Role and Function of Private International Law Essay Example

precise associations. The other category is that of private international law ‘sensu lato’ that encompasses private international law ‘sensu stricto’ and lawful standards which contain express extraterritorial quality and are necessary applied. Such rules consist of laws on real chattels, end user law, exchange rate policies, insurance firms, and banking industry rules among others.

The birth of private international law has its roots in the Roman law, however, the contemporary origin of private international law is said to have manifested itself widely in Northern Italy at around 16th century and was first applied in towns like Piza and Venice. There was greater need to pass judgment on relevant problems surrounding business undertakings among traders that originated from different sovereign countries which later this issue turned to the emergence of the famous theory of ‘statuta’ whereby some of the city rules and regulations were viewed to be ‘statuta personalia’. This meant that certain laws were only applied in some cities only and did not applied universally.

The nature of conflict of laws varies according to various researchers. There is an argument by one faction called the universalism that conflict of laws is a component of international law and they have supported their assertion that this group of law is consistent, widespread, and mandatory in all nations. The other group referred to as particularlism asserts that each and every nation has to enact its own rules and regulations of conflict of laws. According to the general knowledge of common law structures, private international laws or conflict of laws is mainly concerned with identification of any projected discussion and whether that body has power to give a ruling and if

it is the proper venue for handling the disagreement at hand. Also private international law has the responsibility of identifying various laws of different nations that can be used in solving the cases at hand. Also private international law or commonly known as conflict of laws has the role or function to put into effect foreign rulings involved made in solving disputes.

The respective courts of laws have the function of choosing law rules that apply to solving cases of private international law. The choice of such laws to be applied follow the two processes below; the first process is that the court of law will consider using the law of forum called “lex fon” to all technical themes and the second process is the court considers the features that bond the lawful topics to the laws of potentially pertinent countries and use the rules and regulations that have maximum link.

In this contemporary world, globalization has become the way of carrying out business transactions and this has led to shifting of factors of production from one country to another for example, movement of working capital and labor. This activity in turn because of its uncertainty and ambiguity has led to many disagreements between countries involved and has led to calling of formation and enforcement of global standards.

According to research private international law as applied in universal law structures is mainly concerned with identifying if the anticipated medium have jurisdiction to give a ruling and if it is a suitable setting for solving any dispute that may have come up as a result of international relations between private persons. Also private international law has the responsibility of

identifying the state rules and regulations that should be used in solving many cases that may arise as a result of international relations. Private international law also has the function of ensuring that any foreign judgments that comes up as result of international interactions between private persons are imposed or enforced in an equitable manner when need arises to do so.

Phases in common Conflict cases:

There are five stages that are involved in solving cases of conflict disputes between private parties.

•  The first stage is that the court of law should make a decision whether it has power to solve the case brought before it and if so it should identify suitable ways for solving the problem.
•  The second stage is that of characterization which involves identifying the best cause of action that is part of the already existing laws regarding private international law.
•  The third stage is the decision of what laws to be applied to such conflicts. The decisions are usually made by any legal bodies that are involved in conflict cases.
•  The fourth step is that of the laws and rules chosen should be proved and the respective judges should apply in making their judgments.
•  The fifth stage is that of put into effect the judgment arrived at. This will entails considering cross-border recognition of the passed judgment.

However, there are some countries which lack good and applicable set of conflict laws or regulations and they mostly depend on there present local regulations that can be applied in private international law.

Private international law is very crucial topic to all and especially to those individuals who are interested in political, economic, and social dimensions in

their various undertakings. It is a very interesting topic when it comes to social dimension in the society. For example, the conflict of law regulations in matrimonial cases and especially the issue of divorce cases are best explained under private international law. In an event of divorce and the court is faced with decision of distributing marital property the court usually uses its domestic laws usually called “lex fori” laws. This however, applies to cases where both the couples filling divorce are local and the property in questioned to be divided is also local. It will be cumbersome for judges to make decisions regarding to this division of property if any element of foreign dealing is involved for example if the couple’s nationality are not the same and there area of residence is different.

Usually cases where one couple bring into play the appliance of foreign rules, the entire process of concluding the case in question either slug down or bring new complications. It is evident that because of such complications it will be very difficult to reach on a viable conclusion because of the new elements brought in by the incorporated foreign rules. Legal formalities are involved in solving such cases that includes; call for witnesses, notarization, and the required forms of acknowledgement that usually filed by the respective domestic courts among others.

With regard to economic relations that involve business agreements there are no legal regulations to be observed by the aggrieved parties. However, the court must consider the different foreign laws of both aggrieved parties before making a decision. For example prove of no oppression and fairness is always considered before terminating any existing

contract between two parties that are not contented with their own performances in carrying their respective duties.

Usually business contracts that are entered into by two individuals of different countries provides for a jurisdiction or an arbitration clause that outline the aggrieve parties choice of venue for any litigation that may be filed in the court of law. Under private international law there is a clause that deals with choice of regulations which usually outlines the appropriate set of laws to be applied by the relevant courts of law in solving any pending disputes. Private international law presents an opportunity to the aggrieved parties to choose the most suitable regulations that they deem to be relevant to their transaction in question.

However, this aspect of judicial recognition of prejudiced target does not perform to the required standard. Trade Unions be it internal or international, are said to be operating under the provisions of law, whereby they are well known to be applying the legal contractual practices which commands that every person who is said to be joining the trade union is said to be under a seal of agreement with other members of the union, and in any case, if a member breaches the contract, then the other members are given the mandatory to sue the particular individual.

With regards to political connection the status of any foreign law is very important concept that should be understood. It is always very difficult for a court of law to apply any foreign law in solving cases because it requires that foreign law expertise must prove the application of such laws to be acceptable and viable if used. Always the

application of foreign evidence in courts is usually regarded to be evidence of the case in question and that foreign policy can only facilitate judgments but it is not used entirely to make decisions. This is because such foreign laws are applied putting into consideration the issue of sovereignty of the aggrieved parties.

Law governs democracy and where there is leadership without upholding the rule of law then democracy does not exist. For example, various unions or parties in a country support a culture of independent practices and they have been able to grant say to both the employment and common aspirations of their associations, also parties or unions have avoided the mark of corruption in their day to day activities thus performing their work perfectly. Such laws are formulated with respect to other laws of sovereign countries.

Government policies are put in place depending on the existing laws in every State. Persons in authority are responsible for coming up with rules and regulations that will not contradict the laws of a country as well as the laws of other sovereign states. Under this, we find that the countries law does not cover the regulating of the affairs of these international laws. This clearly indicates that there is a division between the political relations and the courts thus abandoning the responsibility to the courts to fill the gap between the two departments, this proves that there is no democracy applied in such a situation.

There is an issue when it comes to private international law especially with particular regards to solving cases of disputes that arise because of clear misunderstanding by the aggrieved parties. It is viewed that

universal private international laws should be applied when it comes to solving such conflicts. This implies that if universal rule of private international laws are enacted there will be great possibility of achieving justice, equity, and fairness when passing judgments related to private international law.

For example, the aggrieved parties may get an opportunity to know their verdicts within a reasonable time because when universal laws are applied it will imply that the judges will not have to consider the rules and regulations of various sovereign states when handling disputes unless if it is required to do so in some exempted clauses which will be provided. To achieve this, a universal body can be established that will handle only cases of such private international disputes thus avoiding unfairness and long delays that is usually involved in the process.

Conflict of jurisdiction procedures need to be clearly understood and especially in particular regard to international aspect. This is because private international laws provide a structure within which states can come together and interact with each other. Jurisdiction is argued to be a political concern because there have been several legal bodies that have been formed in order to solve disputes and cases that relates to conflict of laws or private international laws. This is evidenced in the aspects of understanding countries that there are sovereign and they have there own rules and regulations. However, the creation of courts and other relevant bodies to handle the issues that arise because of disputes as a result of conflicts of laws; there has been great difficulty in handling and organizing actions within those bodies. This is because different countries are deemed

to be sovereign and have there own rules and regulations and usually the international courts and other bodies formed are said to be subsidiaries of respective national courts and justice systems. This makes solving of disputes that involves private persons more cumbersome and thus there is inefficiency and ineffectiveness within the international bodies.

A good structure to adopt in private of international law is that of jade’s law which is always deemed to be fit to global world and especially in handling cases of private persons of different countries. A good example is that of UN which emphasize the advantage of upholding lawful bodies with authority and power over a broad array of topics of importance to nations. This structure will present an opportunity to private parties involved the opportunity to be heard without prejudice. This parties involved will always accept the verdicts of private international courts with ease and confidence as compared to rulings made by national courts or tribunals. This is because one private person can be favored by the court of law if is situated in its country of origin thus leaving the other party unsatisfied and unhappy with the outcome of the dispute ruling.