UNIFICATION OF PRIVATE INTERNATIONAL LAW

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

Many lawyers believed a century ago that the law of individual nations could and would eventually be unified. In a well know speech made in 1888, Ernst Zitelmann advanced a case for “global law” (Weltrecht). Because the formalities of legal provisions are the same everywhere and policy goals are, or will be, shared by every civilized society, his argument goes, the law of every nation will eventually 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. There will almost certainly be no need for private international law if all countries’ internal laws provide uniform rules. 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

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.

But this method of unification has not been successful in the long run because every nation differs from the other with respect to culture, religion, the upbringing of the people, public policy, etc.

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. Given the necessity of unifying Private International Law standards, various substantial international attempts have been made in this regard, some of which have been successful. Prior to 1951, the main focus was on unifying the principles of private international law of European Continental countries, as the vast majority of them have 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, following 1951, several significant attempts at unifying the rules of private international law of all countries of the world were attempted, with some success. 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 creates and promotes international agreements in the areas of child protection, family and property relations, legal cooperation and litigation, and commercial and financial law.

This is now handled by the International Institute for Unification of Private Law (UNIDROIT). 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

If the rules of Private International Laws are unified, it’ll reduce the amount of conflicts which arise when a foreign element is involved. Also the proceedings will be less time-consuming. The proceedings will run smoothly and move ahead in an efficient manner as the Courts would know which law to apply and would not have to spend time on that question. Also, in this era of globalization, unification of rules can bring the entire world on the same platform.

DRAWBACKS AND CHALLENGES

Internal laws of every country are different to each other as per their requirement. But now, the trend which can be observed is that even Private International Laws are very different from one another and not uniform in most of the countries. The foremost challenge in the unification of rules is to make different countries agree to the same rules. Secondly, for obvious reasons every nation would want the rules to be as per their needs. So such circumstances, the requirements of some/many countries may be overlooked even if uniform rules are agreed to. Another major challenge will be to enforce these rules in each and every countries of the world.

Since laws differ from one state to another often times, the conclusions for a defined problem are different, for different states. Now, unification of the internal laws of every country is practically impossible because the internal laws of every country are made only as per the requirements for their society. Therefore, internal laws differ from country to country.

But if rules for private international law are unified then it might 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 among the countries could be brought. Also with the help of unification all the countries could be bought at same platform.

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