PRIVATE INTERNATIONAL LAW

UNIT 1
THE HISTORICAL DEVELOPMENT OF PRIVATE INTERNATIONAL LAW
AIM

To enable you to acquire knowledge and understanding of the evolution of private

international law - from the early Greek model to present day regional and global
efforts aimed at the progressive harmonisation of rules of private international law.
LEARNING OUTCOMES

By the end of the seminar you will be expected to:

1.
2.
3.
4.

Be able to outline the chronological history of the development of private

international law.
Identify key dates and milestones from the historical process and be able
to explain their significance.
Identify and explain efforts aimed at regional or global unification of the
rules of private international law and their practical implications.
Critically explain the rationale for the progressive harmonisation of the
rules of private international law.

READING
Cheshire, North and Fawcett, Private International Law, Chapters 1 and 2.
HE Yntema, The Historical Bases of Private International Law, (1958) 2 American
Journal of Comparative Law, 297.
Introduction
Although the syllabus for this module will focus mainly on the rules of private
international law as applied by English courts, it is worth noting that the practice of
Conflict of laws rules in the modern era dates as far back as the early middle ages.
In fact the roots of private international law can be traced to early Greek and Roman
judicial practises in which the courts were always ready to accord recognition to any
foreign element or aspect of a case and to treat such cases differently from purely
internal or local disputes. The theoretical development of private international law as
an academic subject took place much later, with the American jurist Joseph Storey
now generally credited with having invented the name private international law in
the early part of the nineteenth century.
BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 1 of 5

Early History of the Conflict of Laws

a) The Greek Foundations of the Conflict of Laws
The roots of private international law can be traced to ancient Greece. Judges in
ancient Greece were frequently called upon to adjudicate on disputes with a
multistate or foreign dimension. The foreign element of the dispute might involve the
fact that one of the parties was not a Greek citizen; or the transaction or actions
which led to the dispute may have taken place outside the territorial limits of the
Greek state. The approach of the Greek courts to cases falling within these
categories was not to create rules which could be used for determining the choice of
applicable law or appropriate forum but rather to create specialised courts to
adjudicate on such international cases - in some instances applying domestic Greek
law. The application of local law to Greek citizens and non-citizens alike was justified
on the grounds that Greek law was available to everyone and that all were equal
before the law. This approach was in some ways similar to modern arbitration
practice based on a pre-determined national system or choice of law.
b) The Roman Approach to Conflicts of Laws
The system of dealing with cases containing a foreign element practised by ancient
Greek judges was taken a step further under the Roman legal system. The Romans
evolved two main branches of Roman law; to wit, the Roman jus civile which applied
only to Roman citizens; and the jus gentium, which applied to non-citizens.
Specialised tribunals (staffed by officers known as the praetor peregrini) were set up
to administer the jus gentium. When adjudicating cases involving a foreign element
the remit of the praetor peregrini did not extend as far as trying to establish the
applicable law. Instead, a flexible body of law based on recognisable international
norms (the jus gentium) was applied to such cases to endeavour to find a
substantive solution to the dispute. The praetor peregrini in effect created new
substantive rules to apply to each case. This in turn led to the progressive
development of a substantive body of principles which applied to particular areas of
law (e.g. commercial transactions, property, marriage, etc). Some aspects of the jus
gentium were later to evolve into what is now public international law.
ACTIVITY 1
1. Make a list of the various sources of private international law and briefly
explain the relevance of each source to a judicial process involving a conflict
of laws.
2. Identify and explain three factors which distinguish private international law
from public international law. Can you think of any similarities between private
international law and public international law?
3. Write a short critique (around 500 words) of the approach taken by early
Greek and Roman courts to the adjudication of disputes in which there was a
foreign element and explain the difference between these early approaches
and the prevailing practice of modern courts.

BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 2 of 5

Later Developments
In the middle ages Islamic jurists developed various aspects of private international
law as part of Islamic jurisprudence. Islamic rules of private international law were
established to govern issues such as succession, property, family and contractual
disputes. These developments also extended to legal procedures and matters
regarding jurisdiction. The effect of this was to accommodate within Islamic
jurisprudence legal rules and procedures of other religions and jurisdictions which
were not Islamic if there was a foreign element to a particular dispute.
Meanwhile in northern Italy during the late Middle Ages increasing interaction
between merchants from different cities gave rise to commercial and trade disputes
which could only be resolved through recourse to some form of Conflict of Laws
rules. It was for this reason that the judicial concepts of statuta personalia and
statuta realia were formulated at this point in time. Under the former, the local laws of
a city became attached to and followed the individual wherever they went (a sort of
lex patriae or lex domicilii). The statuta realia, on the other hand, involved the
application of the laws of the city in which goods or property (res) which formed the
subject matter of a dispute were located (i.e. the modern equivalent of lex rei sitae).
The Italian model is now generally considered to be the precursor to present-day
Conflict of Laws.
Later developments in England revolved around the general law merchant and
general law maritime. The mercantile principles underpinning both systems of law
were evolved specifically for inter-state and sea-borne commerce and included, for
instance, special trade terms, the enforcement of international contracts, rules
governing the carriage of goods by sea, and the protection of shipwrecked sailors
and shipwrecked property (rules on salvage). Disputes were dealt through a system
of specialised courts (Admiralty) often with no recourse to selecting an appropriate
choice of law. Rather the principles and precedents of the general law merchant and
general law maritime were applied to all cases. This notwithstanding, both the
general law merchant and the general law maritime were ultimately to play an
important role in the development of the rules and principles of English private
international law.
The conflict of laws rules developed in England were subsequently exported to other
Commonwealth countries. In the USA the emergence of the Conflict of laws can be
traced to the early part of the nineteenth century with the publication by Joseph
Storey of his book Conflict of Laws in 1834.
ACTIVITY 2
4. It has been said that the development of the general law merchant and the
general law maritime were obstacles to the early development of private
international law in England.
Critically evaluate this statement in the light of the modern rules and
contemporary practice of private international law in England.

BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 3 of 5

Efforts aimed at the harmonisation of the rules and practice of Private

International Law
The lack of unanimity, and absence of uniformity, in the application of the rules of
private international law has always been a cause for concern, given that the
multiplicity and diversity of legal systems and rules could engender rather than
prevent a conflict of laws. It is for this reason that the harmonisation of the rules and
practise of private international law has been a long standing aspiration. The earliest
endeavour can be traced back to 1873 with the founding in Brussels of the
International Law Association (ILA). The ILA was a non-governmental association
made up of jurists and legal experts and dedicated to the study, dissemination and
advancement of private international law.
In 1889 it put together a committee of exports tasked with preparing a draft
convention on the harmonisation of the rules of private international law. These
efforts culminated five years later in the calling of the Hague Conference on Private
International Law in 1893, an inter-governmental initiative whose stated aim was to
work for and to promote the progressive unification of the rules of private
international law. The work of the ILA and other organisations such as UNIDROIT
and UNCITRAL has led to the drafting and adoption of a large number of
conventions such as the various Hague Convention on the Law Applicable to
Contracts for the International Sale of Goods (1955 and 1986); Convention on Civil
Procedure (1951); Convention on Recognition of Divorces and Legal Separation
(1970); Convention on Choice of Court Agreement (2005) and the Lugano
Convention on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (1988).
The Lugano Convention will be examined in more depth as part of Unit 5.

ACTIVITY 3
5. Visit the website www.ila-hq.org and find out some basic information about the
International Law Association.
6. Explain the importance to private international law of the establishment of the
International Law Association in 1873.
7. Explain, with reference to specific examples, the rationale for the progressive
harmonisation of the rules of private international law

The European Perspective

One of the defining features of integration within the European Union has efforts
aimed at legal integration through the approximation of the laws of the various
member states. Although these efforts have mostly been directed at achieving
BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 4 of 5

economic and social integration across the EU, in the field of private international law
the Brussels Regime has as its main aim the harmonisation of conflict of laws rules
within the EU. The Brussels regime comprises of the Brussels I and Brussels II
regulations (together with relevant aspects of the Lugano Convention). The Brussels
regime applies in all member states and its interpretation is subject to the jurisdiction
of the European Court of Justice under Article 234 of the EC Treaty and not the
national courts of member states.
The Brussels I regulation deals with jurisdiction in contract and commercial disputes;
the Brussels II bis regulation, on the other hand, applies to jurisdiction in family
matters with the general grounds for exercising jurisdiction being either habitual
residence, nationality or domicile (Art 3 of Brussels II regulation). These regulations
will be discussed in more depth as part on Unit 7.
ACTIVITY 4
Read the article by Janys M Scott QC: Resolving the Problem of Jurisdiction in
Family Law Brussels II and Key Points published on the following website:
www.murraystable.com/article/resolving-the-problems-of-jurisdiction/
Also read the article by David Hudson: Brussels II Encore A Summary of Brussels
II bis on the following website: www.familylawweek.co.uk/
8. Briefly explain the contribution of the Brussels regime and the Lugano
Convention of 1988 to the progressive development of private international
law.
CONSOLIDATION OF LEARNING EXERCISES
9. Identify the key stages involved in the adjudication of a dispute in which the
court has identified a foreign element.
10. Explain the main functions of the lex fori within the private international law
judicial process.
11. Identify to which aspects of a private international law adjudication process
(procedural or substantive) these connecting factors apply:

Lex fori
Lex causae
Lex loci actus
Lex loci contractus
Lex patriae
Lex domicilii
Proper law of the contract

BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 5 of 5

BML0028
PRIVATE INTERNATIONAL LAW UNIT 1
Module Handbook 2010-2011
PIL VLE Blackboard Site

Page 6 of 5