LAW5704 Private International Law — Unit 1: Introduction

Unit 1: Introduction

1.1 Meaning, Function, Nature and Scope of Private International Law

The meaning (the conflict-of-laws’ classic-name): the private-cross-border-dispute’s three-questions (the exam’s-trio): (1) the jurisdiction (which court hears (the U2)); (2) the choice-of-law (which country’s law applies (the U3’s-connecting-factors’-and-the-units’-substantive-choices)); (3) the recognition-and-enforcement (the foreign-judgment’s-life (the U8)). The function: the multi-system-world’s-coordination (the legal-order’s-collision-resolution (the “conflict” resolved-not-fought)); the fairness-for-the-party (the unpredictable-law’s-avoidance (the certainty’s-service)). The nature (the debate): the international-or-the-national (the each-state’s-own (the no-supranational-conflict-law (the treaty’s-exception)); the “private” (the parties-private (the public-international’s-states-vs (the 1.4’s-comparison))). The scope: the persons (the nationality-domicile (the U4)); the family (the U5); the obligations (the U6); the property (the U7); the procedure’s-border (the U2-U8).

1.2 Origin of Private International Law

1. The statutes’-theory (the Bartolus’s-world): the 14th-century-Italy (the city-states’-statutes (the statuta-personalia-vs-realia (the person’s-and-the-thing’s-statutes (the territory’s-first-lines)))); the glossators’-and-the-commentators’ craft.
2. The nationality’s-turn (the Story-and-the-Savigny): the 19th-century’s-systems (the Story’s-American-comity (the Holland-type-respect (the courtesy-not-obligation)); the Savigny’s-scientific (the legal-relationship’s-seat (the system’s-search (the connecting-factor’s-idea-birth)))); the Mancini’s-nationality (the person’s-law (the civil-law’s-love (the code’s-codifications’ 1804-BGB-type-era))).
3. The common-law’s-line: the English-development (the Scottish-influence (the Dicey-and-Cheshire-era’s-consolidation (the case-law’s-accumulation (the forum-law’s-method (the renvoi’s-and-characterisation’s-doctrine-build))))).
4. The modern’s-era: the American-revolution (the Brainerd-Currie’s-governmental-interest (the “conflicts-revolution” (the policy’s-and-the-interest’s-analysis))); the European-codification (the Rome-I-and-II (the EU’s-regulations’ unification)); the Hague’s-machinery (the 1.3’s-unification).

1.3 Unification of Private International Law and Role of International Organizations and Regional Organizations

1. The Hague Conference (the star-player): the 1893-founding (the permanent-bureau (the 1951-statute); the instruments (the service-and-evidence (the LAW5601-U2’s-faces (the Nepal’s-non-party-record)); the child’s-family (the abduction-1980; the adoption-1993; the maintenance-2007); the obligations-and-the-judgments (the choice-of-court-2005; the judgments-2019)); the convention’s-method (the uniform-rules (the ratification’s-menu)).
2. The UNIDROIT (the substantive’s-route): the commercial’s-unification (the CISG-1980 (the trade-course’s-face (the LAW5602-U’s-companion))); the substantive-law’s-unification-as-the-conflict’s-avoidance (the “no-conflict-if-one-law”).
3. The regional-organisations: the EU (the regulations’-world (the Brussels-I’s-jurisdiction-and-enforcement (the Rome’s-choice (the one-market’s-machine))); the OHADA (the African-Commercial’s (the uniform-acts)); the Mercosur’s-and-the-ASEAN’s-faces (the regional’s-weaker-versions).
4. The unification’s-methods’ (the exam’s-list): the convention (the binding (the slow)); the model-law (the soft (the UNCITRAL’s-pace)); the principle’s-and-the-restatement (the scholarly (the UNIDROIT-principles’ face)); the critique (the diversity’s-persistence (the national-interest’s (the unification-vs-the-identity))).

1.4 Comparison between Public and Private International Law

1.5 Introduction to Nepalese Private International Law

1.5.1 Sources and Development of Nepalese Private International Law

1. The statutory’s-scattered-core: the Muluki-Civil-Code-2074’s-closing-chapter (the foreign-law’s-provisions (the conflict’s-codification (the 1.5.2’s-features))); the CPC-2074’s-jurisdiction-faces (the foreign-defendant’s-sue (the U2.4’s)); the Evidence-Act-2031’s-foreign-law-proof (the LAW5601-U’s-companion); the arbitration’s (the Arbitration-Act-2055’s-foreign-award (the NY-Convention’s-implementer)).
2. The case-law’s-line: the Minadevi-era’s-judgments (the foreign-decree’s-recognition (the U8’s-cases)); the immigration-and-the-family-line (the Maria-Victoria-and-the-later (the U2-U5’s)).
3. The treaty’s-layer: the NY-Convention-1988-party (the verified-record (the LAW5602-U’s)); the DTAs’-faces (the tax’s-conflict-avoidance (the LAW5608-U2’s)); the non-party’s-gaps (the Hague’s-absence (the service-evidence-child-abduction (the verified-LAW5601-record’s-echo))).
4. The development’s-story: the pre-2074-scatter (the Muluki-Ain’s-era’s-foreign-faces (the 1854’s-world-marginal)); the 2074’s-codification-step (the Civil-Code’s-chapter (the modernising-moment)); the globalisation’s-pressure (the migration-and-the-remittance’s (the family’s-and-the-employment’s-cross-border-explosion (the demand’s-driver))).

1.5.2 Codification of Nepalese Private International Law: Its Features and Challenges

The features: the Civil-Code’s-chapter (the first-comprehensive (the foreign-judgment’s-conditions (the applicable-law’s-rules’ faces (the marriage-property-obligations’ touches)))); the compact (the general-and-the-specific (the pragmatic-not-the-encyclopedic)); the common-and-the-civil-blend (the India’s-and-the-England’s-influence (the diaspora’s-law-world (the cite-and-compare tradition))). The challenges (the exam’s-critique): the thinness (the rules’-brevity (the gaps’-judicial-fill (the doctrine’s-absence (the no-textbook-tradition (the Garimella’s-South-Asian-practice’s-note)))); the institutional (the courts’-capacity (the foreign-law’s-proof (the translation’s-and-the-expertise’s)); the policy’s-coherence (the immigration-family-commercial-silos (the one-frame’s-need)); the treaty’s-gap (the Hague’s-non-engagement (the bilateral’s-absence ( the enforcement’s-reciprocity-void))).

Model Questions

1. What is Private International Law? Explain its nature and scope. (10)
2. Trace the origin of conflict of laws. (10)
3. Compare public and private international law. (10)
4. Discuss the sources and codification of Nepalese private international law. (15)
5. Short notes: (a) Savigny’s seat; (b) Hague Conference; (c) Statuta realia; (d) CISG route. (4×5)

📚 Get the complete notes: Download the full Private International Law PDF (all units) — Law Info Nepal Original Notes Series.