Private international law (DIPr) is the set of norms that regulate the private relationships of citizens of different States. This right will indicate which courts are competent to resolve the conflict and which law must apply.
Private international law is a branch of civil law, since it only regulates private relationships between natural and legal persons, but without there being a public interest. It could be said that it is the civil right to apply when there is conflict in private international relations, that is, between people from different States.
This right arises from the need to harmonize solutions in a globalized world where the presence of a set of differentiated legal systems gives rise to the possible existence of relationships and legal situations that appear linked.
Assumptions for the DIPr to be applied
Several assumptions must be met for the norms established in private international law to be applied. These requirements are:
- Internationality: It is necessary that the people who need to have their controversy resolved or who want to know what obligations and rights protect them are of different nationality. If the people are from the same State, they will apply civil law.
- Private: This right will only apply to relationships belonging to private law, that is, relationships developed between individuals in the strict sense, natural and legal persons, without public interest.
Content of private international law
What does private international law regulate? This right is in charge of three different areas:
- International judicial competence: This branch is in charge of verifying that the judge or court that is going to solve an international private conflict has the competence to hear the lawsuit. It establishes rules to determine which courts, and from which state, have jurisdiction.
- Applicable law: Refers to what is the law applicable to the dispute. It establishes rules to determine which law, that of which State, must be applied. This will give as a solution the application of the national legal system or of another country to resolve the conflict that has arisen.
- Recognition and execution of foreign decisions: What effects can be attributed to a judicial or extrajudicial decision that comes from a foreign State.
Characteristics of private international law
The main characteristics of this right are:
- It is a private right, that is, it regulates private relationships where there is no public interest.
- Its recipients can be natural or legal persons, and they can also be public administrations as long as they act privately, as yet another party.
- It is responsible for introducing a regulatory framework to private relationships that occur in everyday life between nationals and foreigners.
- Its main function is to define a framework of legal certainty so that people know which law, from which State, is applied to them, and to which courts they should go.
- Its purpose is to provide an adequate and fair response to the problems that citizens are exposed to as a consequence of the existence of a plurality of independent legal systems that end up linked by a specific relationship or legal situation.
- Its main sources are international conventions, regulations, directives and community conventions, the internal law of States and transnational law.
Example of DIPr
To better understand how the DIPr works, let’s see an example:
A company domiciled in Spain contracts with a company domiciled in France to provide a service. The French company does not fulfill the contract in the established terms and the Spanish company is considering suing it for breach of contract.
This is a clear situation that complies with the two assumptions to apply this right: internationality and private conflict. It will be necessary to go to the DIPr regulations so that they indicate:
- Jurisdiction : Which court is competent? It can be Spanish, French or another. Would it be valid to agree in the contract to which courts of which country they would submit if there was a conflict? All these solutions will be provided by the DIPr.
- Applicable law : What law can be applied to solve the conflict? It can be Spanish, French or another. Would it be valid to agree in the contract which law of which country would be applicable if there was a conflict? All these solutions will be provided by the DIPr.
- Recognition : Will the sentence handed down by the judge be recognized in other countries? All these solutions will be provided by the DIPr.
A German citizen residing in Spain dies in Spain and his heirs reside in Italy. What regulations should be applied to the opening and distribution of that inheritance? It would also be a problem submitted to the DIPr.