3.Nature

The nature of private international law has aroused hot debate over centuries among the scholars across the globe.So far,there are three major streams of legal thought on this issue.One group of scholars regards private international law as a part of international law,claiming that its norms are uniform,universal and obligatory for all states.This stream of legal thought in private international law is called “universalism” whose leading advocates are F.von Savigny and P.S.Mancini.

The second group of scholars,such as F.Kahn,M.Wolff and A.V.Dicey,maintains the view that each state creates its own unique norms of private international law pursuing its own policy.^[3]This theory is called “particularism” in private international law.

The last group of researchers such as Z.Zitelmann and R.Bystricky,believes that private international law regulates both domestic and international legal relations whose sources include not only domestic law but also international conventions and customs; therefore,they argue that private international law is of both internal and international nature.This theory is called “dualism” in private international law.18

Chinese scholars approach this issue from the perspective of historical materialism who believe in an evolutionary process,by virtue of which private international law has been progressing from internal law to international law.They argue that there exists indeed solid historical evidence in support for their proposition,in that in earlier period private international law was composed of conflict rules in domestic legislation which was undoubtedly internal law in nature; and only after the 17th century,when international conventions and customs gradually became the sources of private international law,did scholars have disagreements on the nature of the discipline.Within such a setting,they submit that the determination of the nature of the discipline is to spell out the specific stage where modern private international law is situated in its evolutionary process.(https://www.daowen.com)

In this light,most Chinese scholars conclude that private international law at the current stage is a blend of internal and international law which manifests a marked tendency that its international element is being reinforced,notwithstanding the fact that its sources are primarily domestic legislation and case law.19

This leads to another question,that of the relationship between private international law and public international law,or,as the latter is always shortly called “International Law” (droit des gens,völkerrecht).It is commonly believed that public international law is principally concerned with the relations between states,and the sources of public international law are normally said to have been set out in Art 38(1) of the Statute of the International Court of Justice 1945;20 while private international law is designed to regulate disputes of a private nature,notwithstanding that one of the parties may be a sovereign state.In the most general terms,private international law is the body of law which comes into operation whenever a municipal court is faced with a claim that contains a foreign element.21 In this light,private international law and public international law are two distinct branches of law.

Nevertheless,it would be a fallacy to regard private and public international law as totally unrelated.Some principles of law,such as requirements of equity and justice are common to both; some rules of private international law,as,for instance,the doctrine of the “proper law” of a contract,have been adopted by a court in the settlement of a dispute between sovereign states; equally,some rules of public international law,say,sovereign equality,are applied by a municipal court when hearing a civil case containing a foreign element.22