scholarly journals Foreign law in higher courts practice. The key characteristics of Georgian private international law

2021 ◽  
Vol 11 (special) ◽  
Author(s):  
Tamar MSKHVILIDZE
Keyword(s):  
International Law ◽  
Information Technologies ◽  
Case Law ◽  
Private International Law ◽  
Foreign Countries ◽  
Foreign Law ◽  
Key Characteristics ◽  
Lower Courts ◽  
Modern Information ◽  
Correct Application

This paper aims to investigate the application of foreign law in higher courts practice. The process of determining a foreign law raises practical difficulties, as a judge must apply not just foreign law acts, but also the case law and interpretation with which it is applied in another State. In private international law process the effectiveness of the application of foreign law depends on how correctly and delicately can the higher courts review decisions made by the first instances. In some countries, higher courts have the power to control the correct application or non-application of foreign law by judges, but in some cases, such courts lack this ability. In spite of the development of comparative jurisprudence and modern information technologies, none of the countries’ judge can have a claim on exact knowing of relevant standards of the law of foreign countries. Consequently, the danger of making a mistake is more greater when it comes to interpreting and applying foreign law. Thus, it cannot be expected that the higher court should be able to review interpretation of foreign law acts applied by the lower courts and to provide that this interpretation is relevant to that which the practice of the foreign country would adopt on the same question. There is an opinion that the higher courtsshould refrain from control the wrong application of foreign law in order to guard their own authority, as there is a high risk of misinterpretation of a foreign rule. The different aspects of this problem will be examined in this article.

scholarly journals Qualification of Concepts and its Problems in Cases with Foreign Element in Poland and the United Kingdom

2013 ◽  
Vol 32 (1) ◽  
pp. 67-74
Author(s):  
Katarzyna Bagan-Kurluta
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Case Law ◽  
Functional Method ◽  
Internal Source ◽  
Private International Law ◽  
Uniform Approach ◽  
The United Kingdom ◽  
Foreign Law ◽  
The Law

Abstract Qualification is the basic instrument used in the process of application of the law. It is impossible to apply the law without conducting it. The main internal source of collision law in Poland, Act of private international law dated February 4th, 2011, does not specify how to carry on the process of the qualification, and doctrine is of the opinion that the Polish court applying foreign law should interpret the foreign concepts according to the rules of this law and give them such meanings as this law assigns to them. But also there are four doctrinal proposals concerning methods of qualification. The first one (with various modifications) is relatively popular in a number of countries, while the Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex causae approach, 3) autonomous method and 4) functional method (or collision lex fori approach). The English judge applying the rules derived from his own internal law remembers about the function of private international law - and therefore takes into account the rules and institutions adopted in the foreign laws. That is application of lex fori approach modified because of the function of collision law, indeed reminiscent of a functional method. However, due to the lack of a uniform approach to qualification and identification of the only way to proceed by the doctrine and case law, it is permissible to move away from the use of this method. For instance it is possible to use the lex causae approach, if it leads to an equitable solution. Lack of regulation of qualification gives a person applying the law a freedom, but at the same time leads to uncertainty about the effects.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

scholarly journals Problems of legal qualification in private international law: doctrine, case law and Ukrainian law

2020 ◽  
Vol 3 ◽  
pp. 129-139
Author(s):  
Natalia Perestiuk
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Valuable Contribution ◽  
Choice Of Law ◽  
Foreign Law ◽  
Alternative Approaches ◽  
Controversial Nature ◽  
Historical Origins

In this paper, the author observes the historical origins and development of doctrines of qualification (characterization) in private international law. Analyzing different approaches as to the place of qualification in the process of operation with a choice-of-law rule, as to its scope and subject, as well as to the distinction between qualification and interpretation processes, the author concludes on the controversial nature of this issue, as well as of the alternative views on the qualification subject and approaches to qualification that may be followed by a judge. Considering current Ukrainian private international law act within the context of alternative approaches to qualification (characterization), the author recognises valuable contribution of its Article 7, arguing that it is exactly a function embodied into a foreign law institute should be treated as a point of synchronization with the relevant choice-of-law rule of the forum. And the role of the case law the author sees as a decisive in the course of such approach implementation.

scholarly journals Foreign Law Rules in French Justice: The Basic Problems and Challenges

Law and World ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 195-205
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Legal Proceedings ◽  
Applicable Law ◽  
Legal Relationship ◽  
Foreign Law ◽  
French Case ◽  
Local Law ◽  
The Right

Private international law plays an important role in defining applicable law and regulating private international law relations. Foreign law is significantly different from local law. Judges do not have the right to change the content of foreign law, they simply have the opportunity to reject or apply foreign law. When a judge is obliged to make a decision based on the rules of national law in the process of legal proceedings, it is clear that the law of a foreign country can- not enjoy the same status. The issue of determining the content of foreign law and its application remains one of the most problematic issues in the private international law of countries around the world. French case law has gone through a difficult and controversial path to formulate a decisive position on the application of foreign law. Resolving this problem was especially important for France, as the courts of this country have to deal with a large number of international litigation cases. The basis for the application of foreign law is the choice of French private international law rules, as a particular legal relationship is subject to regulation by a foreign legal system. Thus, French courts apply foreign law to administer high-quality justice, as finding the right solution lies in applying foreign law.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

scholarly journals Systematization of private international law in Ukraine and foreign countries: present state and tendencies

2020 ◽  
Vol 3 ◽  
pp. 122-128
Author(s):  
Mykola Lazarenko
Keyword(s):  
European Union ◽  
Soviet Union ◽  
International Law ◽  
Present State ◽  
Former Soviet Union ◽  
Private International Law ◽  
Legal Analysis ◽  
The European Union ◽  
Foreign Countries

Systematization of private international law in Ukraine and foreign countries: present state and tendencies.The article deals with the comparative legal analysis of the systematization of the statutory provisions of private international law in the countries of the European Union and some countries of the former Soviet Union. The main arguments regarding different approaches to the systematization of private international law in Ukraine are outlined, as well as the main directions and tendencies of the codification processes of legislation in this area.

scholarly journals Libre circulación de personas y Derecho Internacional Privado: un análisis a la luz de la jurisprudencia del Tribunal de Justicia de la Unión Europea = Free movement of persons and International Private Law: an analysis in the light of the case law of the European Court of Justice

2017 ◽  
Vol 9 (2) ◽  
pp. 106
Author(s):  
Irene Blázquez Rodríguez
Keyword(s):  
International Law ◽  
Mutual Recognition ◽  
Case Law ◽  
Free Movement ◽  
Legal Person ◽  
Private International Law ◽  
European Court ◽  
Palabras Clave ◽  
European Citizenship ◽  
Free Movement Of Persons

Resumen: El objetivo de este trabajo es analizar la interacción entre la libre circulación de per-sonas y el Derecho internacional privado. Mediante esta dimensión se profundiza en la esencia de esta movilidad intra-UE, al tiempo que se calibra el alcance del status civitatis europeo. Este estudio se sus-tenta en una jurisprudencia reciente –si  bien consolidada– del TJUE en la que se garantiza no sólo el desplazamiento sino también el reconocimiento de situaciones privadas en el espacio europeo, y ello con independencia de la regulación material o conflictual del Estado miembro de acogida. En esta acción, la persona tanto física como jurídica trasciende su propio Derecho nacional y adquiere una auténtica dimensión “europea”.Palabras clave: libre circulación de personas, ciudadanía de la Unión, Derecho internacional pri-vado, estatuto personal.Abstract: The aim of this paper is to analyse the interaction between the free movement of persons and private international law. This dimension deepens in the essence of this intra-EU mobility, at the same time as measuring the scope of the European status civitatis. This study is based on recent –yet already well defined– case law of the CJEU, guaranteeing not only the movement but also the mutual recognition of civil situations into the common European space, independent of substantive or conflict rules of the host member state. With this action, both natural and legal person go beyond their own na-tional law in order to acquire a truly “European” dimension.Keywords: free movement of persons, European citizenship, Private International Law, personal status.   

scholarly journals Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

2017 ◽  
pp. 80-87
Author(s):  
Indrani Kundu
Keyword(s):  
International Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Cross Border ◽  
Civil Union ◽  
Foreign Law ◽  
Marriage Laws ◽  
The Difference ◽  
Domestic Law ◽  
Legal Procedures

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 45 Liechtenstein: Liechtenstein Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Heiss Helmut
Keyword(s):  
International Law ◽  
Case Law ◽  
Contract Law ◽  
Constitutional Court ◽  
Private International Law ◽  
International Treaties ◽  
Choice Of Law ◽  
International Convention ◽  
Legal Literature ◽  
The Hague

This chapter looks at Liechtenstein perspectives on the Hague Principles. Rules on choice of law, including international commercial contract law, have been codified by virtue of the Act on Private International Law 1996 (Liechtenstein PILA). The Liechtenstein PILA does not expressly state that conventions will take precedence over national laws. However, it has been held by the Liechtenstein Constitutional Court that international treaties are of at least equal status to regular national laws and that national law must be interpreted in line with public international law. Moreover, an international convention will often be considered to be a lex specialis and be given precedence over national rules on that ground. Liechtenstein courts will refer first of all to (old) Austrian case law and legal literature when dealing with matters pertaining to the parties’ choice of law. Whenever these sources leave ambiguity to a specific question, Liechtenstein courts may and most likely will consider other persuasive authorities. The Hague Principles may constitute such persuasive authority.

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