Saint Augustine University of Tanzania

Faculty of Law

Private International Law

SLW 323

Lecture Notes for LL B 3

Compiled by D. M. Nyamaka

February 2012

Introduction

The term International Law refers to the implicit and explicit agreements binding
nation-states, and which system adheres to set values and standards. The difference
from other legal systems is in the fact that it applies to international issues between
nations or nations and private individuals. Under the banner of International Law, are
Public International Law, Private International Law and Supranational Law.

This concept of International Law has existed for hundreds of years, but the more
modern understanding of International Law was developed in the mid-19th century,
after two World Wars caused the creation of the League of Nations, the International
Labor Organization and other organizations responsible for developing standards for
international agreements and the conduct of war. The League of Nations was formed as
a result of the Treaty of Versailles, after World War I to assist in settling international
disputes. However, the advent of World War II proved its lack of overall success and
the League was replaced by the United Nations after the war.

The United Nations was created on June 26, 1945. Although there are other
international organizations, the UN has become the most influential. Its purpose is to
maintain security, promote peace, and generate friendly relations and cooperation
internationally. The organization that provides judicial intervention in UN matters is the
International Court of Justice.

Public International Law is that area of law that revolves around the relationships of
subjects of the International Law, such as the United Nations, maritime law,
international criminal law and the Geneva Convention. This also includes sovereign
nations and, sometimes, movements within a nation for national liberation or even
armed insurgency. These matters are governed by custom, consistent practices, or


Assistant Lecturer SAUT [LL M-Economic Law] SAUT, LL B (Hons) RUCOSAUT

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agreements, such as treaties. On occasion academic or expert legal opinions, as well as
accepted standards of human behavior can also be used.

Private International Law (also known as conflict of laws) regards jurisdictional

questions, such as where a case may be legally heard and what jurisdictional laws apply
to the issues at hand. Private International law deals with conflicts that are between
private individuals, and not between states, as in Public International Law.

Supranational law relates to the rights of different sovereign nations and how they are
limited as to each other. What Public International Law differ from Supranational Law is
the fact that in the Public International Law, nations have surrendered their decision
making rights internationally to an outside common institution, like the United Nations.

One example of a situation where sovereign states have created a shared system of
governance for the express purpose of social and economic benefit is the European
Union. It is not, however, truly supranational, as the member states have retained the
option to withdraw from the system at will. Another group of sovereign nations that are
in the process of creating a form of supranational law is the East African Community,
which includes the states of Kenya, Tanzania, Uganda, Burundi and Rwanda. Their goal
is to have such a system of governance in place by 2010.

CONFLICT OF LAWS IN TANZANIA /INTERNAL CONFLICT OF LAWS

Tanzania has a multi legal system in the sense that there are many laws which are
applicable simultaneously throughout the country. In such cases it may happen that
some laws may apply in one legal problem and as a result bring different outcomes.

When there is more than one law applicable to one legal problem with different
outcomes we say there is a conflict of laws. When the conflict is among / between laws
of the same country (municipal) it is commonly termed as an internal conflict of laws.

International conflict of laws is dealt with under international private laws. The question
of internal conflict of laws is of concerns here in this juncture. From the philosophical
underpinnings in Tanzania conflict of law rules a student will be in a position to question
critical and build a focus to private international law.

The situations for conflict of laws in Tanzania

I. Written and customary law

II. Customary law of a particular community and another
III. Customary law and Islamic law
IV. Written law and case law
V. Rule of international law and any municipal law
VI. Any law and the constitution
VII. One written law and another written law
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 VIII. Case law and any other law
IX. A constitution and a constitution

Other Laws and the Constitution

In countries with written and codified constitutions the constitutions are place at a
higher position than ordinary laws. The jurisprudence behind that placement is to
protect the fundamental principles enshrined in the constitution. The constitution is
believed to owe its origin from the higher authority i.e. the voice of the people and it is
not enacted by the Parliament as ordinary laws but by the Constituent Assembly on
behalf of the people. In these countries, the constitution is supreme 1 and in case of a
conflict between any law and the constitution, that other law is to be considered null
and void i.e. unconstitutional. This is the basic principal in democratic countries as the
constitution is the supreme law. In Tanzanian context, article 64(5) provides for the
supremacy of the constitution, as to a conflict with any law, the constitution prevails
and that other law becomes void.

Surprisingly, article 30(5) of the Constitution of the United Republic of Tanzania creates
a room for a law declared void to continue existing until the other authority finds an
opportunity to rectify the situation. But the term opportunity as is coined under this
article seems not to adhere speedily to the concept of constitutional supremacy.

In Tanzania, there is a number of laws that have been declared null and void and a
number of case laws that declared such laws unconstitutional.

Daudi s/o Pete v R, High Court at Mwanza, Misc. Criminal Cause No. 80 of 1989. In this
case as far as conflict of laws is concerned, the key issue was whether bail is a right or
privilege. It is a conflict between Article 13 (6) (a) and section 148 (4-5) of the CPA.
The court developed a principle that bail in Tanzania is a right and not a privilege and
thus section 148 of the CPA is unconstitutional as it conflicts with the principle laid
down in the constitution on presumption of innocence and separation of powers.

Chumchua s/o Marwa v Officer i/c of Musoma Prison and Another, HCT at Mwanza,
Misc. Criminal Cause No. 2 of 1988. In this case the conflict was between the Bill of
Rights as is contained in the constitution and the provisions of the Deportation
Ordinance of 1921. The court held that the Deportation Ordinance is unconstitutional
for it conflict the Bill of Rights especially the right to live as a free person.

Bernado Ephraim v Holaria Pastory and Another HCT at Mwanza (PC) Civil Appeal No 70
of 1989. The main concern in this case was the right of a woman to sell a clan land and
the haya customary law which prohibit women to sell clan land. The high court upheld

1
See Article 2 of the Constitution of Kenya 2010, Article 64 (5) of the Constitution of the United Republic of
Tanzania, 1977.

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the decision of the district court that the Haya Customary Law conflicts the Constitution
as it is discriminatory, thus inconsistent with Article 13 (4).

Other cases to read:

Lesnoi Ndeinai and Another v Regional Prisons Officer and Another HCT at Arusha, Misc.
Criminal Cause No. 22 and 23 of 1979.

Peter Ng’omango v Gerson M.K Mwangwa and Another, HCT at Dodoma, Civil Case No
22 of 1922.

Lohay Akoonay and Another v A.G, HCT at Arusha, Misc. Civil Cause No 1 of 1933.

Shaaban Mloo and others v SMZ (1990)

Rev. C. Mtikila v A.G (1993)

Students are assigned to read these cases and present in class.

Written law and another written law

Conflicts between written laws especially from new laws or amendments are generally
governed by the Interpretation of Laws and General Clauses Act no 17 of 1996 [CAP 1
R.E 2002]. However, in some scenarios, this Act may fail to resolve the conflict, if that
happens then one will have to consult the constitution or case where applicable.

In the case of Ibrahimu Hassan and Another v R (1991) TLR 106, the conflict was
between section 49 of the Interpretation of Laws Act and section 4 of the Minimum
Sentence Act, 1972.

Section 49 …” where an act constitutes an offence and the penalty for such an offence
is amended between the time of the commission of such offence and the conviction, the
offender shall, unless the contrary intention appears, be liable to the penalty prescribed
at the time of the commission of such offence.”

Section 4…” where any person is, after the date on which this act comes into operation,
convicted by a court of scheduled offence, whether such offence was committed before
or after such date, the court shall sentence such person to a term of imprisonment
which shall not be less than that prescribed by this Act.”

Armed robbery by that time (1988) was 15 years MSA changed it to 30 years, and thus
the two laws were in conflict. The Court adopted article 13 (6) ( c ) as a solution to the
conflict.

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Written Laws and Customary Law

A rule in customary law may conflict with the rule in a written law especially in matters
of inheritance, marriage, succession etc. The Probates and Administration of Estates Act
[CAP 352 R. E 2002] and the Indian Succession Act, 1872 are some of the statutes that
govern matters of inheritance. Sections 2 and 11 of the Judicature give guidance on the
laws that are applicable in Tanzania including customary and Islamic laws. In applying
these laws a conflict may arise as to which law shall be applied.

One of the obvious conflict is the controversial between the Probates and
Administration of Estates Act that recognize the widow to inherit and control the estate
of her deceased husband contrary to many customary laws of Tanzania. In many cases
when a conflict arises between customary law and statutory law, the rule in statutory
law shall prevail.

See the case of Maagwi Kimito v Gibeno Werema, CA, [1984] (unreported) where a rule
was developed that in case customary law conflicts with statutory law, the rule in
statutory law shall prevail. The application of customary law is subject to any statutory
law that exists on the same issue.

Section 11 (3) of the Judicature and Application of Laws Act2 provides that…

In any proceedings where the law applicable is customary law, the court shall apply the
customary law prevailing within the area of its local jurisdiction, or if there is more than
one such law, the law applicable in the area in which the act, transaction or matter
occurred or arose, unless it is satisfied that the proper customary law to be applied is
some other law:

Provided that the court shall not apply any rule or practice of customary law
which is abolished, prohibited, punishable, declared unlawful or expressly or impliedly
disapplied or superseded by any written law.

From the above case and statutory provision, customary law is the primary law of
courts in Tanzania i.e. the law that is to be consulted first unless that law is repugnant
to justice and morality or conflicts statutory law.

Customary Law with another Customary Law

Such a conflict may happen in a number of situations; for example where there is more
than one customary law that may apply in a particular area or case, or where the
parties to a case abide to different customary laws e.g. from matrilineal and patrilineal
societies. In such a conflict, neither of the customary law shall apply as per section 11
(3) above. Other laws shall apply.

2
CAP

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Customary Law and Islamic Law

Most conflicts here are on specific issues like inheritance, marriages, divorce and
division of matrimonial properties, guardianship of children etc. The Law of Marriage
Act, 1971 guides all matters of marriage however, does not stop Islamic law to be
applied but in case of conflict, the Law of Marriage Act shall prevail.

Section 11 (4) of the JALA provides….

Notwithstanding the provisions of this Act, the rules of customary law and the rules of
Islamic law shall not apply in regard to any matter provided for in the Law of Marriage
Act.

It is the duty of the court to decide which of the laws to be applied when a conflict
arise. The court shall adopt the law that provides justice.

See the case of Seif Marare v Mwadawa Salum [1985], TLR 253

The respondent sought and obtained from the Primary Court her appointment as an
administrator of the Estate of the deceased. She maintained that as the sister of the
deceased she was entitled to administer the Estate under Islamic Law. The appellant, a
nephew of the deceased's husband who had himself died much earlier, disputed the
respondent's appointment as administrator. His objections failed both in the Primary
Court and in the District Court, hence this appeal to the High Court.

Held: (i) On application for appointment of an administrator of a deceased’s estate,

the duty of the court is to appoint as administrator a person who has an interest in the
estate, and according to the wishes of the deceased if any are expressed;

(ii) as the applicant in this case could only sustain his claim of having an interest
in the Estate through Customary Law and the respondent could only sustain her similar
claim through Islamic Law, either party may be the interested party depending on what
law the court decided to be the law applicable;

(iii) the Primary Court (having jurisdiction under both Islamic and Customary
Law) applied no wrong principles in appointing the respondent the administrator.

Defining Private International Law

Private International law is part of private law of a particular country which deals with
cases having a foreign element. Foreign element means a contact with some system
of law other than that of the forum i.e. the country whose courts are seised of the case.

Private international law, also known as conflict of laws in more common law-oriented
jurisdictions, is the body of law that seeks to resolve certain questions that result from
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the presence of a foreign element in legal relationships.  Examples of such relationships
include contractual disputes between parties located in different jurisdictions, the
marital status of partners of different nationalities, the legal status of real estate located
in a foreign jurisdiction, and, in the intellectual property context, disputes between a
copyright owner residing in one country and Internet users residing in other countries
who are accused of making available, on servers located in multiple jurisdictions,
copyrighted material for download by any person anywhere in the world, without the
necessary permissions.

For example: a contract is made in Zambia is to be performed in Uganda and one of the
parties is not a Zambian. On the other side if the contract is made in Tanzania between
two Tanzanians, a claim for breach of contract in Tanzania does not have a foreign
element. Assume that the contract was made in Kenya between a Kenyan company and
a Tanzanian company and was to be performed in Uganda, then the case is a case in
the conflict of laws not only for a Tanzanian court but also for a Ugandan and Kenyan
courts, and indeed for any court in the world in which the contract is litigated. The
‘forum’ in which the contract is litigated have to use its “choice of law” rules to decide
whether to apply Tanzanian, Kenyan or Ugandan law, deciding in effect whether
Tanzanian, Kenyan or Ugandan elements are the most significant.

Lord Nicholls of Birkenhead explained…

” a conflict of laws jurisprudence is concerned essentially with the just disposal of

proceedings having a foreign element. The jurisprudence is founded on the recognition
that in proceedings having connections with more than one country an issue brought
before a court in one country may be more appropriately decided by reference to the
laws of laws of another country even though those laws are different from the laws of
the forum court.”3

The jurisprudence behind PIL, as laid down in the case above entail in the
nutshell:

 Recognizing the right acquired in other countries

 Enforcing those rights in other jurisdictions
 Applying a foreign law in another country
 Enhancing procedures of the forum
 To prescribe the conditions under which the court is competent to entertain a
claim.
 The application of the local law would bring injustice.

3
Kuwait Airways Corp vs Iraqi Always Co(Nos 4 and 5) [2002] UKL 19.

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Thus; PIL- is that part of law which is preferred by the court when the issue affects
some fact, event or transaction that is closely connected with a foreign system of law as
to necessitate recourse to that system. Simply, private international law means the
rules voluntarily chosen by a given state for the decision of cases which have a foreign
complexion.

QN. It is contended that, it is no derogation of the rule of territorial sovereignty to take

account of a foreign law. Substantiate.

QN. By using decided cases discuss the jurisprudence behind private international law

Private International Law or Conflict of Laws?

Under this course, there is no name that commands universal approval. The name PIL
is believed to have been coined by story in 1834, and adopted later by Westlake and
Foote-English Philosophers. It is commonly used by civil law countries including Spain,
Italy, and France etc. The conflict of law is the name commonly used in USA, Canada,
England and other Commonwealth members. The Germans and other Germanic
speaking countries use the term International Private Law for this course. Conflict of
laws is a system that exists in almost every country. The differences in rules are what
makes difficult for international community to unify what is also known as private
international law. Those who are in favor for the name Private International law they
basically think and argue in terms of territorial perspectives. But the two names are
commonly known and used interchangeably and can bring no harm.

Private international law is generally considered to consist of two major branches.  The
first branch seeks to determine which nation's courts have jurisdiction over disputes
involving a foreign element and which conditions need to be met for decisions of
foreign courts to be recognized and enforced within a country ("jurisdiction and the
recognition and enforcement of judgments").  The second branch seeks to determine
which nation's laws are to be applied to govern the substance of legal relationships
involving a foreign element ("applicable law"). Private international law is, contrary to
what the label suggests, not international law strictu sensu, i.e., it does not constitute a
set of rights and obligations between States.  To the contrary, private international law
is municipal law and essentially aims to regulate conduct between private parties.  Its
only "international" dimension results from the fact that it comes into application
because of the presence of a foreign element.  One consequence of the inherently
municipal nature of private international law is that each country has its own set of
private international law rules.  As there is relatively little harmonization or coordination
of these various rules at the international level, and as they tend to be complex and
therefore hard to apply consistently, there is no guarantee that the same dispute
involving a foreign element will be decided upon in the same manner from one
jurisdiction to another (each jurisdiction reaching different results, on the basis of
different rules of private international law).

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Another peculiar feature of private international law rules, in particular those concerning
applicable law, is that they are neither substantive, nor procedural in nature.  For
instance, according to most private international law rules, questions concerning the
legal status of real property are to be determined by reference to the substantive law of
the country where the real property at issue is located.  The private international law
rules concerned thus do not purport to resolve the substance of the question, but
merely function as a rule of attribution (or allocation) which allows determining from
among the laws of all countries in the world, which is to govern the matter.

Legal Thoughts towards Private International Law

There are two thoughts;

The first legal thought maintains that conflict of laws has its norms which are uniform,
universal and obligatory for all states. This gives rise to multitudo legume ius unum i.e.
where there is multiplicity of laws, there is one law to unify them. This school is called
UNIVERSALISM in conflict of laws. The pacta sunte servanda aspect in public
international law is applicable.

The second school maintains that each state creates its own unique norms of conflict of
laws through its own policy. This thought is called PARTICULARISM in conflict of laws.
There is no comity of nations under this school. Each sovereign state has power only to
legislate in its own state so has no power of extraterritoriality application. There is no
comity of nations, so cannot apply pacta sunte servanda.

And there are two major divisions in private international law. One is private
international law stricto sensu which comprises of conflict of law rules which determine
the law of which a country applies to a specific relation.

The second division consists of conflict of law rules and material legal norms which
have direct extraterritorial character and are imperatively applied usually relating real
property, consumer law currency control regulations, insurance and banking relations.
This is private international law sensu stricto.

Historical Development of Private International Law

Private international law has a long tradition in legal systems.  Cross-border movements
of persons and goods, typically in commerce, have been with us for millennia and are
the primary catalysts of private disputes involving foreign elements.  Such disputes
require some form of private international law rules, however crude, to be resolved. 
The origins of private international law thus can be traced to ancient Greece and Rome,
and the discipline flourished in Europe during the middle Ages. With the huge increase
in international trade and other, less commercial, interactions between citizens (e.g.,
marriages between persons of different nationalities) across the globe during the last

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century, private international law has developed into an indispensable component of the
legal apparatus of each nation.

Trade or commerce is the catalyst for the development of private international law. It
was inevitable that the trader across the boarders would occasionally suffer from
inability to obtain redress in respect of the transaction effected across these boarders.
For English traders for example, after they extended their commercial activities beyond
the seas, a remedy ultimately became available to them in the Court of Admiralty which
extended its jurisdiction to foreign cases as early as the middle of the 14 th century.4 By
the mid of 16th century this court was competent to try disputes arising out of the
mercantile dealings abroad. Sack contends that the court of Admiralty had no
developed choice of law rules; they adopted the general merchant laws.

Thus; a problem of choice of law arose by that time. Countries were willing to recognize
foreign law but were reluctant to entertain actions in which the cognizance would be
necessary.

Conflict of laws is also traceable from the Roman Jurisprudence, where parties from the
foreign countries would go to a praetor perigrimus in Rome and would plead the case.
A praetor perigrimus would adopt the law applicable to non Romans. This law was
known as Res Gentium as opposed to Jus Civile i.e. Roman law.

In Tanzania, commercial contacts started along the coasts especially by Arabs, Indians
and Portuguese. It is believed that these societies had commercial disputes as well and
the means of solving them. They were also established trade routes amongst African
societies like the Nyamwezi society, Kigoma, Hehe etc. who developed merchant laws
to resolve trade disputes with foreign elements. In this case every society regarded
itself as having territorial jurisdiction within its boundaries. For example, the Hehe
under Chief Mkwawa used to tax those who used their gates for trade like the Germans.

However, in 1921, in East Africa [Kenya, Tanzania, Zanzibar and Uganda, and Malawi as
well in 1922] was introduced the law to that effect by colonial government i.e. The
Judgments Extension (Ordinance) Act CAP 7 R.E 2002. This law is still applicable along
side with the Reciprocal Enforcement of Foreign Judgments Act, CAP 8 R.E 2002.
Another law that extends enforcement of foreign decree or awards in Tanzania is the
Arbitration Act, CAP 15 R.E 2002.

The modern Private International Law generally is traced from northern Italy in the
towns of Genoa, Piza and Venis. There was a need to adjudicate the commercial
matters; a theory of statuta was developed. The statuta were of two types namely
statuta personalia (dealt with human traders) and statuta realia (dealt with property).

4
See Sack, Conflict of Laws in the History of English Law, in law: A Century Progress, 1835-1935 Vol III, Pp 342-454.

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The modern field of conflict of laws emerged in USA in the 19 th c by C. J. Story and in
England by A. V. Dicey. Most of the common law countries trace the conflict of laws
from the words of Story and Dicey.

Sources of Private International Law /Unification

A fully articulated private international law regime for intellectual property has not been
established at the international level, there exists a body of unified private international
law in other areas of the law.  The ensuing paragraphs provide a brief overview of the
most important private international law instruments at the global and regional levels. 
It must be recognized, however, that, with the possible exception of the situation in
Europe in respect of the jurisdiction and enforcement of judgments, the level of
unification attained is relatively modest and that, consequently, private international law
is still first and foremost a matter of municipal law.

The principal source of private international law rules at the multilateral level is the
Hague Conference on Private International Law.  The Hague Conference is an
intergovernmental organization the purpose of which is "to work for the progressive
unification of the rules of private international law. While the First Session of the Hague
Conference was held in 1893, the organization only became a permanent
intergovernmental organization with the adoption of its Statute, which entered into
force in 1955.  The Hague Conference currently has 62 Member States. 

Many multilateral treaties on private international law have been concluded under the
auspices of the Hague Conference. Most of these conventions concern questions of
jurisdiction, recognition of judgments and of other official acts, or applicable law. 
Typically, the scope of the Hague conventions are highly focused and restricted to
certain specific topics, such as questions of marital status, adoption, certain aspects of
civil procedure and the international sale of goods.  Only a few of the conventions are
of more general application and, among those, figures the Convention of February 1,
1971 on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters, which is in force, but only has three Member States (Cyprus,
Netherlands and Portugal) and one Non-Member State (Kuwait). 

In 1992, discussions began at the Hague Conference, at the request of the United
States of America, to explore the possibility of establishing a new multilateral
instrument on the recognition and enforcement of judgments.  Several drafts of such
new proposed treaty, entitled Convention on Jurisdiction and Foreign Judgments in Civil
and Commercial Matters (the "draft Hague Convention") have been tabled and it has
been envisaged that a number of its provisions would be devoted specifically to
intellectual property.  Negotiations have been difficult and slow, and it is unclear at this
stage whether the Convention ultimately will see the light of day.  The provisions of the
draft Convention concerning intellectual property nonetheless have received much
attention and are therefore discussed in more detail below.

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There also exist many private international law instruments at the regional level.  In
Europe, the most notable include the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters of September 27, 1968
(Brussels Convention), the Lugano Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters of September 16, 1988 (Lugano
Convention), and the EC Convention on the Law Applicable to Contractual Obligations of
June 19, 1980 (Rome Convention).  The Brussels Convention recently has been
replaced by Council Regulation (EC) No. 44/2001 of December 22, 2000 on Jurisdiction
and the Recognition and Enforcement of Judgments in Civil and Commercial Matters,
which entered into effect on March 1, 2002 (Brussels II). The Brussels Regulation and
the Lugano Convention contain a number of provisions which are relevant to intellectual
property and which are also discussed in more detail below.

Regional agreements concerning private international law also exist in other regions
than Europe.  Important work in the area concerned has been achieved in Latin
America and includes the Treaties of Montevideo of January 11, 1889 and March 19,
1940, as well as the Bustamante Code of Private International Law of February 20,
1928, a code consisting of 437 different articles.  Next to these regional treaties, certain
countries have concluded bilateral treaties dealing with certain private international law
issues that might arise between them.

Stages of Conflict of Law Case

To the outside observer, a conflict of law case can come across as quite boring. There
is a lot of procedural talk and enough jargon to put anyone other than a law fanatic to
sleep faster than even the best sleeping pills, but a good conflict of law case can often
create a delicate ballet where a court must decide on which states’ laws take prescience
in a certain case. Without even knowing it, a court can be creating their own
precedents that will be used to determine similar cases for years or even decades to
come. Let’s take a look at the general format used by most conflict of laws cases in the
United States.

First, the court of law in question must decide if they are even entitled to hear the case
that has been presented in front of them. The big question that most courts have to
decide is if they are more likely or less likely to give a favorable ruling to one party or
another. The common practice of forum shopping has created a court system where
cases are often moved from one area to another for no other reason than either the
prosecution or the defense believes that they are more likely to get a ruling in their
favor in that courtroom. If the court finds that no legitimate forum shopping or at least
no forum shopping of any consequence has happened, than the case can proceed to
the next step.

Next, the court is going to have to break down the key components of the case and
decide which legal categories they belong to. This is known as characterization, and it

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can be quite the lengthy process. Since the jurisdiction that the case is being heard in
might not have a particular law that was violated, the court then has to interpret and
decide how this case broke a law in another jurisdiction that is claiming some sort of
right in the case.

Once the case has been broken down into pieces that are more easily handled by the
court, the court must then apply the various choice of law rules to each section so that
the court can then try the case. There are a half dozen or so different ways in which a
court can decide which states’ laws apply for each category. This part of the case can
also take a significant amount of time as both lawyers will argue passionately that each
individual section of the case should be interpreted in favor of their client and not the
other side. It can be a bit ironic to watch a lawyer argue for a law to be interpreted one
way on a Monday and then have it interpreted in exactly the opposite way later in the
week when a second client would benefit from a different ruling, but that’s the
American court system.

These are the stages in a nutshell:

I. Once the ground rules have been laid down, the case proceeds as normal,
and it is tried. The final part of the system includes getting recognition
from courts in other jurisdictions to honor the ruling. The court must first
decide whether it has jurisdiction and, if so, whether it is the appropriate
venue given the problem of forum shopping.
II. The next step is the characterization of the cause of action into its
component legal categories which may sometimes involve an incidental
question (also note the distinction between procedural and substantive
laws).
III. Each legal category has one or more choice of law rules to determine
which of the competing laws should be applied to each issue. A key
element in this may be the rules on renvoi.
IV. Once it has been decided which laws to apply, those laws must be proved
before the forum court and applied to reach a judgment.
V. The successful party must then enforce the judgment which will first
involve the task of securing cross-border recognition of the judgment.

Characterization in Private International Law

In Conflict of Laws, characterization is the second stage in the procedure to resolve a

lawsuit involving a foreign law element. This process is described in English law as
classification and as qualification in French law. In those cases where a different result
would be achieved depending on which of several possibly relevant laws is applied, this
stage of the process reveals the relevant rule for the choice of law but it is not
necessarily a simple process. The first stage is for the court to determine whether it has
jurisdiction, where appropriate confronting the problem of forum shopping.

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Before the correct connecting factor can be determined we need to know into which
legal category the facts of the case, or the particular issues, are properly placed.

Illustrations

Suppose that a person takes a ticket in London for a train journey to Edinburgh, and is
injured in a railway accident in Scotland. Is his cause of action against the railway
company for breach of contract, in which case English law may apply, as the law
governing the contract, or for tort, in which case Scots law will apply?

CONTRACT: ticket bought under English law, the English law will apply for breach of
contract. The category is contract.

TORT: Scottish law will apply, tort chosen as a category because of the accident in
Scottish.

The categories you choose determine the law to use and exclude other laws.

For example; a French man under the age of 21 marries an English woman in England
without the consent of his parents as required under the French laws. The English and
the French laws both agree that the formalities of marriage are governed by the law of
the place of celebration i.e. English law in this case, and that the husband must have
capacity to marry by his personal law i.e. French law.

Is it now the case of formality or capacity, is what we call characterization in private

international law.

French law applies in the category of capacity while English law is applicable in the
category of formalities.

If the same case will adopt different analysis, is the French rule to be characterized as
one dealing with formalities or with capacity?

Choice of Law Rules

Courts faced with a choice of law issue have a two-stage process:

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The court will apply the law of the forum (lex fori) to all procedural matters (including,
self-evidently, the choice of law rules); and

It counts the factors that connect or link the legal issues to the laws of potentially
relevant states and applies the laws that have the greatest connection, e.g. the law of
nationality (lex patriae) or domicile (lex domicilii) will define legal status and capacity,
the law of the state in which land is situated ( lex situs) will be applied to determine all
questions of title, the law of the place where a transaction physically takes place or of
the occurrence that gave rise to the litigation ( lex loci actus) will often be the
controlling law selected when the matter is substantive, but the proper law has become
a more common choice.

Private International and Public International Law

Public International Law is broadly the law regulating the relationship between (a)
governmental entities (e.g. governments or government bodies) and other international
bodies (e.g. the UN or the Commonwealth) and (b) other entities (whether
governmental, non-governmental, public or otherwise). This is truly international insofar
as it will mainly be concerned with international treaties and their interpretation (so for
example, the interpretation of a South African/UK treaty, UN sanctions, etc). Private
International Law (also referred to as the Conflict of Laws) is broadly the law of a
particular jurisdiction (e.g. English law or New York law) which regulates how a legal
issue including a foreign element would be treated. Common examples include the
recognition of marriages between nationals of different countries, or claims (whether
tortuous or contractual) between nationals of different countries. So for example, would
a marriage carried out in Korean between a US national and a Russian national be
recognized in Saudi Arabia? This would raise issues of Korean, US, Russian and Saudi
law.
However, the two courses relate in some cases. Some principles of law such as
requirements of natural justice are common to both; some rules of private international
law, as for example the common law doctrine of the proper law of a contract, have
been adopted by a court in the settlement of a dispute between sovereign states;
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equally some rules of public international law are applied by the forums when hearing a
case containing a foreign element.

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