Private international right
The private international law is that branch of law whose purpose is international conflicts of jurisdiction, conflicts of international laws, procedural cooperation and determining the legal status of foreigners.
This branch of law analyzes international legal relations either between private parties, or where there is a private interest. This legal relationship has the particularity of having an element foreign to local law, which gives rise to conflicts of jurisdiction or applicable law, and its purpose is to determine who can know about the subject and what law must be applied.
In some countries, this branch of law is known as international civil law.
Private international law does not resolve conflicts, but rather determines the norm or law of which country should be used in the solution of international conflicts, as well as the judge who will resolve this controversy (regulatory position).
Modernly, the doctrine is changing towards a substantialist position[citation required], where within private international law norms are included that directly resolve cases that may arise, and focuses the study of this branch of law, not on the indirect rule or conflict, but on international private legal relations, which is where the controversies that international private law will take over really lie.
It also deals with issues of great importance regarding legal relations between States. In this order of things, regulates the execuatur and extradition.
Characteristics of private international law
- It is a national law: each country dictates its own rules of private international law, which can lead to conflicts between them.
- It is a positive right: its rules are found in various legal texts, preferably in civil codes. They are also found in treaties in which countries determine the best way to resolve conflicts of law.
- It contains a particularizing element: the term "foreign" within the relationship.
- Forum shopping: it consists of the practice of lawyers to raise the resolution of their international disputes before the competing court and, in accordance with the applicable law, will give the legal answer more favorable to their interests.
The privatist conception of private international law
It is called "international private relations" those that in their composition present foreign elements, whether subjective or objective, the first referring to people and the second to assets or legal acts that make up said relationship. (Gonzalez Martin 2008)
There are four sources of private international law; 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 is integrated by 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 aspect. 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 institutional private international law norms must be integrated into the same national legal 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 affirmed that private international law is the sector of the national legal system that regulates international private 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 competence and recognition and execution of sentences foreign judicial decisions or foreign arbitral 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 by originating in France and with a strong influence in a large part of Latin America, points out that nationality, the legal status of foreigners and conflicts are subjects of study of the subject of laws and conflicts of jurisdiction. (Pereznieto Castro, Leonel, 2006)
Finally, according to the school of intermediate conception, the thematic content of private international law is the so-called international judicial competence, the applicable law and the recognition and execution of foreign judicial sentences or foreign arbitral 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 derived from an international private relationship.
The applicable law is the sector dedicated to determining what will be the law according to which the merits of the matter derived from an international private relationship will be resolved, within which there are various regulatory techniques that are:
• The rule of conflict,
• The special material norm (among which I include the material norm of private international law and the material norm of uniform law),
• The extension rule and,
• The rule of immediate application
Finally, the recognition and enforcement of foreign court rulings or foreign arbitral awards is the specific sector of private international law that determines the requirements and impediments that must be met in cases in which recognition and, where appropriate, enforcement must be known. of a judgment or award rendered abroad.
Issues of private international law
Application of foreign law
When an indirect norm 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 it only corresponds to apply it when it has been alleged and duly proven by the party that requires it.
Ratings
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 authority to qualify is the civil law of the judge hearing the lawsuit. The legal basis: it is argued that the legislator, when declaring a foreign law competent, restricts the application of its internal rules, that is, the definition of the terms of the indirect rule must be given according to the law of the judge.
The practical foundation: Niboyet points out that a need practice leads to following the lex fori, says that the case of the holographic testament of the Dutch is governed by the law of the place of celebration of the act in terms of form, for the capacity by the national law of the incapable.
How to determine the competent law without previously setting the qualification? For him, prior qualification is only possible by applying the lex fori.
The sovereignty argument is abandoned, and the theory is asserted mainly on the following grounds. The determination of the foreign law applicable to a legal relationship presupposes the prior identification of the competent law, but for this the relationship must be qualified, and that function is the sole responsibility of the lex fori. On the other hand, there is an indisputable 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 qualification of goods to the lex causae, and in terms of autonomy of will, as does Niboyet.
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 merits of the matter, once designated by conflict of law rules. The qualification must be given by the competent law 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 soon as he organizes and regulates said relationship.
This author excludes connection points from the lex causae qualification. It 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". He criticizes this theory saying that it determines 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 the lex causae is that it can refer to another right and, therefore, the lex causae is not final either.
Previous question
For the resolution of a matter of private international law it may be necessary to resolve a previous or preliminary question related to the main one. For example, in an international succession (main question) it is necessary to decide on the validity of an adoption (prior question). That is, the "main question" always depends on the resolution of the so-called question"incidental", these incidental issues can be one or more issues to be resolved by the competent judge, and once the "previous issue" is 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 of the main question depends on it. What is analyzed is which law is applicable to the previous question.
It is a preliminary or incidental question that arises when in a private law case with foreign elements the main resolution is subject to the resolution of this incidental question. For example, to be able to decide the hereditary vocation between surviving spouses first The validity of the marriage must be resolved.
JURISPRUDENTIAL CASE- PONNOUCANNAMELLE C/ NADIMOUTOUPOUELLE
BY CHALLENGE OF WILL. (PREVIOUS QUESTION, EXAMPLE)
Family of British nationality from India with several legitimate children and one adopted child. The adoption of Soccalingam is done according to Indian (British) law.
Soccalingam marries and has a legitimate son.
Soccalingam he dies before his adoptive father, his adoptive father had assets in Cochinchina belonging to the French State. His his 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 public of the Indies French.
Soccalingam's son is represented by his mother, Soccalingam's wife. The mother challenges the will, is based on the fact that the Napoleonic Code, which establishes that real estate located in France should be governed by French law, which calls for the succession as legitimate heir to the adoptive grandson who by right of representation occupies the place of the predeceased father.
Both Saigon Court, as the Court and the Court of Cassation reject the Ponnoucannamelle's claim. Acknowledges that the 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 real estate of the adopting deceased located in Cochinchina because the rules on succession transfer of real estate located in France are They are linked to the royal statute and are governed exclusively by French law and, secondly, because art. 344 of the French Code prohibits the adoption to who have legitimate children and constitutes a rule of public order, which would be violated if an adoptive heir under foreign law were admitted in the succession of the adopter open in France in concurrence with the legitimate children.
Consequently, the main cause is succession and the incidental cause is adoption.
The private international law II of 1979 establishes that the preliminary questions should not necessarily be resolved according to the law that regulates the main question.
Forwarding
(Case for which the forwarding 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, he leaves no descendants and when he died in 1869 he does not leave a will.
Litigation involving the collaterals of Forgo's mother and the French Treasury regarding to the movable relict patrimony located in France.
The collaterals invoked Bavarian law, according to which collateral relatives inherited, while the treasury relied on French law, in which the collaterals from extramarital parents do not inherit.
Forgo's legal domicile was in Bavaria, even though his de facto domicile was in France. The French court applies Bavarian law in the first place because Forgo did not have a legal domicile in France and inheritance law is governed by nationality law, it refers the case to Bavarian law, but Bavarian private international law rules understand that in the institution of succession governs the last domicile of the deceased; consequently, the judges of France consider themselves resubmitted 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, that is, 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 originator lived in the United Kingdom, so forwards him 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.
Middle reference theory: the judge's private international law rule refers to foreign private international law and foreign domestic law, but it is necessary for foreign law to accept remission and admit 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, consequently, it returns to the State original and this must look for another point of connection with another right.
Maximum reference theory: the judge's dip rule indicates another as applicable foreign law, that is, it applies to foreign private international law, as well as indirect import and export rules and applicable law.
The following can happen: in the case of acceptance, the rules of foreign private international law declare their internal law applicable, but in second degree resubmission the
norms of foreign private international law do not declare domestic law applicable, but declare the law of another State applicable; For example, the judge of State A declares applicable or refers the case to State B, which does not apply its domestic law and refers it to State C, which accepts the invitation and applies its law
internal.
It can also happen that none of the dips declared applicable want to apply their internal law, in this case this refusal refers it to the first State (forwarding first).
FOR FORWARDING TO OCCUR, THERE MUST BE TWO ORDERINGS LEGAL PROCEDURES THAT HAVE RULES OF PRIVATE INTERNATIONAL LAW; THAT THE CONNECTION POINTS ARE DIFFERENT AND THAT THE THEORY OF MAXIMUM REFERENCE IS GIVEN.
Fraudulence of the law
Through a series of acts, which in isolation may be lawful, an attempt is made to avoid the application of the law that would normally govern the international relationship, submitting to a more beneficial one.
International public order
Public order is an exception to the application of the competent foreign law, due to its manifest incompatibility with those principles and values that are considered fundamental in the legal system of the forum.