ZAFAR & ASSOCIATES - LLP | International Law Services - Pakistan

International law referring to the system of law that binds together nation-states in adherence to recognized values and standards, differing from other legal systems in that it concerns nations rather than private citizens, however, the scope of international law covers the legal disciplines of public international law, private international law and multinational law.

- Public international law, which involves for instance the United Nations, maritime law, international criminal law and the Geneva conventions.

- Private international law or conflict of laws, which addresses the question of which legal jurisdiction cases may be heard in.

- Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

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International Law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of international community in their mutual relations. [ Charles G. Fenwick ]

Public International Law

A modern State cannot lead an isolated life in the present context of world affairs. The more a State is civilized and perfect in its organization, the greater and more intimate shall be its intercourse with other States. This inevitably leads that a government of a State must not only conduct its internal affairs but also regulate its conduct towards the governments and people of other states. Harmony in political ideas, art and literature, scientific discovery, the exchange of embassy for the purpose of carrying on international intercourse and commerce all tend to knit States together in a social bond. Nothing can distort the true picture of conditions and events in this world more than to regards one's own country as the centre of the universe, and to view all things solely in that perspective. The world has shrunk by way of quick communication facilities and expanded in social dimensions. The need of foreign trade further necessitates the maintenance of relations with other States. The increasing global inter-dependence has been the hallmark of the twentieth century. Mutual dependence of nations is a reality that cannot be ignored. The conduct of individuals or subjects of a State is governed by municipal law, while that the States inter se or members of the Family of Nations or the Society of States by International Law.

The development of International Law during the nineteenth and twentieth centuries is attributable to several factors. First, there was an endeavour on the part of nations after the Congress was the first European international assembly which made rules for navigation in international rivers and prescribed ranks and precedence of envoys. Secondly, this period is marked by the conclusion of several law-making treaties, e.g., the Declaration of Paris (1856) embodying the rules for guidance of States when engaged in warfare at sea, the Geneva Convention (1864) for the amelioration of the condition of St. Petersburg (1864) prohibiting the use of explosive bullets in war, the Geneva Convention of 1906 extending the provisions as to sick and wounded in land warfare to maritime warfare, etc.

The Hague Conferences of 1899 and 1907

The work of great international assemblies for the pacific settlement of international disputes- tried to evolve laws for the family of nations as a whole. The first Hague Conference of 1899 evolved a code for land warfare. The second Hague Conference of 1907 adopted conventions dealing with bombardment, the prohibition to bombard undefended habitations, the laying of contact mines, rights, and duties of neutrals in naval warfare, conversion of merchant ships into warships, maritime warfare, military hospital ships, flags of truce, etc. The Permanent Court of Arbitration was established as a result of these conferences.

First World War - Covenant of the League of Nations, 1919

The Treaty of Versailles concluded between the allied and Associated Powers and Germany on June 28, 1919, after the first World War laid the foundation of the League of Nations for the purpose of maintaining international peace and security and the promotion of international co-operation. It appeared at the first sight that with the different organs if the League it would attain the stature of a true international organization that would break the barriers between States and bring about an era of peace and amity. Such hopes, however, were soon belied.

We find that the permanent Court of International Justice was established in 1921 in accordance with the provisions of Article 14 of the Covenant of the League of Nations.

Treaty of Locarno, 1925

It was concluded on November 16, 1925, between France, Great Britain, Germany, Italy and Belgium, whereby Germany, France and Belgium under took to maintain their present mutual frontiers and to abstain from the use of force against each other. Britain and Italy guaranteed the Pact assuring mutual assistance in the event of violation. The treaty emphasized the belief of nations to settle their disputes peaceably in accordance with the covenant of League of Nations. In 1936 Germany renounced this treaty alleging that the mutual assistance pact between France and Soviet Russia was incompatible with the Locarno Pact.

Kellogg - Braind Pact, 1928

Close on the heels of the Treaty of Locarno, an international agreement was signed in 1928 on the initiative of Frank B. Kellogg, U.S. Foreign Secretary, by which almost all the nations of the world condemned was as an instrument of settling international disputes and pledged to settle their differences by peaceful method.

The Geneva Convention, 1929

Representatives of 47 Governments adopted at the instance of the Swiss Government at Geneva Conventions on the Treatment of Prisoners of War and Amelioration of the Conditions of the Wounded and Sick in Armies in the Field. The Convention on Treatment of Prisoners of War prohibited reprisals, cruel treatment of prisoners and collective penalties for acts of individuals. The other Convention granted immunities to medical units and persons engaged in the care of the sick and the wounded.

Codification of International Law

The end of the First World War and the establishment of the League of Nations also witnessed sincere attempts at codification of International Law.

Second World War

The end of the Second World War witnessed birth of another International Organization, viz, the United Nations. Its Charter was signed by fifty States at San Francisco on the 26th June, 1945. The United Nations came into existence on the 24th October, 1945, when the Charter was ratified by the five original members and majority of the other signatories. This world organization is the hope of mankind and contains within itself the germs of the world order based on the idea of One World. It is the foundation upon which the new world based upon the maintenance of international peace and security and promotion of human welfare is to be built.

The Universal Declaration of Human Rights (1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960, the Declaration on the Elimination of all Forms of Racial Discrimination, 1963, and the various Conventions on Genocide and on the Status of Refugees adopted by the U.N. are, in effect, treaties which add to the body of international conduct regulated by law.

The long term talks of building up a world rule of law through conventions, judgments and authorities expositions of the International Court of Justice and codification is being pursued systematically by the U.N.

International Institutions

• The League of Nations

• The United Nations

The Constitution of United Nations

• The General Assembly

• The Security Council

• The Economic and Social Council

• The Trusteeship Council

• The Secretariat

The Law of International Institutions

• The Permanent Court of Arbitration

• The Permanent Court of International Justice

• The International Court of Justice

• New International Economic Order

Private International Law (Conflict of Laws)

The conflict of laws, often called "private international law" comes into operation whenever the English court is faced with a case involving a foreign element. This foreign element may be an event which has occurred in a foreign country, for example an English tourist is injured in a road accident in Spain; it may be the place of business of one of the parties, for example, an English company agrees to purchase computer software from a company incorporated in New York; or it may be a foreign domicile, for example, an Englishwoman marries a man domiciled in Iran.

Classification

There are two types of classification: classification of the cause of action and classification of a rule of law. In relation to the former type, English courts must determine the category to which the dispute in question belongs. Whereas in relation to the latter, English courts must determine whether a particular rule is one of substance or procedure.

It is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdictions law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework and raises issues of the enforceability of standard practices.

There are obvious differences between conflict of laws or private international law and public international law. The latter is primarily concerned with the rules that govern relations between sovereign States and consisting, in general, of customary and treaty rules which bind States in their inter relations. The former, however, is designed to regulate disputes of a private nature. It is that part of municipal law which only comes into play when a dispute has a connection of some kind with one or more foreign legal system. Every modern legal system has its own rules of private international law, and they differ from one another as any other branch of domestic law.

If the parties cannot resolve their differences amicably, then three main types of questions may arise in such cases.

A. Jurisdiction

The first question which has to be decided in a dispute involving a foreign element is whether the English Court has power to hear the case. Should the parties be free to choose the jurisdiction most favourable to their case? This question may arise on following matters:

• Individuals

• Defendant present within the jurisdiction

• Defendant outside the jurisdiction

• Corporations

• Companies and Associations

• Partnerships

• Contract

• Jurisdiction over consumer contracts

• Tort

• Property (Movable and Immovable)

• Intellectual property

• Domicile

• Maintenance

• Trusts

• Salvage

• Jurisdiction in matters relating to insurance

B. Choice of Law

Once the English court has accepted jurisdiction, the next step is to determine what system of law should be applied to the dispute, ie to determine the particular municipal system of law, by reference to which the rights and liabilities of the parties to the dispute must be ascertained. Choice of Law may arise in the following matters:

• Contract

  • Formation of the Contract

  • Offer and Acceptance

  • Consideration

  • Capacity

  • Discharge of the Contract

  • Special Contracts

  • Individual Employment Contracts

• Tort

  • Place of Tort

  • Negligence

  • Defamation

  • Fraudulent Misrepresentation

  • Economic Tort

• Property

  • Immovable Property

  • Tangible movable

  • Intangible movable

  • Succession

  • Immovable

• Domicile

  • Domicile of Origin

  • Domicile of dependency

  • Married woman

  • Domicile of Choice

  • Residence

• Marriage

  • Polygamy

  • Change in the nature of the marriage

  • Capacity of marriage

  • The dual-domicile rule

  • Consanguinity and affinity

  • Re-marriage

  • Consular marriages

  • Marriages of members of forces serving abroad

  • Common law marriages

• Matrimonial Causes and Financial Relief

  • Divorce and Judicial Separation

  • Nullity

  • Void and Voidable marriages

  • Recognition of foreign divorces, legal separations and annulments

  • Financial relief after overseas divorce

C. Recognition and Enforcement of Foreign Judgments

Under what circumstances will the judgment of foreign courts be enforced in England? This type of question arises in the case where the parties litigate abroad. Suppose that a plaintiff, having obtained a judgment against an English defendant in a Turkish court for damages for negligence, decides to enforce it against the defendant's assets in England. Will the England court recognize the Turkish judgment, or will the action have to be re-tried in the English court? Following are the essential requirements for recognizing or enforcing a foreign judgment:

• Jurisdiction of the foreign court

• Residence of the defendant

• Common Law Rules

• The Administration of Justice Act, 1920

• The Foreign Judgments (Reciprocal Enforcement) Act 1933

• Defences

  • Fraud

  • Contrary to natural justice

  • Contrary to public policy

  • Section 32 Civil Jurisdiction and Judgment Act, 1982

• EC/ EFTA Judgments

• Mechanisms for Enforcement

Connecting Factor

In many instances, the English court is faced with a range of choices as to the appropriate law. Let us consider the following examples:

• An English company agrees to buy computer software from a New York company who manufactures them in Spain. The software is to be delivered to the English company's office in Rome;

• An English girl of 15 married an Iranian husband in Iran. Their son is born in England.

In attempting to determine what law governs the above cases, the court seeks guidance from connecting factor, ie the factor which links an event, a transaction or a person to a country. Examples of such factors are:

• Lex loci contractus: the law of the place where the contract was made;

• Lex loci solutionis: the law of the place where the contract is to be performed;

• Lex loci celebrationis: the law of the place where the marriage was celebrated;

• Lex loci delicit: the law of the place where the tort was committed;

• Lex domicilii: the law of the place where a person is domiciled;

• Lex patriae: the law of the nationality;

• Lex situs: the law of the place where the property is situated;

The concept of personal law

Every natural and legal person is assigned a personal law defining his status and capacity. The connecting factor determining one's personal law varies from one legal system to another. For instance, common law systems generally adopt 'domicile' as the relevant connecting factor, civil law systems adopt 'nationality' and Islamic law assigns personal law by reference to 'religion'.

The English conflict of laws is a body of rules whose purpose is to assist an English court in deciding a case which concern respectively:

• the jurisdiction of an English court, in the sense of its competence to hear and determine a case;

• the selection of the appropriate rules of a system of law, English or foreign, which it should apply in deciding a case over which it has jurisdiction (the rules governing this selection are known as 'choice of law' rules); and

• the recognition and enforcement of judgments rendered by foreign courts or awards of foreign arbitration.

Lawyers and their clients often face the prospect of litigation in foreign jurisdictions. The Private International Law Section of the ZA-LLP provides information and assistance to governments, practitioners and members of the public on procedures for transmitting documents for service, taking of evidence for foreign proceedings, the enforcement of foreign judgments and jurisdictional issues.

ZA-LLP also works to promote international cooperation on civil legal procedures and provide information and assistance on a range of private international law matters, including the:

• Service of Foreign Court Process in Pakistan

• Service of Pakistan Court Process Abroad

  The permitted methods for serving Pakistani court documents in a foreign country depend upon:

  • the Court Rules of the relevant Pakistani jurisdiction which regulate service abroad, and

  • the domestic laws of the foreign country.

• Taking of Evidence in Pakistan for use in Foreign Proceedings

• Taking of Evidence in Foreign Jurisdictions for use in Pakistani Court Proceedings

  Our firm is rated consistently as one of the top litigation firms in the world and has successfully represented clients in thousands of jury trials, non-jury trials and arbitrations.

• Arbitration / Disputes

  We are consistently rated as one of the top litigation firms. ZA - LLP serve as client advocates or arbitrators under the following rules of international arbitral institutions:

  • American Arbitration Association (AAA)

  • International Chamber of Commerce in Paris (ICDR)

  • CPR International Institute for Conflict Prevention & Resolution

  • Cairo Regional Arbitration Center

  • Center for Arbitration in Mexico (CAM)

  • Centre for Effective Dispute Resolution (CEDR)

  • China International Economic and Trade Arbitration Commission (CIETAC)

  • Court of Arbitration for Sport

  • Federation International des Ingenieurs et Consuls (FIDIC)

  • Hong Kong Arbitration Center

  • Inter-American Commercial Arbitration Commission (IACAC)

  • International Centre for the Settlement of Investment Disputes at the World Bank (ICSID)

  • International Chamber of Commerce International Court of Arbitration (ICC)

  • Kuala Lumpur Regional Centre for Arbitration (KLRCA)

  • London Court of International Arbitration (LCIA)

  • Singapore International Arbitration Centre

  • Stockholm Chamber of Commerce

  • United Nations Commission on International Trade Law (UNCITRAL)

  • World Intellectual Property Organization (WIPO)

Our Cross-Border Counsel Network

ZA-LLP has developed an extensive network of relationships with firms throughout the world that can assist with "host" country legal issues. As a result, we are able to recommend and work seamlessly with in-country counsel. We invite you to explore our other areas of practice.

Supranational Law

Supranational law is a form of international law, based on the limitation of the rights of sovereign nations between one another. It contrasts to public international law, which involves the United Nations, the Geneva conventions, or the law of the sea because nations expressly submit their right to make decisions on the international playing field to a set of common institutions.

The European Union

The European Union is the first and only example of a supra-national legal framework, where sovereign nations have pooled their authority through a system of courts and political institutions. It constitutes a new legal order in international law for the mutual social and economic benefit of the member states.

They have the ability to enforce legal norms against and for member states and citizens, in a way that public international law does not. According to the European Court of Justice in an early case, it constitutes "a new legal order of international law":

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community."

East Africa Community

There are ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law by 2010.

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