Private International Law: Rules, Sources, and Key Principles
Item 1. Fundamentals of Private International Law
1. Introduction
When a legal relationship involves two or more state legislations, a conflict of Private International Law arises. This necessitates determining which law applies to that relationship.
This need stems from two factors:
a) Sociological Factor:
- Cosmopolitanism: Human interaction and travel across borders have created a borderless society.
- Globalization: Increased integration and interdependence among nations necessitate legal frameworks for cross-border interactions.
b) Legal Factor:
Legislative diversity across countries requires mechanisms to manage the interaction of different legal systems.
2. Definition of Private International Law
Private International Law is a legal discipline that determines the applicable law or jurisdiction for cases connected to multiple legal systems. It also addresses the extraterritorial effect of acts and judgments.
3. Rules of Private International Law
Rules of Private International Law do not directly regulate the substance of a case but indicate which substantive law applies. These rules of connection (NC) have a dual role:
a) To identify the legal competence of States;
b) To identify the applicable substantive law.
4. Factor Connection (FC)
Connecting factors are elements linking a case to a particular legal system. They are circumstances or conditions relating to persons, goods, instruments, or territories.
Classification of connection rules:
a) Structure:
- Fully bilateral or perfect: These rules fulfill both functions of a connection rule, determining the applicable law.
- Incomplete, unilateral, or imperfect: These rules only limit the applicable law but do not specify which country’s law applies.
b) Origin:
- Individual method: Rules originating from the legal jurisdiction of each State.
- Collective Method: Rules arising from international conventions and treaties.
c) The connecting factor:
- Single Factor Connection: The rule has one connecting factor (e.g., nationality, address, place of event). Example: Article 34 Private International Law – Successions are governed by the law of the domicile of the deceased.
- Single Factor Complex Connection: The rule has one connecting factor but is subject to conditions. Example: Bustamente Code Article 289 – A collision in territorial waters is subjected to the law of the flag if common.
- Diverse Factor Connection:
- Cumulative: Rules contain multiple connecting factors that apply concurrently. Example: Article 36 CB – Contracting parties are subject to personal law regarding the ability to celebrate marriage.
- Alternative: Rules contain multiple connecting factors, but only one applies. Example: Article 11 of the Civil Code; Article 37 LDIP – Legal acts are valid if they meet the requirements in any of the specified jurisdictions.
Characteristics of Private International Law:
- Extraterritoriality: Resolves conflicts outside the scope of national law.
- Positive Law: Contains strict rules from national laws and international treaties.
- Private Interests: Deals with the interests of individuals in private relations.
- Adjective Law: Holds the dual role of the attachment rule.
- Universality: Regulates private rights in international society with generally accepted principles.
6. Legal Nature of Private International Law
Private International Law has a unique legal nature, incorporating elements of:
a) Public Law: Addresses nationality and legal status of foreigners.
b) Private Law: Governs relations between individuals from different states (e.g., marriage, divorce, contracts).
c) International Law: Legal relationships can be based on treaties and international conventions.
d) Domestic Law: Rules adopted by each State’s legislature.
9. Differences between Public International Law and Private International Law
Public International Law: Regulates relations among states; resolved through treaties and diplomatic means.
Private International Law: Regulates relations between individuals of different States; resolved through courts.
Both use treaties and domestic law, but domestic law is a direct source for Private International Law and an indirect source for Public International Law.
10. Non-retroactivity of the Rules of Connection
A new rule of connection should not govern a legal relationship established under a previous rule, based on the principle of non-retroactivity of laws.
1. Classification of Sources of Private International Law
Sources are divided into:
a) Formal: Legal rules such as law and custom.
b) Material: Doctrine and jurisprudence that confirm the content of the law.
2. Sources
Sources include law, treaties, custom, case law, general principles of law, and doctrine.
Law: Domestic legislation with Private International Law precepts.
Treaties: Binding regulatory systems among signatory States.
Custom: Important due to limited codification in some States.
Case Law: Decisions of international courts (e.g., ICJ, Inter-American Court of Human Rights).
General Principles of Law: Applied as per Article 4 of the Venezuelan Civil Code.
Doctrine: Scholars’ work, especially important given the abundance of legal texts.
3. Hierarchy of Sources of Private International Law in Venezuelan Legislation
Article 1 of the Private International Law Act states that treaties are implemented first, followed by rules of law, analogy, and general principles of law. International sources can be found in treaties and other domestic sources.