The Structure and Interpretation of Rules of Private International Law

Abstract

Ideally, every individual rule of Private Law should be served by its own rules of Private International Law or it should disclose its territorial or personal limitations.1 The immense variety of rules of substantive law makes this a practical impossibility and the parallel existence of such unilateral rules of Private International Law spread among a multitude of countries would create intractable problems of overlaps and lacunae which only an overriding international system of choice of law could solve. Instead two techniques are employed, one general, one particular. The former is represented by the ordinary rules of Private International Law which may be unilateral by indicating directly only when the lex fori applies, or bilateral by using criteria which lead at times to the application of the lex fori and at times to that of other legal systems. In effect this technique always leads in the end to a system of rules which ensure the application of the lex fori or of foreign law in clearly determined circumstances. The latter is exceptional and is represented by the so-called “spatially conditioned internal rules” 2 or “legislatively localised laws”,3 “particular choice of law rules” 4 or “functionally restricting rules”.5