CHAPTER ONE

INTRODUCTION TO PRIVATE INTERNATIONAL LAW

You should be familiar with the following areas

  • Concept of Private International Law
  • Objectives of P.I.L
  • Nature of P.I.L
  • Scope of P.I.L
  • Development of PIL
  • Development of P.I.L in Tanzania

1.1  CONCEPT OF PRIVATE INTERNATIONAL LAW

Meaning of Private International Law

According to Blacks’ Law Dictionary defined Private International law as branch of international law which designed to regulate disputes of a private nature, notwithstanding that one of the parties may be a private state[1].In other words regards as body of conventions model laws, national laws, legal guides and other documents and instruments that regulates private international relationships across national borders.

OR

Is the legal framework composed of conventions, protocols model laws legal guides information documents, case laws, practice and customs as well as their documents and instruments which regulate relation between individual in the international context.

OR

Private international law can also be referred to as (Conflict of laws) is a set of rules that determine which court has jurisdiction and which laws governs a given legal dispute.

OR

Is branch of law which came into operation whenever a court face the with issue of private nature that contain a foreign element. It covers private relation between person from different jurisdiction or matter which court across more than on jurisdiction

1.2  OBJECTIVES OF PIL

  • To help the court to determine whether it has jurisdiction to enter in any matter that has been in any matter that has been brought before the court.
  • It help the court to determine the system of law that will be applicable in that such case
  • To determine condition upon which a foreign judgment or arbitration awards may be considered enforceable in a court.

1.3  NATURE OF P.I.L

  • Private international law or conflict of laws compresses that body of rules which determine whether local or foreign law is to be applied and, if so which system of foreign law
  • Determine the limits of the application of the legal systems of different states in private relations
  • Jurisdiction of state authorities courts or magistrates which may trench upon private legal relations depends upon the applicability of the legal system

1.4  SCOPE OF P.I.L

Private international law is not a separate branch of law in the same sense as the law of contract or tort.

Private international law is a separate and distinct unit in the English legal system just as much as the law of tort or of contract, but it possesses this unity, not because, it deals with one particular topic because it is always concerned with one or more of three questions namely

  • Jurisdiction of the English Court
  • Recognition and enforcement of foreign judgments

1.5  DEVELOPMENT OF P.I.L

The Birth of Private International Law (Roman Empire 27BC 14C)

Roman law is regarded as the foundation of civil law system[2]. Roman jurisprudence has to be given credit for the birth and evolution of certain basic concepts, principles rules and approaches[3]. Roman theory of international order was simply the universalization  Roman order- a homo generalization of law which renders private international law redundant[4]. Choice of law became real problem when the Roman Empire was overturn and settled by German tribes[5]. According to German conception every person was given by the law of tribe to which he belonged. Here it become difficult in administering the law had became increasingly burdensome. When persons subject to different legal systems came into contract with each other, whether through commerce or intermarriage a communication of laws was clearly impracticable and clear-cut solution were required[6]. Inoder to pinpoint the problem in question the option was one to select one free will the law govern the transaction[7].

Thus, by 12th century a system had been developed in the Germanic parts of France and Netherlands which connected persons things, contracts and torts with a particular legal system indirectly by determining jurisdiction with the help of a certain localizing or connecting factors, such as place of birth, permanent residence, place of contracting or suits of objects[8].Effectiveness was the moving consideration and the choice of law was coincident with the choice of jurisdiction. Feudalism and the remains of the system of person law emerged which bear a remarkable similarity to modern Private International Law. By end of 12th century the law no longer attached to a person and the same person could be subject to Longo board Law if it Florence and to Roman Law in Bologna[9]. That the former tribal laws had became elements of a conflict of laws just on any other local law[10].

On 13th century city of Northern South Italy, Germany Pisa and others, each of these city had their codification customs were charged by statutes of the time tried to find a solution to these problems by means of interpreting the Roman law, although the latter did not contain an conflict rules so that, it turn, this led to the artificial adoption to the needs of the trade of city state[11]. Thus arose the theories of the commentaries where made glossary in margin of the justice code i.e on the manuscripts and then, those of post commentaries[12].

Up to 14th century (Barlous 1314-1357) Baldius who are considered as originator of the doctrine of private international law, the post commentors were, however, not limited by glossaries, they put together more or less general commentaries on the next of Roman law[13]. According to the theory of statutes which they advanced all statutes (i.e) other words laws) must be classified by type and then for each type one must fix a conflicts principle[14]. Thus, essence of the theory of the post commentaries consists in the fact that conflicts principles should be established proceeding from the content of the corresponding material norms of civil law[15].

During 15TH TO 18TH Century

In 16th century, France because of the presence in the process of various customs and the absence of a single aid law the primary task was the solution not of the inter-state conflicts but of conflicts of an inter-province character.[16] France jurist, Charles Domounlin (1500- 1566) reflecting the question of commerce of that time, advanced the theory of the “Automous will “ of the parties according to which the parties could apply customs chosen by them to their contracts.[17]   In England merchant began to administered by the courts of common law theory becoming, theoretically at least, a part of the common law and not a law of foreign.[18] In 1760 Lord Mansfield in Robison Bland gave a decision on a question of conflict of laws in the area of contracts followed by the first statement of  a rule in 1775. Up to end of the 16th century there however “no conflict of laws as such as law merchant never came into direct conflict with the law.

In 17th century Dutch jurist Unrich Huber (1636 – 1694) and Johannes Voet (1647 -1714 ) in the interests of wider application of what was for that time the progressive law of Dutch provides which were fighting against Spanish domination. According  to their teaching all statutes have a strictly territorial character and must be applied to all persons residing on the territory of the given province.

The recognition of the effect of foreign laws follows only by virtue of International courtesy and is admitted to the extent that such recognition does not detract from the sovereignty of the provience and the law its citizens. Theory which was developed during that time was territorial or vested rights theory, based on the principle of territorial administration of country that judge can only enforce the law and recognize the judgment of their own legal system to which they belong in other words jurisdiction in territorial or circumscribed by territory[19].

Bourgeois Docrine 19TH TO 20TH Century

Dutch jurists Huber and voet and above all the teaching as to commitas were used by a member of the us supreme court, Joseph stay (1779- 1845) who is 1834 published commentaries on the conflict of laws. The territorial doctrine of stay was initially adopted by American judicial practice and then by English aunt heritative authors who developed this doctrine were Beak in the United states and Dicey in England an whose authority courts in those countries continue to rely.

The essence of the Anglo-American territorial doctrine leads to the following a state in principle applies only its own law but it on recognize subjective rights based on foreign law (so –called) “acquitted law”

The recognition of rights acquitted on the basis of foreign law proceeds by virtue of international courtesy.

By this very fact there was underlined the non-obligatory recognition of rights based upon foreign law, while the theoretical basis was formed for the limitation of the application of foreign law and grounds were provided to subject foreign national entering into commercial relationships with local firm, to the laws of the United states or England.

To a great degree, the territorial doctrine correspondences to the role of the United Sates on the America content and to the dominant position which England occupied in world trade (up to the end of 19th century).

The early 20th century The Hague Conference of 1910 and 1912 draft treaty of 1912 has not yet been ratified, but previous treaties elaborated in Hague and relating to private international law  During 20TH up TO 21ST Century

French scholar A. Pillet who suggested that are should consider the social purpose of the law as criterion in deciding questions. Their theory were connected with attempts then beginning to unity conflicts norms which found their expression in series of Hague Conventions at the beginning of 20th century. The theories began to developed by so called “Particularists (Bartin in 1897 in Anzilotti in 1919 in Italy) in opposition to the teaching of the “Universalities” The most consistent theory was developed by the French jurist Bartin who in his works in deciding questions of Private International Law to France Proceed only upon the basis of French civil law without taking into account that was speaking about civil law relationships connected with international intercourse[20].

In the late 1950s UNIDROIT after negations produced two draft convention which were finalized at the Hague in 1904 and implemented[21]. Also up to 1954 there was convention known as Protection of Cultural Property in case of War (Adopted under the UNESCO), n 1955 two convention were adopted includes Hague conference adopted a convention on conflicts between law of Nation of domicile and Benelux Treaty on Compulsory Insurance against Civil Liability in respect of Motor Vehicle[22].  1956 there was the convention on contract for International Carriage of Goods by Road, 1959 the European Convention on Compulsory Insurance aganst Civil liability in respect of Motor Vehicle (Europe), 1961 there was International Convention for the Protection of Performers, Producers of Phonography and Broadcasting Organization, The European Convention on the Liability of Hotel Keepers concerning the Property of their Guests 1961. Also up to 1964 89 states ratified convention which was known as Uniform law on International Sale of Goods. Other conventions which were adopted are Unification Law on the formation of contracts for the International Sale of Good (The Hague) and Brussell convention 1968.

In 1970 there was only one convention which was only two conventions which are Trade Contract (Brussels) and Uniform Law on frame of an International Will (Washington) of 1973. In 1980s the development of Private International Law were in following sequences United Nations Convention on Contract for International Sale of Goods, 1983 there was Agency in the International Sale of Goods (Geneva), The Model Law on International Commercial Arbitration (1985) brought onto effect in England by the Arbitration Act 1996, 1988 two treaty were come into force therein International Financial Leasing Cotton and International Factory.

Up to 1990s the development of Private International Law through treaties where as follows the Hague Convention on Inter convey adoption of 1993, UNCITRAL convention on the subject bridges gaps part 1960 U.S letter of credit laws and Hague Conventional on Jurisdiction of 1996

1.6  DEVELOPMENT OF PRIVATE INTERNATIONAL LAW IN TANZANIA

Most of the tribal societies in Tanganyika practiced the customary or popular assembly. The social relations were governed by customs and taboos[23]. Customary laws was an established system of immemorial rules which had developed from the way of life and natural wants of the people, the general context of which was a matter of common knowledge coupled with precedents applying to special costs which were retained in the memories of the chiefs and his councillors, their sons and the grandson. Until they become part of their customs. During the pre colonial had no any International treaty which was governed in Tanganyika.

Germany Rule 1885-1919

During the German colonial era, German did nothing in shaping private international law however, the history taught us that during 12th century influenced the development of Private international law[24]. In Tanganyika they established the mode of settling disputes within state where he established German Code of Civil Procedure although under such code there was no any provision which govern any proceeding regard to Private International Law.

British Colonial Period 1919-1960

From the commencement of British rule in 1920 there has been a eviction of rules to regulate inter-personal conflict of laws considering the person laws of different communities in Tanganyika. The British given power to rule Tanganyika under Foreign Jurisdiction Act 1890[25]. Through the said Act, British issued Tanganyika Order and Council 1920[26]. Section 17[27] there was a reception clause where the statutes laws and principles in force in Britain were made to apply into the territory as from 22nd July 1920. The Civil Procedure, which was then practiced was based on the Indian Civil Procedure Code of 1908, which was then applicable by virtue of Indian Acts (Application) Ordinance, 1920. Section 13[28] of the civil procedure code had spoke  about recognition of foreign judgments. The Indian Civil Procedure Code established High court and subordinate court where the High court was bound to follow the decision of Court of Appeal of East Africa.

In 1933 the law which was applicable in England become applicable in Tanganyika  under section 17[29] which referred as reciprocal enforcement of the foreign judgment act[30] under the said act as amended from time to time several provision recognized conflict of laws. Example section 5 recognizes enforcement of foreign judgment and first schedule allow the said act to be applicable in common law countries.

After Independence 1960-1980

The Indian Civil Procedure Code 1908 was applied in Tanganyika until 1966 and           Foreign judgment Act by virtue of Judicature and Application of Laws Ordinance[31]. Ten years after independence production of commission brought the current law of marriage Act Law[32] which recognized marriage to be conducted in another country[33].

The development of private international law went on during enactment of 63(3) (e)[34] recognize by uphold that upon any treaties and agreement to which should be applicable in Tanzania must ratified, on such a case this was one of development which the constitution on recognition of other laws in Tanzania.

Trade Liberation Period 1980S -2020s

After 1980 to present there is codified statute that governed international law but there several provision in statutes that governed example Arbitration Act[35] originally known as Arbitration Ordinance was enacted 1932 and based on the English law of that period but at that time section 29[36] speak about effect of foreign award. Also Bill of Exchange Act section 72 provide that where is conflict of laws in one country to another regard to where the bill negotiated, the said provision will be applicable[37]. Also in year 2002 there was Act which recognized foreign judgment under Act which was known as Foreign and enforcement of judgment Act under section 4 gives power to High court of Tanzania to recognized foreign judgment in Tanzania[38].

[1] B. A. Garner, Black’s Law Dictionary , Thomson & West Publisher, 20048 ,2393

[2] M.M, Bogusiavkit, Private International Law; The Soviet Approach, Martinus Nijhoff Publishers,Dordrecht (1988) 15.

[3] Ibid,

[4] A.Mills, The Confluence of Public Law and Private International Law: Justice Pluralism and Subsidiary in the International Constitutional Ordering of Private Law, Cambridge University Press, New York (2009), 28

[5] K.Lipstein, Principles of Conflicts of Laws : National and International, Martinus Nijhoff Publishers, Hague (1981) 2.

[6] Ibid

[7] Ibid

[8] Idem, 5

[9] Idem, 3

[10] Ibid

[11] Supranote 7, 17

[12] Ibid

[13] R.F. Oppong, Private International Law in Commonwealth Africa, Cambridge University Press, New York (2013) 313

[14] Ibid

[15] Idem 317

[16] Supranote 7, 45

[17] Ibid

[18] Idem 65

[19] F.E Naronha, Private International Law in India: Adequancy of Principle in Comparism, Universal Law Publishing co (2010), 64

[20] Ibid

[21] Idem, 89

[22] Ibid

[23] B.V.Teye Introduction to Civil Procedure, Open University of Tanzania, Dar es Salaam (2006) 20

[24] Supranote

[25] Foreign Jurisdiction Act, 1890

[26] Tanganyika Order and Council of 1920

[27] Idem, Section 17

[28] The Civil Procedure Code 1908, section 13

[29] Supranote 32

[30] Foreign Judgment act, no.12, 1933

[31] Section 3 (1) of JALO 1961

[32] Law of Marriage Act Cap 29 [R.E 2010]

[33] Idem, section 8

[34] The Constitution of United Republic of Tanzania of 1977 ( as amend from time to time)

[35] Arbitration Act Cap 15 [R.E 2002]

[36] Idem

[37] The Bill of Exchange Act [R.E 2002]

[38] Section 4 of Act 8 [R.E 2002] ccenty�8t�