Principles of Private International Law: A Comprehensive Guide

Posted on Aug 28, 2024 in Law & Jurisprudence

Private International Law

Concept

A set of principles and standards that determine the limits in space and the legislative authority of States when applying legal systems to relationships that could be subject to more than one.

Constitutional Principles – Article 4 of the Federative Republic of Brazil

These principles govern Brazil’s international relations:

  1. National Independence: The manifestation of sovereignty in the international order.
  2. Prevalence of Human Rights: May lead Brazil to support interference from other states to prevent the deterioration of human dignity, prioritizing human rights over sovereignty.
  3. Self-Determination of Peoples: Stems from the recognition of equality among States, respecting each state’s sovereignty and non-interference in their internal affairs.
  4. Non-Intervention: A foreign policy advocating avoidance of alliances with other nations while maintaining diplomacy and avoiding wars except for direct territorial self-defense. Based on the principles of state sovereignty and self-determination.
  5. Equality of States: A principle of non-subordination internationally, emphasizing formal legal equality despite economic disparities and promoting cooperation between states.
  6. Defense of Peace and Peaceful Settlement of Disputes: Prioritizes preserving and promoting peace and resolving conflicts peacefully.
  7. Repudiation of Terrorism and Racism: Complete rejection of all forms of terrorism and racism.
  8. Cooperation Among Peoples for the Progress of Humanity: Mutual cooperation and assistance for the advancement of humanity.
  9. Political Asylum: Protection for those persecuted in another state for political or other opinions.

Object of Private International Law

This field studies the subjects of law, including nationality and the legal status of foreigners. It addresses conflicts of laws, rights, and penalties, and deals with the conflict of jurisdictions.

When dealing with the conflict of laws, Private International Law creates standards to guide judges in choosing the applicable law. While the conflict between laws of different states remains, the factual situation is resolved by the chosen law, guided by rules established by legislation, doctrine, or case law.

Each legal system creates its own laws, leading to potential conflicts when different rules apply to the same legal institution. Private International Law helps determine which law should govern in such situations.

Sources of Private International Law

Internal sources like law, doctrine, and jurisprudence prevail in Private International Law. However, treaties, conventions, and international law are also important sources.

Law

Brazil’s Law of Introduction to Legal Norms (LINDB) is crucial, applying to all codes and laws, regardless of their public or private nature.

Doctrine

Due to limited legislation, the doctrine plays a significant role in interpreting judicial decisions and establishing basic principles. It provides guidance for courts and utilizes collective work from international legal bodies.

Jurisprudence

Case law is more prominent in Europe due to greater international activity. In Brazil and South America, jurisprudence is less developed due to lower international engagement, focusing mainly on foreign judgment enforcement, extradition, and expulsion.

Treaties and Conventions

These are important sources of international legal principles and rules.

Qualification in Private International Law

Also known as the theory of qualifications, this concept indirectly affects the standard of private international law by influencing its connecting object. It involves classifying a legal issue into a specific category to determine the applicable law.

Three main theories address the applicable law for qualification:

  1. Qualification by the Lex Fori: The judge applies the rules of private international law of the forum (lex fori).
  2. Qualification by the Lex Causae: The qualification is determined by the law governing the legal relationship (lex causae).
  3. Qualification by Autonomous and Universal Concepts: Seeks objective elements for qualification, but is considered impractical.

Brazilian law adopts the lex fori theory with exceptions for the classification of assets and liabilities (LINDB, Articles 8 and 9).

Connection Rules

These rules, established by Private International Law, indicate the applicable law in situations connected to multiple legal systems. They involve:

  1. Categorizing the legal situation or relationship.
  2. Identifying the legal seat of the situation or relationship.
  3. Determining the applicable law based on the legal seat.

The connecting factor links the situation to the governing law, considering the subject, object, or legal act. The location of the legal relationship determines the applicable law.

Example: Article 9 of LINDB

“To qualify and govern obligations, the law of the country in which they are constituted shall apply.”

  • Rating: Refers to the creation of obligations and specific types of contracts.
  • Location: The country where the obligation is created.
  • Determined Law: The law of that country.