1

The Issue of Unification in Modern Private International Law

Kondratenko O., student

Institute of International Relations Kyiv National Taras Shevchenko University, III

year, Department of International Law

Ukraine (Kyiv)

We live in the XXI century that appears to be a century of democracy, social welfare,
and economic prosperity but at the same time it is the time of wars, starvation and decay.
Why is it so? Life differs and mainly it occurs due to the historical reasons. But the only thing
that has existed during the whole history of humanity is law. It appeared as rules in Ancient
Greece and Rome and continues to exist and develop nowadays in the form of norms,
contracts, principles, and customs.

Law is an enforceable body of rules that govern any society. [1, p. 316] Talking about
it, the first thing to appear in person’s mind when hearing ‘law’ is law of a certain country. In
this case we mean law as a system of rules established by a country that dictate acceptable
behaviour in different areas of social life. [2, p. 60] Another side of a ‘law coin’ is
International Law. The system of International Law consists of two elements which are Public
International Law (also known as Law of Nations) and Private International Law (also known
as Conflicts of Laws). At the same time in order to prevent misunderstandings it should be
mentioned that according to the views of some scientists in the theory of law International law
in its meaning is equal to Public International Law (Law of Nations) that is considered to be
the system of law regulating the interrelationship of sovereign states and their rights and
duties with regard to one another. [1, p.293]

Conflict of Laws is the part of the national law of a country that establishes rules for
dealing with cases involving a foreign element. [1, p.424] Private International Law refers to
that part of the law that is administered between private citizens of different countries or is
concerned with the definition, regulation, and enforcement of rights in situations where both
the person in whom the right inheres and the person upon whom the obligation rests are
private citizens of different nations. [3] To put it in simpler words, the word 'private' indicates
 2

that it is the law dealing with the relations of individuals to each other, and the term
'international', that it deals with the laws of different nations. [4]

How odd it may seems to be, but Private International Law is different in various
countries as each country has its own law and order. When there are some legal relations
(which subjects belong to different countries) a following question arises: under law and order
of which country should these relations be governed? Thus appears a conflict. The most
popular example to explain the problem is that concerning the marriage. E.g. a man, a citizen
of the United Kingdom, and a woman, a citizen of Poland, get married. Will this marriage be
regulated under the law of the United Kingdom or Poland? This is exactly the question for
Private International Law to deal with. The main aim of Private International Law is to find
the solution from such situation of ambiguity in other words to find in which legal jurisdiction
a case is to be regulated.

During past decades the above mentioned problem has become a burning issue taking
into account the process of globalization and rapid development of interrelations among
countries and its citizens throughout the whole world. Private International Law rules are not
constant, they are developing and at the same time they are to be improved in order to meet
requirements of the dynamically altering social relations which fall within the sphere of
Conflict of Laws.

According to the results of theoretical and practical development of Conflict of Laws

there are two possible ways of legal regulation in this sphere: unification of internal laws and
unification of Private International Law.

Talking about the first way it appears to be less successful and effective than the second
one. The main reason for it is that the systems of common law and civil law have fundamental
and basic difference in its principles. Thus countries of different legal systems are not able to
cooperate well enough without any difficulties. Nevertheless there are some important
examples of unification of internal laws that are worth paying attention. First of all the
Warsaw Convention of 1929 (amended at The Hague, 1955) should be mentioned. It was
supplemented by the Guadalajara Convention, 1961, which makes the international carriage
of persons or goods by aircraft for reward subjects to uniform rules as regards both
jurisdiction and the law to be applied. This Convention has been made binding in England by
the Carriage by Air Act 1961. Another examples of the unification of internal laws are the
 3

Carriage of Good by Sea Act 1924, the Carriage of goods by Road Act 1965, the Carriage of
Passengers by Road Act 1974 etc. [5, p. 10]

The second method means the unification of the rules of Private International Law and
the guarantee that a case containing a foreign element will result in the same decision
irrespective of the country of its trial. [5, p. 11] First several attempts have been made in the
Hague Conference on Private International Law to reduce the number of topics on which the
rules for choice of law in different countries conflict. One of the most important steps was
taken in 1951 when it was decided to place the Hague Conference on a lasting footing by the
establishment of a permanent bureau. It was mentioned in a charter accepted by many
countries. Nowadays the Hague Conference on Private International Law is a global inter-
governmental organization which consists of 72 Members (71 states and the European Union)
representing all continents. An increasing number of non-Member States are also becoming
Parties to the Hague Conventions. As a result, the work of the Conference encompasses 130
countries around the world. The statutory mission of the Conference is to work for the
progressive unification of the rules of different legal systems. This involves finding
internationally-agreed approaches to issues such as jurisdiction of the courts, applicable law,
and the recognition and enforcement of judgments in a wide range of areas, from commercial
law and banking law to international civil procedure and from child protection to matters of
marriage and personal status. [6] Thus the mission of the organization is to be a forum for the
Member States for the development and implementation of common rules of Private
International Law. The organization directs its effort to coordinate relationships between
various private law systems in situations where a foreign element is present. Between 1951
and 2008 the Conference adopted more than 35 international conventions. An interesting fact
is that even when they are not ratified, the Conventions have an influence upon legal systems
in both Member and non-Member States. The most widely ratified Conventions deal with the
abolition of legalization, access to justice, international child abduction, intercountry
adoption, recognition of divorces etc. The most recent Conventions are the Convention on the
Law Applicable to Certain Rights in respect of Securities held with an Intermediary, 2006, the
Convention on Choice of Court Agreements, 2005, the Convention on the International
Recovery of Child Support and Other Forms of Family Maintenance together with the
Protocol on the Law Applicable to Maintenance Obligations, 2007. [7]
 4

These conventions also form a source of inspiration for efforts to unify Private
International Law at the regional level, for example within the Organization of American
States or the European Union. But at the same time, particularly for the EU, there is an
important and difficult balance to strike between securing regional harmonization of laws and
participating in projects which seek to bring about global harmonisation of laws. [5, p. 14]

To conclude, it is important to determine Private International Law (Conflict of Laws)

as a set of rules of law that define which court has jurisdiction and which law governs a given
legal dispute. The main aim of Conflict of laws is to regulate private legal relations containing
a foreign element. Private International Law is generally based on various national laws.
However, it also deals with treaties, legal guides, and a number of other international disputes.
The two possible ways to avoid conflicts among different legal systems while regulating
international private relations are the unification of internal laws and the unification of Private
International Law. Taking into consideration the great difference between civil and common
law the first method is inferior to the second one. The proof of it can also be the great quantity
of international conventions adopted by the Hague Conference and ratified by its Member
states. In any case unification turns out to be the only effective way to develop and improve
Private International Law in order to meet the challenges of the modern world.

LIST OF LITERATURE

1. Dictionary of Law. – Seventh Edition. – Oxford University Press, 2009.

– 604 p.
2. Теорія держави та права: Посіб. для підготов. до іспитів/С.М.
Тимченко, Р.А.Калюжний, Н.М.Пархоенко, С.М.Легуша. – 3-є вид. стереотип. –
К.: Вид. ПАЛИВОДА А.В., 2007. – 176 с.
3. The Free Dictionary: Private International Law: http://legal-
dictionary.thefreedictionary.com/Private+International+Law
4. Legal Dictionary, Private International Law Definition:
http://www.duhaime.org/LegalDictionary/P/PrivateInternationalLaw.aspx
5. Chesire, North & Fawcett Private International Law. – Fourteenth
Edition. – Oxford University Press, 2008. – 1390 p.
6. Hague Conference on Private International Law: Overview:
http://www.hcch.net/index_en.php?act=text.display&tid=26
 5

7. Hague Conference on Private International Law: Conventions:

http://www.hcch.net/index_en.php?act=conventions.listing
8. Кисіль В.І. Міжнародне приватне право: питання кодифікації. – 2-е
доповн. і перероб. вид. – К.: Україна, 2005. – 480с.

ANNOTATION

The report represents the information on the theme ‘The Issue of Unification in Modern
Private International Law’. It starts with the definition of Conflict of Laws according to the
legal dictionaries, with some understandable examples provided. After that the author’s
attention moves to the explanation of the sense of two possible ways of legal regulations in
the sphere of Private International Law (unification of internal laws and of Private
International Law). Both methods are briefly but at the same time fully examined, with
examples given. In the last paragraph the author sets forth a concise conclusion. When writing
this report, modern literature of prominent authors and up-to-date Internet resources were
used. The report was written for the purpose of the participation in the International Scientific
and Practical Conference ‘Development of International and National Law in Modern Times’.