Private international law
Private International Law
Conflict of Laws
The area of international private law (or private international law) in civil law systems is usuallyreferred to as “conflict of laws” or “collision of laws” at common law. It deals with lawsuits thatinvolve foreign element(s) and develops rules determining in what situations the laws of which jurisdictionare applicable to what transactions. A research of these rules can give litigants the opportunityto forward their case to the court which is most likely to provide a favourable judgment – this strategyis informally called “forum shopping”. Courts reviewing cases containing foreign elements usuallyfollow a similar procedure:
a) characterise the cause of action into component legal issues;
b) determine which of the competing laws (lex fori, lex situs, lex loci actus, lex domicilii, lex patriae)should be applied to each issue;
c) reach a judgment based on the selected laws;
d) secure cross-border recognition of the judgment.
The concept of “habitual residence” is used in international private law to denote a commitmentto a residence lesser than domicile but greater than simple residence. In establishing thehabitual residence of a person the court usually examines past experience, rather than futureintention. A person can have only one habitual residence – it is the place where the individualordinarily resides and usually returns to after visiting other places. Some consider that theestablishment of habitual residence is a simple test of fact, but others assert that both objectiveand subjective elements should be considered by the court. The Hague Conference on PrivateInternational Law, which first suggested the term of habitual residence, has deliberatelyrefrained from providing a concrete definition, so that the concept remains flexible and can beadapted for practical purposes.