Private International Law: Jurisdiction, Conflict, and Treaties

Private International Law: Concepts and Application

Within various legal systems, rules and standards applicable to legal relations with foreign elements are known as Private International Law (PIL) rules or conflict-of-laws rules. For example, if two individuals enter into a contract in Uruguay, and one later sues the other, applying to Chilean courts to declare the contract void in Chile, questions arise:

• Do Chilean courts have jurisdiction to hear this case?
• If, after careful study, we determine there is jurisdiction, should the Chilean judge apply the provisions on contract annulment contained in Uruguayan law or those in Chilean law?

PIL rules of a country determine whether its courts have jurisdiction over a particular matter involving a foreign element, and if so, what substantive law should be applied by the court to settle the case. National PIL rules do not provide the ultimate solution; they do not resolve the problem directly. Instead, they indicate which specific legislation should be applied, such as 'Chilean or Uruguayan law?'

To harmonize these private PIL rules, states have entered into treaties or conventions, such as the Hague Conventions on Private International Law and the Bustamante Code (also known as the Private International Law Code), which are ratified by several Latin American countries.

General vs. Particular Private International Law

General or Universal Private International Law refers to the part of international law whose rules possess universal validity and are, in principle, applicable to all states. These general PIL rules are comprised of international customary norms of universal validity and general principles of law. Examples include rules concerning the immunities of diplomatic agents and respect for the human person without distinction.

However, Particular Private International Law encompasses rules valid only for specific states that have agreed to or accepted them. It is composed of international treaties and regional customary rules or authorities. Examples include border treaties, agreements like MERCOSUR, and the North American Free Trade Agreement (NAFTA).