Public International Law v Private International Law

Perhaps the only common feature between PIL and PUIL is the transnational element.

PIL like contracts or torts is a branch of the municipal law of every developed legal system. It assists in the adjudication in municipal courts of civil cases which contain a foreign element.

PUIL in contrast is a body of rules which regulates relations between sovereign states and is founded on the consent of states so is universal in character, thus it would be a misnomer to talk about Australian PUIL.

PUIL and PIL are generally related through the r/ship of ML and PUIL e.g service on defendant outside of Australia is in breach of excessive state juris rules in PUIL. Customary InternationalL is the part of PUIL which consists of the practices which sovereign states in their relations with one another consider legally binding.

(a) TRANSNATIONAL LEGAL PROBLEMS: TWO CASE STUDIES

(i) Greek islands cruise case: shipboard entertainment on the "Stella Oceanis"

*Oceanic Sun Line Special Shipping Co v. Fay (1988) 165 CLR 197

Scope of PIL.

Facts - Litigated in NSW. Resident of QLD Mr Fay a veterinarian who booked through a travel agent for a cruise in Pyraes, Greece on the Stella Oceanis operated by Oceanic Sun line. Exchange order which acted as a receipt/ info pass which said would be exchanged for a ticket upon boarding the ship. F threw away the ticket which he didn’t read and ticket stated governing law clause as exclusively Greece and limitation clause of $5000 for damage/injury. Shooting accident occurred onboard and received medical attention in Greece and in Australia. F wanting to bring CL negligence action in tort in NSW (yet there was a relevant connection with other legal system as tort committed on Greek Ship in Greece).
Issue - Q of whether D can be subject to NSW juris. Normally require presence of D in juris or D’s voluntary submission. Statute provides for institution of proceedings outside Australia (UCPR 2005). Issues in ( O v F) juris, possibly could have exercised juris  based on P receiving medical attention in Australia s6 UCPR Para E, (regardless of where the tort was committed then if there has been some tort damage experienced in NSW then originating process can be served on D outside Aus i.e received medical attention in NSW).

Even if order was made in Aus then Q if assets in Aus, commercial reputation in aus or if Greek courts will enforce the judgement. Oceanic can object to exercise of NSW juris (discretionary non-exercise of juris) Aus court may decline to exercise to juris when P has exercised in breach of foreign juris clause or Aus court is clearly inappropriate (forum non-conveniens). (must look at grounds for court in exercising juris)
Oceania applied for a stay of proceedings in Aus as “approach a foreign juris clause with strong bias for giving effect to it”.

Choice of Law in K issue of whether provision on ticket for foreign exclusive juris clause was valid as no consideration (unilateral variation) was given for it yet in Greece did not have this approach to contracts.

Lex fori would determine whether the term of the contract for exclusive juris and HC said not valid so law was law of NSW as subject to law of NSW first.

O had not filed an appearance and only objected to exercise of juris which does not constitute voluntary submission so went back to Greece. F decided then that it woud be very hard for them to have Greek courts recognise judgement (no court around the world would exercise foreign judgements for long arm law).

No fault accident scheme in NZ. The fact that tort occurred in NSW would not be relevant where governing law is of NZ. In EU choice of law in tort the law is of the place of residence of person affected.

Having then dealt with juris, Q of which system of law would then apply.

Need proof of Greek law if need to apply in NSW and evidence that law is different to that of NSW.

Exclusionary doctrines may apply if law is contrary to Aus gov policy or foreign tax/revenue law e.g communal penalty in tort for actions of Husband being imposed on wife.

(ii) Thalidomide case: ‘Distaval’ - "a harmless, safe and effective sedative with no side effects"

*Distillers Co (Biochemicals) v. Thompson [1971] AC 458

Facts - Sleeping tablets used that caused deformities’. P is NSW resident, purchased pills in NSW. First D is English company, got it from German manufacturer. Second D – markets and sells pills in Australia Alleged negligence – failure to warn goods be harmful to woman pregnant in first three months pregnancy
Issue - Where did the tort occur?
Court - Three possible approaches:
Where the entire action occurs in the jurisdiction
Last ingredient for cause occurs in jurisdiction
Act on part of the D gives the P the cause of complaint occurs in the jurisdiction
Preferred choice
The essence of deterring where the tort has been committed – where in substance did the tort arise, look back at the history
Tort was in NSW – lack of communication about the danger – warnings could have been given on packaging in England, warnings could have been made in NSW, cause of action happened in NSW

(b) SOME CONCEPTS AND PERSISTENT ISSUES

“International law is sometimes referred to as ‘public international law’ to distinguish it from private international law. Whereas the former governs the relations of states and other subjects of international law amongst themselves, the latter consists of the rules developed by states as part of their domestic law to resolve the problems which, in cases between private persons which involve a foreign element, arise over whether the court has jurisdiction and over the choice of the applicable law: in other terms, public international law arises from the juxtaposition of states, private international law from the juxtaposition of legal systems.” 

R Jennings and A Watts (eds), Oppenheim’s International Law, 9th edn, 1992, Volume 1, p 5

Q of whether the appropriation of privately owned property is unlawful if owner is not paid promptly.

Issue of Juris and Issue of COL are the focus. PIL may have intra (John Pfeiffer v Rogerson where claim in ACT for tort in NSW) and international connection. Differences in COL for intra disputes are very little. In PIL concerned with legal systems

Private international law is part of municipal or local law in every developed legal system.
The relationship between private international law and public international law.
Country or law area in private international law: a geographical area (not necessarily a sovereign state in the public international law sense) with its own system of private law.

Forum/lex fori: place/law of the place where the court is sitting.

Federal or intranational conflict of laws: the states and territories of Australia as distinct law areas, at least with respect to matters within their legislative competence.
Two persistent issues: choice of law (which country’s law applies?) and jurisdiction (is the defendant subject to the power or authority of the court?)

Places where PIL creeps up are in Marriage, Succession, in property transactions (law is where property is located) etc.

Dicey books (gives full black letter law for PIL). U.S is not a country for private international as no whole group rather it will be (Smith of California v Peters). In Aus all branches of the law are different except Family law so conflicts in intra matters would be (James of NSW v Poulos of Cyprus). In UK conflict of laws issues can arise between Wales, Northern Ireland and Scotland.