Private International Law

The true Roman ius gentium, deciding over matters of Roman citizenship, and the role of the jurist known as the praetor peregrinus, who settled disputes between Roman and non-Roman citizens within the Empire, covered the personal, commercial, contractual and legal relations between Roman and foreign citizens. Private international law became more significant and demanding in medieval commerce. The 14th century scholar Bartolus de Saxoferrato from Bologna in northern Italy contributed to the Statutist Doctrine - the codification of legal relations - in international private law. He prescribed - as if it were a codification - the applicability of local or foreign rules in conflicts of laws, and is among the first to publish on the topic.

Saxoferrato as a teacher.

The succeeding French Statutist Doctrine was elaborated by the Dutch jurist Ulricus Huber in his Heedensdaegsche Rechtgeleertheyt (Contemporary Jurisprudence), mainly in the field of territoriality of the forum.

Choice of law The principal and still valuable author on private international law was the 19th century German professor Friedrich Carl von Savigny.

English translation of Von Savigny's main work, System des heutigen Römischen Rechts.

In his System des heutigen Römischen Rechts he drafted a system of general and internationally applicable rules on legal relations in order to solve conflicts of laws. Later P.S. Mancini added the element of nationality.

In modern developments Von Savigny's idealism and his limited realism concerning the issues in society have given rise to pragmatic solutions (cf. Albert A. Ehrenzweig's words, that "conflicts doctrine has always been 'universalist' and this universalism has always been an illusion"), in recognition of the fact that private international law is case driven. The lex fori approach in choice of law rules is professed by Ehrenzweig; local law has to be applied, if only - as is the West-European translation - because judges aren't capable of applying foreign law in any concrete manner.

Albert Ehrenzweig and his wife.

This New American Revolution on the choice of law has occasioned various related views. Brainerd Currie has explained that the law of the forum is applicable if the governmental interest of the states involved and of states in general creates a true or false conflict of laws. David F. Cavers has laid down principles of preference to be applied in similar legal and factual situations in choice of law rules. Robert A. Leflar's better law approach in The Law of Conflict of Laws resonates the most pragmatic stand.

Universally, but in particular in the United Kingdom, Dicey and Morris's On the conflict of laws is of preeminent interest; it is even said to be "the prince of legal textbooks". Albert Venn Dicey (1835-1922), Vinerian Professor of English Law at the University of Oxford, published his Treatise on the Rules for the Selection of the Parties to an Action in 1870 and The Law of Domicil in 1879. The latter was expanded and reissued in 1896 as Digest of the Law of England with Reference to the Conflict of Laws; this manual was enlarged and edited several times. In 1949 John H.C. Morris (1910-1984) contributed to the revival of Dicey's work, "preventing it from dying a natural death", by taking care of the 6th to 10th editions. In 2000 the 13th edition of this seminal textbook was published.

France In France Henri Batiffol is seen as the leading author on private international law. In Aspects philosophiques du droit international privé, published in 1956, he ascribes an important role to private international law as a coordinating mechanism for various distinct though coexistant legal systems, and henceforth for international relations and international society.

Dutch interest In the Netherlands, irrespective of the originality and importance of T.M.C. Asser nor of his Schets van het internationaal privaatregt (1880), Het internationaal burgerlijk recht in Nederland (1917, 1st edition) by the Groningen professor and Supreme Court President Jan Kosters was widespread in use. Other key scholars in the discipline of private international law in the Netherlands are D. Josephus Jitta, I. Henri Hijmans, R.D. Kollewijn, E.M. Meijers (Leiden University, lecturer at the Hague Academy of International Law on "L'histoire des principes fondamentaux du droit international privé a partir du moyen age specialement dans l'Europe occidentale" (Recueil des Cours, 1934-III, pp. 547-686), J.G. Sauveplanne, C.C.A. Voskuil (who directed the T.M.C. Asser Institute, a Dutch research organization on international and European law), A.V.M. Struycken (on the influence of the European integration upon the development of private international law (Recueil des Cours 1992-I, pp. 257-384), Dutch member of the Curatorium of the Hague Academy of International Law), H.U. Jesserun d'Oliveira (also known for his scholarship on poetry), M.V. Polak (codification issues, member of the Peace Palace Library Support Foundation), Th.M. de Boer (codification issues), and L. Strikwerda (Groningen professor and Supreme Court Judge, member of the Peace Palace Library Support Foundation).

Logo of the T.M.C. Asser Institute

Private International Law has inextricably been connected with the city of The Hague. Tobias Asser founded the Hague Conference on International Private Law in 1893, an instrument for successful negotiations on the convergence and unification of systems of civil and commercial law of the various countries, and the basis for codification of private international law. Asser was rewarded the Nobel Peace Prize in 1911 for his efforts in this field. The first Secretary General of the Conference was M.H. van Hoogstraten, father of the present director of the Peace Palace. The Hague Conference on International Private Law publishes Actes et Documents of its sessions.

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