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Unit 1: Introduction
Syllabus coverage in this unit
1.1 Meaning and Nature of Private International Law · 1.2 Scope and Application · 1.3 Subject Matter · 1.4 Origin and Development · 1.5 Difference between Public and Private International Law · 1.6 Nepalese Experience on Private International Law Including Civil Code, 2074
1.1 Meaning and Nature of Private International Law
The meaning: the conflict of laws = the domestic law’s branch dealing with private-law cases containing a FOREIGN ELEMENT (the foreign party, the foreign situs, the foreign occurrence): which court (the jurisdiction), which law (the choice of law), which judgment (the recognition-and-enforcement) — the three questions of every conflict case. The nature (the classical debate): is it international law or domestic law? — the answer: a DOMESTIC law’s branch (each state’s own conflict rules; the “private international law” the misnomer retained (Manni’s classic: “a misnomer… it is private law”) beside the “conflict of laws” the truer name); the international sources’ growth (the treaties’ unification — the Hague Conventions’ family) modifying but not displacing the domestic character.
1.2 Scope and Application
The three questions (jurisdiction, choice of law, recognition-enforcement) + the incidental machinery (the characterization, the renvoi, the connecting factors, the public policy’s limbo) + the substantive fields (the family, the property, the obligations, the succession — Units 7-10).
1.3 Subject Matter
The foreign-element disputes: the cross-border marriage, the foreign-owned property, the international contract, the tort abroad, the foreign judgment — the private relations’ international faces.
1.4 Origin and Development
The lineage: the statutory-theory’s Italy (Bartolus’s glossators — the statutes’ territorial craft); the Dutch school (the comity — Huber’s doctrine); the codification era (Savigny’s system (the seat of legal relations) + Mancini’s nationality (the personal-law principle)); the national codes (the German EGBGB, the Swiss-and-Italian laws — the conflict codifications); the modern era (the American revolution (the interest analysis — the most-significant-relationship’s restatement); the EU’s Rome Regulations (the codified choice-of-law); the Hague Conference’s conventions; the current trends (the internet’s challenges, the party autonomy’s rise)).
1.5 Difference between Public and Private International Law
| Point | Public international law | Private international law |
|---|---|---|
| The parties | States (and international organisations) | Private persons |
| The source | Treaties, custom | Each state’s domestic law (plus treaties) |
| The question | The states’ rights-and-duties | The private dispute’s forum-and-law |
| The enforcement | International (reciprocity, the UN) | The national courts |
| The sanction’s face | Diplomatic, collective | The domestic judgment |
| The overlap | The treaty can govern the private case (the conventions) | The foreign state’s immunity (the public law’s entry) |
| ## 1.6 Nepalese Experience on Private International Law Including Civil Code, 2074 | ||
| The Nepali frame: no comprehensive conflict-code — the scattered provisions + the courts’ craft: the Civil Code 2074 (the Code’s private-international faces: the application provisions (the Code’s reach; the foreign elements’ treatment — the functional describe: the Code’s general part-and-the specific books’ cross-border faces)); the Muluki Civil Procedure Code 2074 (the jurisdiction’s rules (the court’s competence — the in rem-and-in personam bases) + the foreign judgments’ execution (Unit 6’s treatment)); the specific statutes’ conflict rules (the marriage-and-family faces; the contracts’ proper-law practice (the international contracts’ Nepal practice — the proper-law clauses)); the courts’ jurisprudence (the cross-border cases’ craft — the foreign marriages’ recognition, the foreign decrees’ enforcement, the foreign property’s disputes); the honest audit: the conflict-law’s embryonic state (the doctrine thin, the practice case-built — the exam’s Nepali essay). |
Exam Focus
- Long questions: (i) The meaning-nature-scope (the three questions — the banker); (ii) The public-vs-private comparison (the table); (iii) The Nepali experience (the Civil Code 2074-and-the courts’ craft).
- Short questions: the comity; Savigny vs Mancini; the foreign element.
- Trick areas: (i) PIL is a DOMESTIC law’s branch (the name’s misnomer) — the “international law” error; (ii) The THREE questions: jurisdiction + choice of law + recognition-enforcement (the incomplete list’s loss); (iii) Mancini = NATIONALITY (the personal law); Savigny = the SEAT of the relation — the pairing; (iv) Nepal has NO comprehensive conflict code — the scattered provisions + the courts’ craft.
Model Questions
- What is private international law? Explain its meaning, nature, scope and subject matter. (15)
- Distinguish public international law from private international law. (10)
- Explain the Nepalese experience of private international law with reference to the Civil Code 2074. (10)
- Short notes: (a) comity; (b) Savigny; (c) Mancini; (d) foreign element. (4×2.5)
📚 Get the complete notes: Download the full Private International Law PDF (all units) — Law Info Nepal Original Notes Series (LL.B., 3-Year New Course, 2076/077 B.S.).