What is Private International Law?

Beckett

Preliminaries
 Objective/goal is to build a consensus as to the limits of the subject (PrIL) using the existing
body of knowledge and not exactly to define the field as a legal science;

Two questions attempted to be answered relative to the goal:

1. Is there a system of rules of PrIL which, by the law of nations, it is already obligatory upon
states to apply?
2. What are the proper limits of the system of rules which can be described as PrIL?

First Question

 Argument which Becket started his examination: Principles of PrIL are principles which must
take their effect through the decision of the municipal courts of each country
 Becket proposed a test to determine the answer to first question based on the above principle:
o If a state can sue another state for deciding a case prejudicial to the national of the
claimant by rejecting a principle of the Conflict of Laws, then the answer to first query is
YES
 Von Bar, de Bustamante and other writers in their school of thought: NO/NONE
 Anglo Saxon Writers (Westlake, Dicey, Story Wheaton, Foote, Baty, etc): agreed but tend to
express their opinion as: “the place of international law is in the division of national law.”
o the only place where these principle are found in a form which can be called law is in the
various municipal systems.
 French writers impliedly agreed there is NONE but disagreed to the submission of the two
groups above, led by M. Pillet: Each law is regarded as an expression of the sovereign will
of the state whose law it is. [meaning it is not international law enacted through municipal
courts/municipal legislation, but it is municipal law itself]
 Beckett: Agreed there is NONE and noted that the obligatory feature of PrIL arises from the
sense of each state that it is bound towards the rest to treat their nationals in accordance with
these principles and central and essential feature is choice of law

Second Question

 Beckett: PrIL is limited by, and consist of, principles of private law which determine:
1. in what circumstances the courts of a country have jurisdiction to pronounce judgement;
and
2. the law which they must apply in deciding the different matters upon which they have
jurisdiction to pronounce judgment
 Beckett arrived at what he considers guideline by examining several concepts normally
included in PrIL although, he argued, should not be included.
 These two principles/guidelines crystallized after such examination of the following principles
he tagged as erroneously included under PrIL:
1. On nationality principle: there is no definitive rule and each state, within certain very wide
limits, is free to adopt what rules it pleases for its own nationality, and is consequently
excluded in PrIL
2. On status of Aliens: status of aliens has nothing to do with jurisdiction, and a question
which is decided exclusively with reference to the national law of each state, and such, is
outside the definition of PriL
3. On jurisdictional immunities of foreign sovereigns, public ships, or diplomatic
representatives (termed as “extraterritoriality”) –the whole basis is the privileged position
of the persons concerned, and in their international aspect, these privileges are secured
by the law of nations, of which they are a part. Hence, they are not part of PrIL
4. On Criminal law – more appropriately classified under PIL.