Derecho internacional privado

FINAL ACTIVITY

A. WHAT IS PRIVATE INTERNATIONAL LAW ?

Private International Law is the body of rules of domestic law of a state which applies when a legal issue in private matters contains a foreign element and it has to be decided which court has jurisdiction or which law is applicable the given dispute. It also seeks to determine whether, and if so under what conditions, a judgmentrendered by a foreign court will be recognized and enforced domestically.
This is only a short summary of what is Private International Law. To understand the totality of this area of law, we have to examine this definition in detail.

I. Private International Law rules typically apply when a legal dispute has an international element. If a case contains no foreign element (connecting factor),Private International Law is irrelevant. For example, if a German man and woman who are both German citizens, domiciled and resident in Germany, go through a ceremony of marriage in Germany and later, when they are both still domiciled and resident here, the wife petitions a German court for a divorce, no foreign element is involved and no problem arises. But if we vary the facts and suppose thatin this example at the time the wife petitions for divorce the husband is domiciled and resident in France, and that the ceremony had taken place in France, we have the required connecting factors and Private International Law becomes relevant.
Any manipulation of these connecting factors to avoid the application of a legal norm is called “Fraude à la loi”, e.g. the obtaining of the citizenshipof another state to avoid obligations or liabilities stipulated in the law of the home country (cp. case Princess Baufrremont Affaire).

II. Private International Law consists of three main topics, which concern respectively the jurisdiction, the choice of the applicable law and the recognition and enforcement of foreign judgments.

1. Jurisdiction
So Private International Law includes thequestion whether an appealed forum court has the power to resolve the dispute at the hand. Problems that can arise in conjunction with the question of the jurisdiction of a court are the forum shopping and the forum non conveniens.
Forum shopping means taking advantage systematically of coexistent competences to obtain certain judicial or real benefits. Even though forum shopping seems to befavorable, it provokes the danger of an international double-process. For example, when a French woman and a Moroccan man want to get a divorce, it can evoke a “race to the courts” because the woman perhaps wants to obtain the divorce in France, the man in Marocco. The problem that can arise thereby is which petition (or generally which action) was the first one and so which judgment of which courtshould be recognized and enforced.
Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. But it can ocurr that a court – particularly by applying the domestic law of the forum (lex fori) – decides a case with no real contact to this law, like e.g. in the famous case of Kuwait Airways Corporation vIraqi Airways Company, where an English court had jurisdiction although there was no connection to England.

2. Choice of law
The core of a Private International Law case is often the question what law is applicable in the given issue. So the choice of laws refers to the area of law in which the court where an action is brought determines whether to apply the law applicable in that court or applythe law applicable in another jurisdiction which has an interest in the controversy.
Because of the internationality of such cases, not only one law comes into consideration but there are several possibilities to solve these disputes, e.g. with the application of the lex causae, lex domicilii, lex situs, lex loci actus, lex loci delicti, etc.
Another instrument which is applied in this area of...