruments the applicator is allowed to apply.

In this sense, harmonizing/unifying instruments may be related to conflict of laws rules in three different forms: being the subject matter of such instruments, being the rule determining the application of harmonizing/unifying instruments on material rules, and filling gaps left by harmonizing/unifying instruments. [35]

As said above, some harmonizing/unifying instruments have as subject matter conflict of law rules. However, when it comes to international commercial law, material rules instruments are usually given preference, but it does not mean conflict of law instruments are not welcome. [36] In fact, the purpose conflict of law rules are built for has changed a little. [37]

Further, conflict of laws rules can be used to regulate the application of harmonizing/unifying instruments. Such rules can be seen from two different perspectives: (1) rules contained in the instrument that deals with its own application and (2) national conflict of law rules allowing or not the application of harmonizing/unifying instruments.

From the first perspective, conflict of law rules could fit for self-applicable instruments when states are bound to them, [38] but should not be used as the first option rule determining their own application because it could lead to distortions on the application of the instrument. Anyway, such instruments are ready to be applied and will be applied if application criteria are met. [39]

Instruments that are not self-applicable or although self-applicable are not being used as such (in case the state is not bound to them) depend on party autonomy to become applicable. Non-binding instruments, in turn, usually contain parameters that indicate situations to which they could apply, but still depend on party autonomy to be applied.

When it comes to the application of non-binding instruments, also said non-self-applicable, conflict of law rules play an important role [ 40] and dispute settlement provisions too. The large majority of states allow only the application of laws (and not rules of law) through conflict of law rules. [41] Therefore, the main problem impairing unification/harmonization concerns the recognition of legislative competence of other authorities by states. [42]

The dispute settlement method chosen plays also an important role. When parties choose arbitration, their scope of choice regarding the applicable law is wider. The application of soft law instruments can be authorized as it depends on party autonomy and, therefore, parties’ choices. [43] If the controversy is submitted to domestic courts instead, state rules will set forth what is allowed or not. [44] [45] – 46 In sum, the main concerns are (i) whether parties should be authorized to widely and freely choose (regardless the dispute settlement method chosen) and (ii) whether domestic judges should be authorized to widely and freely apply harmonizing/unifying instruments which the state is not bound to.

When it comes to filling gaps resulting from the incompleteness of harmonizing/unifying instruments, three perspectives are considered. One is wider and the other two are stricter. The wider regards the subject-matter of instruments. Differently from domestic law, harmonizing/unifying instruments concern a specific subject matter. [46] Therefore, commercial relations involving various subjects must be given coherent treatment considering every aspect concerned. Harmonizing/unifying instruments individually may not be considered sufficient. In this case, a possible solution is using multiple harmonizing/unifying instruments (when possible) or conflict of laws instruments. [47]

The two stricter perspectives are: (1) issues explicitly left out of the scope of the instrument and (2) issues in the scope of the instrument but not explicitly dealt within its text. Therefore, if some subjects cannot be dealt with within a unifying/harmonizing instrument, although related to it, they may be subject to rules that present at least some coherence to it. A text containing conflict of law rules that indicate the best solution is an option. Issues contained in the subject matter of the instrument, but not receiving specific treatment, should be subject to a provision on filling gaps regarding this kind of situation.

Therefore, the main problem concerning the filling of gaps is granting coherence to the treatment of all issues concerned. Harmonic solutions are the aim to be sought and can be reached if harmonizing/unifying instruments present coherent contents and their use is allowed by the state.

The relation between harmonizing/unifying instruments and mandatory rules and public policy issues is considered a problem because the last two limit party autonomy and act preventing the complete application of instruments in order to grant protection to national legal orders. [48]

Theoretically, when it comes to self-applicable instruments given binding force by the state, mandatory rules and public policy issues do not show if the instrument is applied for such a reason. This is so, because such issues should have been raised when the instrument was incorporated to the domestic legal order. Further, party autonomy is not used but to exclude their application. Therefore, conflicts with mandatory rules and public policy issues arise when a non-self-applicable instrument is applied. [49]

Thus, excluding cases related to the paragraph above, four issues concerning the conflict between mandatory rules and/or public policy issues and harmonizing/unifying instruments are the most relevant ones and will be considered here: (1) harmonizing/unifying instruments (soft law) applied as applicable law; (2) foreign law applied in a state whose national law is based on the same instrument as the foreign law; (3) provisions on mandatory rules and public policy issues contained in harmonizing/unifying instruments; and (4) public policy issues faced during proceedings for recognition and enforcement of sentences and awards.

arbitrators should deliver an enforceable award, mandatory rules and public policy issues are to be taken into account on a case by case basis in order to avoid problems of enforcement. [51]

[1] The word Mechanism is used for the purpose of this paper as the way all available instruments can be used in order to harmonize or unify international commercial law.

[2] The word Instrument is used for the purpose of this paper as rules containing any kind of command or guideline that can be used in order to harmonize or unify international commercial law. It means that the instrument may be used for a purpose different to the one it was created for.

[3] It is possible to notice some terminological differences concerning texts written in different languages. Especially in French and in Portuguese three words are used: harmonizagao/harmonization, unificagao/unification and uniformizagao/uniformization. In English, the large majority of authors, including International Organizations, use two words: harmonization and unification. In this sense, unificagao/unification and uniformizagao/uniformization are treated as unification in this paper, as criteria used to treat them separately do not prevent their union. Also, such choice avoids misunderstandings regarding texts written in English.

[4] Such definition was based on the following texts: ANDERSEN, 2007; BOELE-WOELKI, 2010; KAMDEM, 2009; DOLINGER,

2008; OLIVEIRA, 2008; UNCITRAL, 1970, p. 13; MATTEUCCI, 1957; DAVID, 1968; BONELL, 1990; BOGGIANO, 2000; FARIA, 2009; DE LY, 1997; ANDERSEN, 2007, UNCITRAL Website

(accessed on 08 January 2017); Unidroit Institute Website (accessed on 08 January 2017). Hague Conference Website (accessed on 08 January 2017).

[5] Although some authors use the expression forum shopping, it is not used here because, considering such concept and some divergences on its definition, some situations in which harmonizing/unifying instruments could be used would be left out.

[6] Such definition was based on the following texts: KAMDEM, 2009; BOELE-WOELKI, 2010; OLIVEIRA, 2008; LEBOULANGER, 2009; DAVID, 1968; UNCITRAL Website (accessed on

[7] January 2017); Unidroit Institute Website (accessed on 08 January 2017); Hague Conference Website (accessed on 08 January 2017).

8 Based on: BASSO, 2011, p. 24-114; GALGANO & MARRELLA, 2011, p. 193-304; and BORTOLLOTTI, 2009, pp. 9-122.

[8] Critics to the creation and to the application of harmonizing/unifying instruments may also be considered a challenge as they could result in the non-application of instruments. Most common critics can be found on STEPHAN, 1999; GOPALAN, 2003; GOODE, 2003, item I; GOODE, 2005, p. 556; ROSETT, 1992, p. 688; DE LY, 1997, p. 529; SACCO, 2001, pp. 174-175. If on the one hand the above mentioned authors present critics, on the other, they also present suggestions to reduce them.

[9] SACCO, 1990, p. 2 e 15; SACCO, 2001, p. 175-180; LOSANO, 2007, p. 18; MISTELIS, 2000, p. 1068; ANDERSEN, 2007, p. 48­49; KRONKE, 2009, p. 708; BOISSESON, 1999, p. 598.

[10] BOELE-WOELKI, 2010, pp. 336-337.

[11] MATTEUCCI, 1957, p. 415.

[12] MATTEUCCI, 1957, p. 420

[13] Soft Law is understood here as any kind of instrument that were not given binding force by the state. They depend on party autonomy to become binding. ABBUD, 2014, p. 13-14; For further issues on the subject: BONELL, 2005, p. 229; kAuFMANN-KOHLER, 2010, p. 2; DI ROBILANT, 2006, p. 500; ANDERSEN, 2007, p. 16; GABRIEL, 2009, p. 655; BOYLE,

1999, p. 901-902; GERSEN & POSNER, 2008, p. 6; KAUFMANN-KOHLER, 2010, p. 2; FLUCKIGER, Alexandre. Why Do We Obey Soft Law?. in NAHRATH, Stephane; VARONE, Frederic (eds), Rediscovering Public Law and Public Administration in Comparative Policy Analysis: A Tribute to Peter Knoepfel, Lausanne: Presses polytechniques et universitaires romandes, 2009, p. 45­62 apud KAUFMANN-KOHLER, 2010, p. 2- 3; BASSO, 2011, p. 94-96; ABI-SAAB, 1993, p. 59-60.

[14] BOELE-WOELKI, 2010, p. 364.

[15] SONO, 2007, p. 2.

[16] SONO, 2007, p. 2; FARIA, 2009, p. 26

[17] BASSO, 2011, p. 49.

[18] SONO, 2007, p. 2.

[19] SONO, 2007, p. 2; FARIA, 2005, pp. 9-10.

[20] SONO, 2007, p. 2.

[21] FARIA, 2005, p. 9

[23] BONELL, 1990, p. 866-867.

[24] FERRARI, 2002, pp. 703 e 704.

[25] BASSO, 2011, p. 50, footnote 77; CASSESE, 2013, p. 299-306.

[26] FERRARI, 2002, p. 700

[27] CISG-AC Opinion No. 16.

[28] KOEHLER & GUO, 2008, pp. 55-56.

[29] BONELL, 1990, p. 867.

[30] FARIA, 2005, p. 30-31.

[31] FARIA, 2005, p. 13.

[33] FARIA, 2009, p. 27; Reaching the same conclusion: DAWWAS & SHANDI, 2011; p. 841; BOSCOLO, 2016, passim;

SCHLECHTRIEM, 2005, p. 29.; SONO, 2007, p. 6.

[34] MATTEUCCI, 1957, p. 423.

[35] JAYME, 1995, p. 57.

[36] JAYME, 1995, p. 252.

[37] DE LY, 1997, p. 534-535; BADAN, 2012, p. 80 For example, recently the Hague Principles on Choice of Law in International Commercial Contracts were created.

[38] BADAN, 2012, 43-44.

[39] BOELE-WOELKI, 2010, P. 396.

[40] BOELE-WOELKI, 2010, p. 396.

[41] On the definition of law, see: MICHAELS, 2009, pp. 14-16; GRIGERA-NAON, 2001, p. 25-26.

[42] JAYME, 1995, p. 262-263; BERGER, 1999, p. 30-31. See also the official commentary to article 3 of the Principles on Choice of Law in Commercial Contracts (HPCL). Such instrument allows the parties to choose rules of law as long as they are “generally accepted” and are considered a “neutral and balanced set of the rules”. This is so to try to keep parties’ power balanced, otherwise one party could use its bargain power and impose its set of rules to the other. Available at accessed on 08 January 2017

[43] DE LY, 1997, pp. 538-539; BLACKABY, 2009, p. 226; BORN, 2009, p. 2154; BOELE-WOELKI, 2010, p. 396-430.

[44] BOELE-WOELKI, 2010, p. 400.

[45] Brazilian law is a very clear example of such difference.

[46] FERRARI, 2002, p. 698-699.

[47] MATTEUCCI, 1957, pp. 403-405; DE LY, 1997, p. 534.

[48] BERAUDO, 2005, p. 104-105; BOGGIANO, 2000, p. XI.

[49] Issues arise regarding the underlying subject matter to which the instrument is applied, not the instrument itself. The compatibility of the instrument with the domestic legal order was analyzed when the state became bound to it.

[50] DE LY, 1997, p. 537.

[51] PIERRE MAYER, 1998, p. 6. Some authors consider arbitrators must always take into account mandatory rules existing in every state where the parties might seek recognition and enforcement of the award because arbitrators have a duty to deliver enforceable awards. On the one hand: KLEINHEISTERKAMP in VOGERNAUER & KLEINHEISTERKAMP, 2009, pp. 133-134; BONELL, 2005, p. 248-249. On the other: MAYER, Pierre, La regle morale dans l’arbitrage international, in Etudes offertes a Pierre Bellet 379, IT 26-27 (1991), apud FOUCHARD & GAILLARD & GOLDMAN, 1999, pp. 881-882.

[52] MATTEUCCI, 1957, p. 420.

[54] BASSO, 2011, p. 292. In the same sense: KLEINHEISTERKAMP in VOGERNAUER & KLEINHEISTERKAMP, 2009, pp. 133­134.

[55] BASSO, 2011, pp. 303-304.

[57] GALGANO & MARRELLA, 2011, p. 914-934.

[58] PIERRE MAYER, 1998, p. 5; For example: UN Global Compact. Disponlvel em accessed on 08 January 2017.

[59] MAYER & SHEPPARD, 2003, Recommendation 1.c.

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Unification of Private International Law

By Nikhil Jain, ITMU Law School

Editor’s Note: Rules of private international law are applied in matters where some foreign element is present. In such cases, the first question that arises before the courts is what would be the applicable law and thus comes the need of private international law.

Need of private international law arises because the internal laws of different countries differ from each other. If the internal laws of the countries of the world lay down uniform rules, then probably there will not be any need for private international law. But then, difference is not only in the internal laws of the different countries, but also in the private international laws of different countries, on account of which sometimes conflicting decisions are pronounced by the courts of different countries on the same matter. Thus, need for Unification of Private International law Rules arise.

However, despite the numerous benefits associated with uniform rules of private international law, such an approach towards unification has had few takers. The different systems of law prevalent in the countries make efforts towards unification a practical impossibility.

What Is Private International Law?

“Private International Law” or “The Conflict of Laws” is that branch of law which deals with the cases in which some relevant fact has a geographical connection with a foreign country or if there is some foreign element involved in the case. There may exist a foreign element because the parties may be citizens of a foreign country, or domiciled in a foreign country, and the dispute may relate to their status or their property situated in that country; or the dispute may relate to a contract between parties living in 2 different countries; or a suit may relate to a tort committed. In all such cases, there exists a foreign element. And in all such cases where a foreign element is involved, the principles of conflict of laws are applied. These principles are applied by the courts as a part of applicable rules of domestic law.

Almost every country, in the modern era, has not only its own system of municipal law but also its own system of conflict of law. And there is need for rules of conflict of laws because the world is divided into several territorial units with different legal systems containing different rules on subjects such as contracts, torts, succession to property etc., and people move from unit to unit or enter into personal or commercial relations in such units or with people in such units. When this happens, courts voluntarily apply the conflict of law rules of their country to resolve the problem. While certain rules of conflict of laws are accepted in most countries, other rules differ. [1]

Thus, Private International Law may be defined as the branch of laws of a country which determines:

(i) What laws, whether domestic or foreign, the courts shall apply to disputes between individuals in their private legal relations but involving a foreign element, and

(ii) What courts shall have jurisdiction or competence to decide those disputes.

According to this definition, following may be the principles of Private Int. Law:

(i) It is a branch of national law,

(ii) It is administered by the courts of nation, or the land,

(iii) It is generally administered over the individuals, whether citizens or individuals, and

(iv) There is always a foreign element in all these cases

Thus, Private International Law is the means to find out the applicable law in case of a dispute that involves a foreign element.

Basis of Private International Law

The basis or foundation of the rules of conflict of laws is principally the need to do justice. It would be unjust if a dispute with, say, a French element is decided by an Indian court applying only the rules of law in force in India merely because it is an Indian court which is deciding it.. The result would have been different had a French court decided it applying the rules of French law. [2]

In the matter of Stephens vs. Falchi [3], it was correctly held by the court that “Whether or not the conditions are such as to require the application of the rules of law of another country is a question that must be decided by court under their own law”

The function of conflict of laws is to indicate the area over which the rule extends – its deals with the application of laws in space. To quote a distinguished writer, “it is the diversity of positive laws [in different territorial units] which makes it necessary to mark off for each in sharp outline, to fix the area of its authority, to fix the limits of different positive laws in respect to one another.” [4]

It has also been suggested that the doctrine of comity of nations is the basis for applying the principles of conflict of laws. Comity means the accepted rules of mutual conduct between states, which each state adopts in relation to other states and expects other states to adopt in relation to it. [5]

An instance of the Indian Legislature recognizing the rule of comity occurs in Section 11 of the Foreign Marriages Act, 1969. The Act permits Indian diplomatic & consular officers to perform the marriages of persons, one of whom is a citizen of India, abroad, but provides that no such marriage can be performed if such a marriage is prohibited in the country where it is to be performed. The Joint Committee of Parliament also gave explanation as to why this rule was enacted, “it was done because permitting the performance of marriage prohibited in the country where it is performed would have been contrary to international law or the comity of nations, and parliament desired that a marriage performed under the Act have a high degree of international validity.” [6]

General Rules of Private International Law

Private International Law exists to find out what will be the applicable law in the dispute involving a foreign element.

Illustration: There are 2 parties in a contract of sale of wheat, one party is Indian and the other is German. They both came in contract of sale of wheat from India. Now if any dispute arises between the parties, and a case comes before a Court then the court is faced with a dilemma as to what should be the applicable law, whether the laws of India or Germany.

Here, India is a part of Commonwealth Countries, and Germany, on the other hand, is a member state of the European Union and follows Civil Law.

India follows traditional Private International Law rules and Germany has Private International Laws which are unified among the member states of European Union.

Traditional rules of Private International Law

Unified Private International Law of Member States of The European Union

European Union for all its member states has unified private international law rules. Some such conventions unifying the rules among all member states are:

Issues That Arise In Private International Law

Wherever a foreign element is involved and attracts the rules of private international law, the first issue is to determine the procedural and substantive law.

Procedural law comprises the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law during the proceedings. These rules ensure fair practice and consistency in the “due process.”

Substantive law is a statutory law that deals with the legal relationship between people, or the people and the state.

Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced. The differences between the two need to be studied in greater detail, for better understanding.

The application of such law may change the face of judgment in a case. For instance, in the matter of Re Annesley [7], in this case there was a British National domiciled in Italy and had some movable property in England. He died without any will. Thus, the question of conflict, in this case, was of succession of property. When the case came before the court of law, it was found that as per English law lex domicli should be applied but as per Italian law the rule to be applied was lex nationalis. The first question which comes before the court is procedural law. The Procedural Law is the domestic law of the land where the case is filed. Thus, the dilemma is limited to the Substantive Law. And, choosing of such a law is of paramount importance for delivering justice.

A distinguished American Judge, Cardozo J, has described conflict of laws as “one of the most baffling subjects of legal science and observed that, the average judge when confronted with a problem in the conflict of laws, feels almost completely lost, and like a drowning person, will grasp at a straw.” [8]

These rules must involve one or more of these questions:

Each and every court faces this dilemma when a case comes before it involving a foreign element. Then what should be done to avoid such a dilemma and serve justice at any cost?

Unification of Private International Law

Dictionary meaning of unification is “being united or made into a whole.” [9]

A hundred years ago, many lawyers believed that the law of individual nations could, and would, eventually become unified. In a well know speech made in 1888, Ernst Zitelmann advanced a case for “global law” (Weltrecht). According to his argument, because the formalities of legal provisions are common everywhere and the policy goals are, or are going to be shared by every civilized nation, the law of every nation will in end converge. [10]

Now, it has been said earlier that the need for private international law arises because the internal laws of different countries differ from each other. If the internal laws of the countries of the world lay down uniform rules, probably there will not be any need for private international law. But then, difference is not only in the internal laws of different countries but also in the private international laws of countries, on account of which sometimes conflicting decisions are pronounced by the courts of different countries on the same matter. Thus, the need for the unification of rules of private international law arises.

There are two modes for unification of private international law:

Unification of the Internal Laws of the Countries of the World

The first step in the direction of the unification of internal laws was taken by the Bern Convention of 1886 under which an international union for the protection of rights of authors over their literary and artistic works was formed. [11]

After the First World War, an international institute for Unification of private laws was established at Rome. [12] The institute has achieved some success in the field of unification of civil laws of different countries of the world. The Warsaw Convention of 1929 which has been amended by the Hague Convention of 1955 is a landmark in this direction. This convention provides for uniform rules relating to carriage of goods and persons by air.

If looked at in the background of fundamental differences in the various systems of law in the world, this achievement is not very poor, though looked at in the overall perspective, it is quite insignificant.

There has also been an attempt at the unification of civil law between the Soviet Union and the People’s Democracies of Eastern Europe. These countries have also attempted to unify certain laws with the West European Countries. For instance, Convention on Economic Assistance. [13]

But this method of unifying laws is not successful due to reasons such as the kind of society of one nation differs from society of another nation. Public policy is also one such illustration, due to which unifying internal laws of all the nations of world in not practically possible.

Unification of Rules of Private International Law

On account of basic ideological differences among the countries of the world, it is not possible to achieve unification of all private laws. Therefore, another method of avoiding the situation where courts in different countries may arrive at different results on the same matter is the unification of the rules of Private International Law. Considering the importance of the unification of rules of Private International Law, several serious international efforts have been made in this direction, some with success.

Before 1951, the main effort was directed at the unification of rules of private international law of European Continental countries, since most of them follow civil law systems. On the other hand, nothing could be done towards the unification of rules of private international law of the commonwealth countries and the United States on the account of fundamental differences between the two systems of law. However, after 1951, some serious attempts have been made with some success at the unification of rules of private international law of all countries of the world. In 1951, a permanent bureau of Hague Conference was constituted to look after this issue. The purpose of the Hague Conference on Private International Law (HccH) is to work for the broad unification of the rules of private international law. HccH develops and supports international conventions in the domains of protection of children, family and property relations, legal cooperation and litigation, as well as commercial and finance law.

Today, the International Institute for Unification of Private Law (UNIDROIT) looks after this matter. It is an independent intergovernmental organization with its seat in Villa Aldobrandini in Rome. And its purpose is to study the needs and methods for modernizing, harmonizing and coordinating private, and in particular commercial law, as between states and group of states and to formulate uniform law instruments, principles, and rules to achieve those objectives. It was set up in 1926 as an auxiliary organ of the League of Nations. The Institute was re-established in 1940 on the basis of multilateral agreement, the UNIDROIT Statute. As of 2014, UNIDROIT has 63 state members from over 5 continents.

Benefits Derived From Unification

If such rules are unified then there would be no conflicting judgments on the matter involving foreign elements by different courts. Secondly, unification of laws will make the court proceedings less time consuming, as the courts will be aware of what laws are applicable in a matter, and would not have to spend time in deciding the applicable substantive law in the matter. Thirdly, as it is the era of globalization and people get involved in personal and commercial relationships often, therefore, if there is unification then there would be less conflict at the first place, and if it is still there, then it would be easy to settle the dispute quickly. Also, due to unification world can be brought up on same platform. If states have contradictory rules, and benefits of avoiding the contradiction are large enough then there will be an incentive for states to choose to unify their laws.

A simple example is the traffic rule providing which side of the road a car shall drive on. Neither the right side rule in continental Europe nor the left side rule in Japan and Britain has proven to be superior. However, the coexistence of both rules may be harmful to the facilitation of international traffic.

India and Private International Law

The rules of private international law resolve the issues concerning conflict of laws, which arise because of differences between the law of the country of nationality of a person and that in which that person may reside, or of which he may acquire nationality. These issues most frequently arise in relation to personal matters such as marriage and divorce, custody of children, abduction of children, adoption and succession. These rules are mainly based on court decisions. In case of India, difficulties also arise because while in India the applicable personal law relating to these matters is determined by the religion of the individuals concerned, most countries in which there is substantial presence of Indian nationals do not have personal laws based on religion and a unified civil code applies to all persons residing there.

Currently India is a member of The Hague Conference on Private International Law (member since 13/03/2008). And India has signed 3 Hague Conventions out of its 24 Conventions on Unification of Private International Law.

Hague Conventions signed by India are:

1) Abolishing the requirement of legalization for foreign public documents (signed 14.7.2005)

2) Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, 1965

3) Taking of Evidence Abroad in Civil or Commercial Matters, 1970.

Hague Conventions ratified by India are:

1) Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents

2) Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

3) Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters

4) Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption

Problems and Challenges in Unification of Private International Law Rules

Major problem is that, although internal laws of countries are different from each other as per their requirements. Now even the private international law rules are different and not similar in all the countries then the matter involving foreign elements is difficult to solve. The court of any nation will face the same dilemma of what laws would be applicable in a matter if there is involvement of foreign element. Also, many a times courts will give up conflicting judgment on same matter as it is up to the court to find appropriate applicable law and thus is discretion of court. Thus, unification is very necessary in serving justice.

Now, challenge in unification is, firstly, making the state agree of at least signing the unification conventions and then later making them rectify such conventions. Secondly, meeting the demands of states. As every state wants to architect the convention as per their own requirements. Thirdly, enforcing such unification rules in all the countries of the world and then monitoring the process and courts.

Conclusion

Rules of private international law are applied in the matter where some foreign element is present. In such a case the first question that arises before court of law is what would be the applicable law and thus comes the need of private international law.

Need of private international law arises because the internal laws of different countries differ from each other. If the internal laws of the countries of the world lay down uniform rules, than probably there will not be any need for private international law. But then, difference is not only in the internal laws of the different countries, but also in the private international laws of different countries, on account of which sometimes conflicting decisions are pronounced by the courts of different countries on the same matter. Thus, need for Unification of Private International law Rules arise.

Unification of Private International law Rules can be done through two modes:

1. Unification of the internal laws of the countries of the world, and

2. Unification of the rules of Private International law.

Now, unification of internal laws of all countries is not practically possible as the municipal laws of every nation are made as per the need and requirements and circumstances of their society. And thus, municipal or internal laws differ from country to country.

But if rules for private international law are unified then it would solve the dilemma of deciding the applicable laws in a matter involving foreign element. As private international law rules are applied as the domestic rules of a country.

With the help of such unification duration of court proceedings could be reduced and uniformity can be brought. With the help of unification all the countries could be bought at same platform in this era of globalization.

The basic concept of unification is that the ultimate goal of all the courts of all countries of world is similar that is to deliver justice. Thus, with the help of unification of rules of private international law justice could be served at a rapid rate and conflicting judgments on same matter by different courts of different countries can be avoided.

Formatted on 14th March 2019.

Footnotes

[1] See Viswanathan R vs. Rukn-Ul-Mulk Syed Abdul Wajid; AIR 1963 SC 1

[2] See Technip S A vs. SMS Holding (P) Ltd. (2005) 5 SCC 465

[3] 1938] 3 DLR 590

[4] Savigny, Private Int. Law, cited in Cheshire, North & Fawcett, Private Int. Law, fourteenth edn, p 6.

[5] Buck vs. Attorney-General [1965] Ch 745, 770; [1965] 1 All ER 883 (CA)

[6] The provision avoids a situation under which the marriage might have been valid in India but invalid under the lex loci celebrationis which would not only be unjust, but may lead to unfortunate consequences in some cases.

[8] Extract quoted by Morris, Conflict of laws, sixth ed., p 7.

[9] Meeriam-webster online dictionary

[10] Ernst Zitelmann, Die, Moglichkeit eines Weltrechts: Unveranderter Abdruck der 1888 erschienenen Abhandlung mit einem Nachwort (1916)

[11] Since then the convention has been amended several times.

[12] The institute is now closely linked with the United Nations and the Council of Europe.

[13] Convention on Economic Assistance, 1956

What is the mandate of UNCITRAL?

The United Nations Commission on International Trade Law (UNCITRAL) (established in 1966) is a subsidiary body of the General Assembly of the United Nations with the general mandate to further the progressive harmonization and unification of the law of international trade. UNCITRAL has since prepared a wide range of conventions, model laws and other instruments dealing with the substantive law that governs trade transactions or other aspects of business law which have an impact on international trade. UNCITRAL meets once a year, typically in summer, alternatively in New York and in Vienna.

What does UNCITRAL mean by the «harmonization» and «unification» of the law of international trade?

«Harmonization» and «unification» of the law of international trade refers to the process through which the law facilitating international commerce is created and adopted. International commerce may be hindered by factors such as the lack of a predictable governing law or out-of-date laws unsuited to commercial practice. The United Nations Commission on International Trade Law identifies such problems and then carefully crafts solutions which are acceptable to States having different legal systems and levels of economic and social development.

«Harmonization» may conceptually be thought of as the process through which domestic laws may be modified to enhance predictability in cross-border commercial transactions. «Unification» may be seen as the adoption by States of a common legal standard governing particular aspects of international business transactions. A model law or a legislative guide is an example of a text which is drafted to harmonize domestic law, while a convention is an international instrument which is adopted by States for the unification of the law at an international level. Texts resulting from the work of UNCITRAL include conventions, model laws, legal guides, legislative guides, rules, and practice notes. In practice, the two concepts are closely related.

Who participates in the drafting of UNCITRAL texts?

UNCITRAL texts are initiated, drafted, and adopted by the United Nations Commission on International Trade Law, a body made up of 70 elected Member States representing different geographic regions. Participants in the drafting process include the Member States of the Commission and other States (referred to as «observer States»), as well as interested international inter-governmental organizations («IGO’s») and non-governmental organizations («NGO’s»).

How many States are members of the Commission?

As is the case with most subsidiary bodies of the General Assembly, which is composed of all States members of the United Nations, membership in UNCITRAL is limited to a smaller number of States, so as to facilitate the deliberations. UNCITRAL was originally composed of 29 States. Its membership was expanded in 1973 to 36 States, in 2004 to 60 States and again in 2022 to 70 members. The membership is representative of the various geographic regions and the principal economic and legal systems of the world. Members of the Commission are elected for terms of six years, the terms of half the members expiring every three years.

Are delegates provided financial assistance for travel and accommodation?

In principle, participation is self-funded. However, a lack of financial resources is clearly a barrier to participating in the work of UNCITRAL. The General Assembly therefore decided, in Resolution 48/32 of 9 December 1993, to establish the UNCITRAL Trust Fund to grant travel assistance to developing countries that are members of the Commission, at their request and in consultation with the Secretary-General.

Subject to the availability of funds, partial funding of either the flight or accommodation could be paid, upon request to the Secretariat, to attend the Commission or a Working Group session.

The availability of funds depends entirely on contributions: to ensure broad participation in Working Group III on Investor-State Dispute Settlement Reform, the European Union and the Swiss Agency for Development and Cooperation have offered to provide financial assistance over the next three years until 2020. Other donors wishing to make voluntary contributions to the UNCITRAL Trust Fund to grant travel assistance to developing countries should contact the UNCITRAL Secretariat for further information.

Is there financial assistance for travel and accommodation for delegates of Working Group III?

Delegates from developing and least developed States who have been nominated for the Working Group III session are eligible to request financial assistance. A specific request for financial assistance would need to be routed to the UNCITRAL Secretariat through the delegate’s Permanent Mission. As a matter of principle, requests are granted on a first come first serve approach to one Government official per State being in charge of the relevant topic, but taking into account the following priority rules:

Least developed States have priority over developing States;

UNCITRAL Member States have priority over non-member States; and

States that have not attended UNCITRAL meetings should be encouraged to attend and therefore have priority.

What are the regional groups represented within the Commission?

There are five regional groups represented within the Commission: African States; Asian States; Eastern European States; Latin American and Caribbean States; Western European and Other States.

How are the interests of developing countries taken into consideration by UNCITRAL?

In accordance with its mandate, (Para. 9 of General Assembly resolution 2205 (XXI) of 17 December 1966, UNCITRAL takes into account in its work «the interests of all peoples, and particularly those of the developing countries, in the extensive development of international trade»). Members of the Commission represent different geographic areas, and are elected by the General Assembly «having due regard to the adequate representation of the principal economic and legal systems of the world, and of developed and developing countries.» (Id., para. 1).

Developing countries play an active role in both drafting and adoption UNCITRAL texts. The commitment of the Commission and the Secretariat to providing training and technical assistance to those countries is also long-standing and constant. Similarly, the General Assembly has expressed strong support for this work. For example, General Assembly resolution 55/151 of 12 December 2000 entitled «Report of the United Nations Commission on International Trade Law» «… reaffirms the importance, in particular for developing countries, of the work of the Commission concerned with training and technical assistance in the field of international trade law, such as assistance in the preparation of national legislation based on legal texts of the Commission».

Is UNCITRAL part of the World Trade Organization (WTO)?

No. UNCITRAL is a subsidiary body of the General Assembly of the United Nations. The Secretariat of UNCITRAL is the International Trade Law Division of the Office of Legal Affairs of the United Nations Secretariat. In contrast, the World Trade Organization (WTO) is an intergovernmental organization independent from the United Nations.

The issues dealt with by the WTO and UNCITRAL are different. The WTO deals with trade policy issues, such as trade liberalization, abolition of trade barriers, unfair trade practices or other similar issues usually related to public law, whereas UNCITRAL deals with the laws applicable to private parties in international transactions. As a consequence, UNCITRAL is not involved with «state-to-state» issues such as anti-dumping, countervailing duties, or import quotas.

Well, there are essentiallyfive stages to a case involving a conflict of laws. ‘Forum shopping? Is that like shopping around to get the best deal in a case?’ ‘Basically, yes.’ Put simply,questions which arise in connection with the main claim.

In theory, the outcome of a case will be the same, no matter which court in

which country finally accepts the case.

A key element in this may be the rules on renvoi.

30 aLabel the functional groups in the box above with these headings.

0 giving examples C giving further details 0 rephrasing C simplifying

b What other phrases can be added to each of the categories?

Speaking 2 : Definitions/Role-play: explaining legal terms to non-lawyers

31 Work with a partner.

Student A:Turn to page 116. Student B:Turn to page 117.

32 Work with a partner.

Student A:Turn to page 116. Student B:Turn to page 117.

Writing: Follow-up letter

33 Write a follow-up letter to the client summarising your interview and advising on
how best to proceed. Include the following:

0 the facts of the case

0 any possible legal issues that might arise

C the stages involved in a case involving conflict of laws

o what your client should now do

C what you will do next.

Explain any difficult legal terms using plain language.

Language Focus

1 CollocationsComplete the phrases using the adjectival form of words from the box.

advise bmd custom enforce government intellect

1. buidwjg. source of law

3 international law

6. property rights

2 VocabularyComplete the sentences using words from the box.

bilateral inter-state non-governmental supranational

1 Finland and Sweden have concluded a. btt^eraL. agreement on

economic co-operation in international emergency situations.

2 A. organisation is a legally constituted organisation created

by private persons or organisations with no participation or representation of any government.

3 The EU is a. organisation that creates, implements and

enforces substantive policies for its members.

4 The International Court of Justice has been criticised for its failure to resolve
. disputes.

3 Explaining legal termsMatch the halves of these sentences, which contain phrases for explaining legal terms to non-lawyers.

1 A customs union is, put a whichrights are granted to an

2 A legal framework is, ininternational body by the signatory

nations to the agreement.

3 A charter is an agreement by

b words,it deals with such questions as

4 ‘Conflict of laws’ refers to which law applies in the case at hand.
the body of law dealing with

disputes between private c slmply ‘ a group of nations who wish t0

persons who live in different remove customs barriers between them «

jurisdictions; in other d essence,a broad system of rules.

THE STUDY OF LAW

People who describe and analyse the legal systems of the world divide them into various categories, or families. Although different classification schemes exist, the following systems are commonly distinguished: civil law,common law(often grouped together as Western law], religious law (e.g. Hindu law, Islamic law and Jewish law], Chinese law and socialist law.In addition, some legal systems can best be described as mixed (or pluralistic) systems.

1 Discuss these questions.

1 What do you think is meant by a mixed system? Do you know any systems that might belong to this group?

2 Which system does your jurisdiction belong to?

3 What is the legal system of the vast majority of English-speaking jurisdictions?

Reading i: Comparative law

2 Read the overview of comparative law below and answer these questions.

1 Why is comparative law growing in importance?

2 What is the HCC, and what is its goal?

3 What is the best-known convention produced by UNIDROIT?

Comparative lawis the study of differences and similarities between different jurisdictions, including civil-law systems, common-law systems and religious(or theological) legal systems.

Comparative law has become of increasing practical importance for two reasons. First, the globalisationof world trade means that commercial lawyers are often required to work with colleagues and clients from unfamiliar jurisdictions. The second reason is the increasing harmonisation(or unification)of laws between previously separate jurisdictions, as with the European Union and the Union of South American Nations.

Comparative law is closely related to private international law and the harmonisation of law. Private international law concerns the applicability of laws in situations involving other jurisdictions. Harmonisation of law developed out of a need to simplify these rules, both at a national level (e.g. the US Uniform Commercial Code) and between sovereign states (e.g. EU law).

Another key aspect of comparative law is the idea of uniform law.There are two main sources of international uniform law: The Hague Conference on Private International Law (HCC) and the International Institute for the Unification of Private Law (UNIDROIT). The Hague Conference, a global intergovernmental organisation with over 60 member states, is the leading organisation in the area of private international law. An increasing number

of non-member states are also becoming parties to the Hague conventions. The statutory mission of the HCC is to work for the progressive unification of private international law in a wide range of areas, from commercial law to international civil procedure and from child protection to matters of marriage and personal status. This involves finding internationally agreed approaches to issues such as jurisdiction of the courts, applicable law and the recognition and enforcement of judgments.UNIDROIT also has about 60 member states and was established to research the needs and methods for modernising, harmonising and co-ordinating private, especially commercial, international law. Its most notable convention is the Uniform Law on the International Sale of Goods, 1964.

Key terms: Expressions used in comparative law

3 Explain what is meant by these expressions in your own words.

1 applicability of laws

2 international civil procedure

3 enforcement of judgments

4 progressive unification of law

Reading 2: Course reader

As part of the curriculum of a Masters Program in Comparative Law at an American university, students take a course in which they learn about the differences between civil law and common law.

4 Read the extract below from the course reader (a collection of texts selected by the instructor) and answer these questions.

1 Where did civil law originate?

2 What is the role of precedent in common-law systems?

3 What does the term stare decisis mean?

4 Which two terms are given in contrast to the term unenacted law, in the final paragraph?

I

Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis (the Justinian Code), and as subsequently developed in continental Europe and around the world. Civil law is highly systematized and structured, and relies on declarations of broad, general principles.

Common law is the legal tradition that evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific situations arising in disputes that the courts have adjudicated. The common law is usually much more detailed in its prescriptions than the civil law. It is the foundation of private law, not only for England, Wales and Ireland, but also in 49 U.S. states, nine Canadian provinces, and in most former colonies of the British Empire (many of which now form part of the Commonwealth of Nations).

Common-law and civil-law legal traditions share similar social objectives (individualism, liberalism, and personal rights). Because of this functional similarity, they are often referred to as the Western law family.

Unit 10 Comparative law I 107

A major difference between common-law and civil-law systems is the heavy reliance on case law in common-law systems. In such systems, me courts interpret statute law through the development of case law. Judicial interpretation of statute is binding until challenged by a higher court. Under the doctrine of stare decisis, lower courts are compelled to follow decisions rendered in higher courts. Thus, precedent is at the core of common-law legal systems. Additionally, the courts in common-law systems are able to develop existing law or legal principles in the gaps left by statute. In arriving at a decision in a case, a court will first determine whether there are any applicable statutory provisions. It will then look to see how these provisions have been interpreted (if at all) in earlier cases, and will apply any binding precedent. If there is no previous case law on the statute, the court will place its own interpretation on the statute. If no statutes apply, the court will look to previous case law. In a common-law system, the legislature can overturn previously developed case law through new legislation.

Although codified law (mainly in the form of statutes) is paramount in both legal traditions, it differs in its importance. In civil-law jurisdictions, priority is given to enacted law over unenacted law. Codes provide the core body of law and are supplemented by decisions in individual cases. Conversely, the opposite is true in the common-law tradition, in which precedent is the major source of law.

5 Find words in the text that mean the same as the underlined words below.
For each pair of synonyms, say which word is more formal.

1 Although civil law originated in Roman law, it was later developed around the world, mainly in Europe.

2 The common law concept of stare decisis forces lower courts to accept decisions of the higher courts.

3 In accordance with the principle of stare decisis, decisions made in higher courts are binding.

4 In both common law and civil law alike, statutes are of greatest importance, even though their functions are different.

6 You have been asked to give a short oral presentation about important
differences between common law and civil law. Using information from the extract
above, complete this table.

Language use: Explaining, comparing and contrasting

7 Underline the words and phrases used for contrasting and for expressing
similarity in Reading 2. Then write them under the correct heading. The first
one has been done for you. There may be more than one possible answer.

Expressing similarity:

8Complete these sentences using the words and phrases for expressing
similarity and contrast from Exercise 7.

1 Civil law and common law. their origins. Common law

was developed by custom, beginning before there were any written laws.

Corpus Juris Civilis.

2 In civil-law systems, court-made law is almost unknown.

in common-law systems, where large areas of law are created and shaped by court decisions.

argument. In the civil law, the principal method of argument is by deduction from general principles or from statutes towards particular cases.

is induction (reasoning from detailed facts to general principle) and analogy (drawing a comparison in order to show a similarity).

9 Present the information from Exercise 6 to an audience, using the expressions
for comparison and contrast from Exercise 7.

istening i: Legal translation

Discuss these questions.

1 What kinds of problem can occur when a legal text is translated?

2 How do you think these problems could best be avoided?

3 Why would a practising lawyer need to be aware of these problems?

^Ho.i Listen to the first part of an excerpt from a lecture held by a guest speaker from Mexico, who has been invited to talk to law students at a US university about legal translation. Apart from language proficiency, what else do legal translators need in order to work effectively?

4z 10.2 Listen to the second part of the lecture. What is meant by the term false friends?

* 610.2 Listen again and answer these questions.

1 What is the first category of words she distinguishes?

2 How should a translator deal with the words in the second category?

3 What problem is posed by the third category? How should it be dealt with?

Do you know any legal terms in your own language that are particularly difficult to translate into English? What makes them so difficult to translate?

Language skills: Finding and choosing legal terms

15 Students of comparative law, as well as practising lawyers, often encounter
unfamiliar terms from other legal systems. Discuss these questions with a
partner.

1 Where can you look for information about unknown legal terms in English?

2 What do you do when you encounter an unfamiliar legal term in English that has no equivalent in your language?

16 Consider this list of sources of information about a legal term. What are the
advantages and disadvantages of each? Discuss your views with a partner.

0 Law firm’s glossary of legal terms on its website

C Online legal dictionary

0 Legal dictionary in book form

C Glossary of terms on the website of an international organisation

0 Google’s definition of a term (results of define: + term search)

0 Finding the term in the context of its use in a document online

17 Look up the following difficult-to-translate English legal terms and try to find an
equivalent in your own language. Make notes about the sources you looked at
and then tell a partner what your solution is and how you found it. Whenever
possible, use the words and phrases for contrasting and expressing similarities.

1 equitable remedy

2 promissory estoppel

3 misdemeanor 1

4 (past) consideration

5 the Lord Chancellor

LAW IN PRACTICELead-in

As trade becomes increasingly globalised, lawyers often find that they need to be familiar not only with their own jurisdictions, but also with the jurisdictions of their international colleagues and clients.

18 Make a list of the three countries whose legal systems you know the most
about. How did you learn about these jurisdictions? How sure are you that the
information you have is correct?

Listening 2: In-company course

Gareth teaches an in-company ILEC course to a small group of judges working in Liechtenstein.

19 4;10.3 Listen to the first part of the discussion during one of Gareth’s classes
with the judges. Which of these different meanings of the term equity is the
closest to that described by Beate, one of his students?

a the difference between the market value of a property and the claims held

against it b the ownership interest of shareholders in a corporation c a system of courts that developed alongside the law courts in England

20 4 i 10.3 Listen to the first part of the discussion again and answer these
questions.

1 Why does the subject of equity come up?

2 Why is Beate able to talk about equity?

3 Why was equity developed?

21 ^cio.4 Listen to the second part of the discussion and decide whether these
statements are true (T) or false (F).

1 The position of Lord Chancellor was removed by the Constitutional Reform Act 2005.

2 Damages is an example of an equitable remedy.

3 If applying the rules of equity would lead to a different resuit than applying the strict legal rules, equity takes precedence.

4 Equity is administered by the Court of Chancery.

22 ^ 610.5 Listen to the third part of the discussion and decide whether these
statements are true (T) or false (F).

1 The German concept of Treu und Glauben is similar to the English ‘clean hands’ doctrine.

2 The French doctrine of the abuse of rights is similar to the English concept of equity.

Look at the audio transcripts for the whole discussion (pages 138-139) and find phrases used for describing a legal system.

[Speaking i: Describing, comparing and wtrasting

24 Choose an aspect of your jurisdiction and explain it to a partner. Where possible, your partner should contrast that either with another aspect erf the same legal system or with the closest equivalent in a foreign jurisdiction. ■ Use the language of describing, comparing and contrasting during your discussion.

e Cambridge International Legal English Certificate (ILEC), an internationally recognised test of legal
■psh. It is designed for lawyers and law students requiring English language skills to work effectively
Ee international legal environment. Unit 10 Comparative taw

Reading 3: Asset protection

Liechtenstein is one of many jurisdictions that have established themselves as tax havens.

25 Discuss these questions.

1 What constitutes a tax haven?

2 What other countries can you think of that are also considered to be tax havens?

3 What is the difference between tax avoidance and tax evasion?

4 What do you think the term asset protection might refer to?

26 Read the first paragraph of the text on page 113. Which of these descriptions best
describes the text?

a A letter of advice from a lawyer to a businesswoman seeking to reduce her tax burden b A memo written by a junior lawyer to a senior lawyer contrasting different forms of

charitable foundation c A summary of various means of safeguarding money from creditors, taken from a

website for businesspeople and lawyers

27 Read the whole text quickly and choose the correct word to complete each of these
definitions.

1 The Stiftung / Anstalt / founder is a type of civil law foundation used to hold assets, property or shares.

2 The Stiftung / Anstalt / trust is a hybrid entity often used as a holding company for overseas subsidiaries.

3 The assets of a Liechtenstein-based foundation are held on behalf of the Council of Members / beneficiaries / creditors.

4 Behaviour that is illegal because it does not obey or respect the rules of a law court is referred to as contempt / holding / interpretation.

Text analysis: Discourse markers for text cohesion

In the letter on page 113, one of the lawyer’s main objectives is to present complicated information in a clear way. In order to achieve this, he uses various words and phrases at the beginning of sentences to show the relationship between ideas. These discourse markers act as ‘lexical signposts’, guiding the reader through the text and making it easier to understand.

In this sentence from the letter, the discourse marker signals that further information about a previous idea is being given:

Furthermore, Liechtenstein law may not protect the settlor from a U.S. court’s finding of contempt.

The word furthermore, which here means ‘in addition’, shows that an idea introduced in the previous sentence will now be further developed. In this case, the general idea being expressed is that the asset protection methods discussed in the text may not offer 100% security from legal challenges.

28 Look at the highlighted discourse markers in the letter and decide which of the
following four functions each discourse marker fulfils. List any other similar words
or phrases you know.

Dear Ms Radford

Asset protection entities in Liechtenstein

Your instructions to me were to provide a summary of the structures available in Liechtenstein to facilitate your need to insulate future liabilities. I have now had the opportunity to research this and can provide you with the following details.

The Stiftung is a type of foundation, commonly used to hold assets, fixed property or shares. It is created by a founder, from whom it has a separate legal identity. A Stiftung is not subject to any form of income tax, capital tax, transfer tax or inheritance tax in Liechtenstein. Its assets must be segregated from any personal assets, and are generally not available to the founder’s creditors. The bylaws of such entities are typically not filed in any public registry. Consequently, it is very difficult to get information about a Stiftung registered in Liechtenstein.

Notably, the Stiftung cannot be used solely for commercial purposes. Instead, it is designed to act as a private foundation. For asset protection purposes, it is better if the Stiftung is created for the promotion of some important interest (such as to further education or medical research) because there may be less chance that contributions to it made for asset protection purposes will be considered fraudulent by any investigating authorities.

While a Stiftung may have beneficiaries, including the founder, it cannot have any shareholders. That said, named beneficiaries are not recommended, as they can give the Stiftung the appearance of a foreign asset-protection trust. Because of this, the Stiftung should be limited by its terms to supporting the purpose for which it was created. Despite this limitation, there are methods to utilize the assets of a Stiftung to endow private scholarships, etc.

Besides the Stiftung. the most important entity for tax purposes in Liechtenstein is the Anstalt, a hybrid of a company limited by shares and a foundation. Such entities are commonly used by foreign companies as a holding company for overseas subsidiaries. The Anstalt has no members, participants or shareholders, but can have beneficiaries. The principal practical difference between an Anstalt and a Stiftung is that, unlike a Stiftung, an Anstalt can conduct all kinds of business activities.

The civil-law basis of these entities, and the fact that they usually do not have identifiable beneficiaries, make them very difficult for U.S. creditors’ attorneys to conceptualize, and thus attack. Nevertheless, it must be noted that a U.S. judge could simply treat them as foreign asset-protection trusts and order that their assets be repatriated. Furthermore. Liechtenstein law may not protect the settlor from a U.S. court’s finding of contempt.

1 The terms Stiftung and Anstalt are both German nouns and, as such, begin with a capital letter.

peaking 2: Advising on asset protection

29 You are commercial lawyers specialising in asset protection. You have been asked to advise an American client on the asset-protection entities available in Liechtenstein. Discuss the advantages and disadvantages of the various entities with a partner and decide how to advise your client.

riting: Letter summarising options

Your client is concerned that the asset-protection entities in Liechtenstein might prove difficult and expensive to administer. Using the notes on page 115, write a letter to your client outlining the Panamanian foundation, another popular form of asset protection. Use discourse markers to explain, compere and contrast the foundation with other forms of asset protection.

Unit 10 Comparative law

Language Focus

1 Word formationComplete this table by filling in the correct forms of the words listed.

SynonymsMatch each word or phrase (1-5) with its synonym (a-e).

avery important bforce

con the other hand dsubsequently eharmonise

CollocationsMatch the verbs in the box with the nouns they collocate with Gudgment or law); some of the verbs collocate with both nouns.

VKjfy fcVtafc towwawsa modernise recognise render

2a law:

4 Discourse markersComplete this text using the words and phrases from the box.

however in addition notably therefore thus

This essay discusses changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include

greater attention to other disciplines, 1). wbably. economics and behavioural

sciences, and the contributions they make to a fuller understanding of the legal

law in textbooks may differ from the law in action. 3). nearly every law

school is investigating the consequences of legal rules through clinical legal education, which provides a real or simulated laboratory experience for law students. The most

classifications of subject matter, which attempt to provide the advanced student a method for organising his or her knowledge about the legal system.

inspire students to think creatively about legal problems by providing new insights into the legal system.

© Hugh J. Ault and Mary Ann Glendon, I’he importance of Comparative Law in Legal Education: United States Goals and Methods of Legal Comparisons, 27 J. Legal Educ. 599-608 (1975-1976)

Unit to, Exercise 33