Chapter 1- Introduction Flashcards
What is the difference between Private International Law and Public International Law?
1) Public international Law
- Deals with custom and treaties which govern the relationship between states, and in principle, has the same content internationally.
2) Private International law
- Regulates relations between persons (natural, juristic and states/public entities acting in private law capacity).
- Forms part of National legal system (i.e. SA PIL= SA Law) and differs from state to state, although there are attempts to standardize PIL by treaties between states.
Why is the term Private International Law misleading?
Private International Law does not form part of International Law (aka, Public International Law).
What is the main question with PIL?
Which legal system applies, i.e. What is the lex causae (applicable legal system)?
Where does PIL fit in?
PIL is part of SA private law.
What is PIL also known as?
1) Based on RD law= Conflict of Laws;
2) Scotland= International Private Law;
3) Choice of Law or Conciliation of Laws;
4) Afrikaans- Internasionele Privaatreg;
5) Germany- Internationales Privatrecht (IPR);
6) France- Droit International Prive (DIP);
7) Spain- Derecho Internacional Privado (DIP).
What are the sources of PIL?
1) Common law;
2) Case law;
3) SA authors;
4) Constitution;
5) Foreign Case Law and Authors;
6) Considerations of Justice and Convenience;
7) English PIL;
8) International Conventions and Model laws.
- There is NO statute or act that regulates PIL.
Which RD authors influenced our PIL?
Roman Dutch Law authors:
1) P Voet: De Statutis;
2) J Voet: Commentarius ad Pandectas;
3) Huber: De Conflictu Legum;
4) Van Bÿnkershoek;
5) Van der Keesel.
What is the most NB source of PIL?
SA case law.
What SA authors influenced PIL?
1) Kahn
2) Forsyth
3) Edwards
(Cases that accepted authors writings: Vitt, Esterhuizen and Lloyds case)
What Foreign cases and authors influenced PIL?
Foreign case law and authors mainly refers to English Law
- SA PIL= mixed system: RD and English law.
Cases= Dhansay case and Laurens case.
Authors= Dicey, Morris and Collins (textbook= Conflict of laws)
What Considerations of Justice and Convenience influenced SA PIL?
Applied in new types of cases- ie: res integra/ res nova
- Frankel and Sperling cases.
How has English PIL influenced SA PIL?
The Admiralty Jurisdiction Regulation Act 105 of 1983:
- The Act deals with Maritime matters,
However; Section 6 is relevant to PIL.
The Act distinguishes between 2 types of matters:
1) Matters where admiralty courts had jurisdiction:
- Then Eng Law applies (incl Eng PIL)
- Provided that it can be applied as it was on 1 November 1983.
2) Other Matters:
- Then RD law applies (as it applies in SA law)
What International Conventions and Model Laws influence SA PIL?
Section 231(4) of the Constitution - Such conventions and model laws only apply once they are incorporated into SA law, (if not incorporated, then they don't apply).
How do you deal with a PIL case?
Stages in the Choice of law process:
1) Internal Jurisdiction (law of civil procedure);
2) Classification
- E.g. intestate succession law.
3) Find connecting factor:
- RD/ SA case law: domicile of deceased at time of death
- Interpretation of connecting factor: lex fori (exception: nationality)
4) Determine lex causae:
- Law of place of domicile of deceased at time of death (lex ultimi Domicilii)
5) Determine the content of the lex causae.
How do you prove Foreign Law?
1) Judicial Notice:
- Law of Evidence Amendment Act
- Harnischfeger Corporation case:
Case is about practical access a court has to authoritative sources of foreign law.
Court is likely to take judicial notice of:
- English law;
- Commonwealth (Canada, Australia, India);
- Neighboring countries law (except Mozambique).
2) Expert Evidence:
- Most common way;
- Normal rules of expert evidence apply.
- Atlantic Harvesters of Namibia case:
Court stated that expert evidence must be given by a practitioner of that foreign court. - Laurens and Tomlinson cases:
Courts stated that the expert evidence could be given by any person who is an expert on that foreign law (so foreigner or SA person).
3) Submission of an Act:
Ie- counsel hands court a copy of foreign legislation.
- Standard Bank case:
Court held that submission of foreign legislation allowed, however, must be interpreted against background of RD law?
- Hassan case: Confirmed principle (Law of Scotland submitted to court).
- Parry case:
Copy of Botswana Act from internet insufficient.
