Unification of Private International Law

Dictionary meaning of unification is “being united or made into a whole.”

A hundred years ago, many lawyers believed that the law of individual nations could, and would,
eventually become unified. In a well know speech made in 1888, Ernst Zitelmann advanced a case for
“global law” (Weltrecht). According to his argument, because the formalities of legal provisions are
common everywhere and the policy goals are, or are going to be shared by every civilized nation, the law
of every nation will in end converge.

Now, it has been said earlier that the need for private international law arises because the internal laws of
different countries differ from each other. If the internal laws of the countries of the world lay down
uniform rules, probably there will not be any need for private international law. But then, difference is not
only in the internal laws of different countries but also in the private international laws of countries, on
account of which sometimes conflicting decisions are pronounced by the courts of different countries on
the same matter. Thus, the need for the unification of rules of private international law arises.

There are two modes for unification of private international law:

Unification of the internal laws of the countries of the world, and

Unification of the rules of private international law

Unification of the Internal Laws of the Countries of the World

The first step in the direction of the unification of internal laws was taken by the Bern Convention of
1886 under which an international union for the protection of rights of authors over their literary and
artistic works was formed.

After the First World War, an international institute for Unification of private laws was established at
Rome. The institute has achieved some success in the field of unification of civil laws of different
countries of the world. The Warsaw Convention of 1929 which has been amended by the Hague
Convention of 1955 is a landmark in this direction. This convention provides for uniform rules relating to
carriage of goods and persons by air.

If looked at in the background of fundamental differences in the various systems of law in the world, this
achievement is not very poor, though looked at in the overall perspective, it is quite insignificant.

There has also been an attempt at the unification of civil law between the Soviet Union and the People’s
Democracies of Eastern Europe. These countries have also attempted to unify certain laws with the West
European Countries. For instance, Convention on Economic Assistance.
But this method of unifying laws is not successful due to reasons such as the kind of society of one nation
differs from society of another nation. Public policy is also one such illustration, due to which unifying
internal laws of all the nations of world in not practically possible.

Unification of Rules of Private International Law

On account of basic ideological differences among the countries of the world, it is not possible to achieve
unification of all private laws. Therefore, another method of avoiding the situation where courts in
different countries may arrive at different results on the same matter is the unification of the rules of
Private International Law. Considering the importance of the unification of rules of Private International
Law, several serious international efforts have been made in this direction, some with success.

Before 1951, the main effort was directed at the unification of rules of private international law of
European Continental countries, since most of them follow civil law systems. On the other hand, nothing
could be done towards the unification of rules of private international law of the commonwealth countries
and the United States on the account of fundamental differences between the two systems of law.
However, after 1951, some serious attempts have been made with some success at the unification of rules
of private international law of all countries of the world. In 1951, a permanent bureau of Hague
Conference was constituted to look after this issue. The purpose of the Hague Conference on Private
International Law (HccH) is to work for the broad unification of the rules of private international law.
HccH develops and supports international conventions in the domains of protection of children, family
and property relations, legal cooperation and litigation, as well as commercial and finance law.

Today, the International Institute for Unification of Private Law (UNIDROIT) looks after this matter. It is
an independent intergovernmental organization with its seat in Villa Aldobrandini in Rome. And its
purpose is to study the needs and methods for modernizing, harmonizing and coordinating private, and in
particular commercial law, as between states and group of states and to formulate uniform law
instruments, principles, and rules to achieve those objectives. It was set up in 1926 as an auxiliary organ
of the League of Nations. The Institute was re-established in 1940 on the basis of multilateral agreement,
the UNIDROIT Statute. As of 2014, UNIDROIT has 63 state members from over 5 continents.

Benefits Derived From Unification

If such rules are unified then there would be no conflicting judgments on the matter involving foreign
elements by different courts. Secondly, unification of laws will make the court proceedings less time
consuming, as the courts will be aware of what laws are applicable in a matter, and would not have to
spend time in deciding the applicable substantive law in the matter. Thirdly, as it is the era of
globalization and people get involved in personal and commercial relationships often, therefore, if there is
unification then there would be less conflict at the first place, and if it is still there, then it would be easy
to settle the dispute quickly. Also, due to unification world can be brought up on same platform. If states
have contradictory rules, and benefits of avoiding the contradiction are large enough then there will be an
incentive for states to choose to unify their laws.
A simple example is the traffic rule providing which side of the road a car shall drive on. Neither the right
side rule in continental Europe nor the left side rule in Japan and Britain has proven to be superior.
However, the coexistence of both rules may be harmful to the facilitation of international traffic.

India and Private International Law

The rules of private international law resolve the issues concerning conflict of laws, which arise because
of differences between the law of the country of nationality of a person and that in which that person may
reside, or of which he may acquire nationality. These issues most frequently arise in relation to personal
matters such as marriage and divorce, custody of children, abduction of children, adoption and
succession. These rules are mainly based on court decisions. In case of India, difficulties also arise
because while in India the applicable personal law relating to these matters is determined by the religion
of the individuals concerned, most countries in which there is substantial presence of Indian nationals do
not have personal laws based on religion and a unified civil code applies to all persons residing there.

Currently India is a member of The Hague Conference on Private International Law (member since
13/03/2008). And India has signed 3 Hague Conventions out of its 24

Conventions on Unification of Private International Law.

Hague Conventions signed by India are:
1) Abolishing the requirement of legalization for foreign public documents (signed 14.7.2005)

2) Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, 1965

3) Taking of Evidence Abroad in Civil or Commercial Matters, 1970.

Hague Conventions ratified by India are:

1) Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public
Documents

2) Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters

3) Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
4) Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry
Adoption

Problems and Challenges in Unification of Private International Law Rules

Major problem is that, although internal laws of countries are different from each other as per their
requirements. Now even the private international law rules are different and not similar in all the
countries then the matter involving foreign elements is difficult to solve. The court of any nation will face
the same dilemma of what laws would be applicable in a matter if there is involvement of foreign
element. Also, many a times courts will give up conflicting judgment on same matter as it is up to the
court to find appropriate applicable law and thus is discretion of court. Thus, unification is very necessary
in serving justice.

Now, challenge in unification is, firstly, making the state agree of at least signing the unification
conventions and then later making them rectify such conventions. Secondly, meeting the demands of
states. As every state wants to architect the convention as per their own requirements. Thirdly, enforcing
such unification rules in all the countries of the world and then monitoring the process and courts.

Conclusion

Rules of private international law are applied in the matter where some foreign element is present. In such
a case the first question that arises before court of law is what would be the applicable law and thus comes
the need of private international law.

Need of private international law arises because the internal laws of different countries differ from each
other. If the internal laws of the countries of the world lay down uniform rules, than probably there will
not be any need for private international law. But then, difference is not only in the internal laws of the
different countries, but also in the private international laws of different countries, on account of which
sometimes conflicting decisions are pronounced by the courts of different countries on the same matter.
Thus, need for Unification of Private International law Rules arise.

Unification of Private International law Rules can be done through two modes:

1. Unification of the internal laws of the countries of the world, and

2. Unification of the rules of Private International law.

Now, unification of internal laws of all countries is not practically possible as the municipal laws of every
nation are made as per the need and requirements and circumstances of their society. And thus, municipal
or internal laws differ from country to country.

But if rules for private international law are unified then it would solve the dilemma of deciding the
applicable laws in a matter involving foreign element. As private international law rules are applied as the
domestic rules of a country.

With the help of such unification duration of court proceedings could be reduced and uniformity can be
brought. With the help of unification all the countries could be bought at same platform in this era of
globalization.

The basic concept of unification is that the ultimate goal of all the courts of all countries of world is
similar that is to deliver justice. Thus, with the help of unification of rules of private international law
justice could be served at a rapid rate and conflicting judgments on same matter by different courts of
different countries can be avoided.