Basic concepts & process

Question 1

What is the broad approach for PIL

Answer 1

Exercise domestic jurisdiction & enforcement of foreign judgments

Question 2

What is the classic view of PIL?

Answer 2

• rules applied by domestic courts
• determine which laws apply
• in cases involving people from different countries or different nationalities
• usually where transactions cross international boundaries

Question 3

What is the more expansive view?

Answer 3

It emphasizes development of :

• procedural mechanisms for overcoming divergent rules
• substantive principles of law aimed at promoting harmonization
• codification of legal rules across different legal systems

Question 4

Differentiate between PIL instruments & treaties and conventions

Answer 4

• aim is to regulate relations between private parties & provide resolutions of these disputes
• intended to operate at domestic level
  function to harmonize & unify diverse national laws & practices, facilitate movement of goods, services & people around globe

Question 5

Name 5 venues where harmonization takes place?

Answer 5

1. the Hague Convention
2. UNICITRAL
3. UNIDROIT
4. Organisation of American States
5. European Community

Question 6

Name 5 areas that illustrates PIL development?

Answer 6

1. Family Law
2. Contractual Choice of Courts Agreement
3. Mobilise Asset Partitioning
4. Consumer Protection
5. Transportation law

Question 7

What is the rules for contracting parties choice of courts?

Answer 7

• courts chosen by contracting parties has & must exercise jurisdiction to decide a covered dispute
• court not chosen by parties does not have jurisdiction & should suspend/dismiss proceedings brought
• judgement from chosen court rendered in accordance with agreement must be recognised and enforced

Question 8

Meaning of Lex Causae

Answer 8

The law indicated by relevant conflict rules as governing dispute

Question 9

Meaning of Lex Loci Contractus

Answer 9

Law of place where contract concluded

Question 10

Meaning of Lex Domicilli

Answer 10

Law of place of the domicile

Question 11

Meaning of Lex Loci Celebrationis

Answer 11

Law of place where marriage celebrated

Question 12

Meaning of Lex Loci Delicti Commissi

Answer 12

Law of place where delict committed

Question 13

Meaning of Lex Loci Situs

Answer 13

Law of Place where property situated

Question 14

What is the unilateral conflict rules?

Answer 14

• not recognise equality of legal systems
• shows preference for legal system of their country of origin
• common law not contain unilateral rules
• if using unilateral rules alone have to consider unilateral rules of other countries as well
• indicates when legal system applicable

Question 15

What is the multi-lateral conflict rules?

Answer 15

• 1st time mentioned in Lourens v Van Hohne
• No preference for legal system
• any legal system applied provided connecting factors point to that system
• general or all sided conflict rule
• sources; common law or legislation
• Roodt: MCR focus on the legal relationship & territorial/factual contracts with a given legal system to indicate which domestic law governs the question

Question 16

What is the connecting factor?

Answer 16

Forsyth: connecting factor acts as a sign post for the applicable legal system

Question 17

What is the process for determining the connecting factor?

Answer 17

1. determine category of case
2. refer to applicable conflict rule, which indicate connecting factor, once determined, applicable legal system in terms of which conflict is to be resolved
   - use lex fori determine connecting factor
   - facts localised in a specific part of the world & point to that legal system prevailing in that part of the world
   - can have more than one connecting factor

Question 18

What does country mean in PIL?

Answer 18

Rechtskring: legal unit that forms part of bigger political unit or territory subject to same law & legal system (terratorium legis)

Question 19

What happens where a country is not recognised as state by other country?

Answer 19

STB v Ocean Commodities: rule that SA not recognise laws of unrecognised states is a fundamental legal principle.
Sperling v Sperling: east german matrimonial property laws applied even though not considered separate country
Forsyth: avoid politics wrt PIL & recognised states