Private International Law, Its Scope, And Examples Of Cases Related To Objects

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JAKARTA - Prof. JG Sauveplanne expresses the opinion that International Private Law or Internationale Privaat Recht (Nederlandse) is the whole of the rules governing civil law relations which contain international elements and legal relations that have links with foreign countries.

Meanwhile, one of the legal experts, Sudargo Gautama, explains International Civil Law as a whole rule and legal decision that shows which legal system applies or whether it is legal, if the relationships or events between citizens (citizens) of the country at a certain time show points of connection with systems and legal rules of two or more different countries in the sphere of power of place, person, and matter.

Because the core of Civil International Law is the interaction of the international community, HPI can also be said to be the Law of International Relations.

So what is said to be international is the relationship, while the HPI principles remain in the form of national civil law. Thus, each country around the world has its own HPI, so that we will get to know the Indonesian HPI, the German HPI, the British HPI, the Dutch HPI, and others.

Within the Indonesian HPI itself there has been a clash of terms (Contraditio in Termins), in other words as if there is civil law that applies in all countries even though the civil law (HPI) applies in Indonesia.

Whereas HPI is a national law, while the international one is its relationships or events. It is called international because in this legal relationship / event it contains a foreign element.

HPI functions and roles

The development of Civil International Law is based on the fact that there is a coexistence of various legal systems in the world that are equal. Every law maker and enforcer in a country basically forms laws according to the situation or context prevailing in their country.

However, sometimes there are legal events that show a connection or relevance to more than one legal system of countries. If this fact is related to the HPI material, certain problems will arise to become the main problems in studying HPI, including:

a. Which judge or judicial body has the right to resolve juridical matters that contain foreign elements;

b. Which law should be enforced to regulate and / or resolve juridical matters that contain foreign elements; and

c. When or to what extent a court must pay attention and recognize legal rights or obligations that are issued based on the law or the decision of a foreign judge.

Scope of Private International Law a. HPI as Rechtstoepassingsrecht (the narrowest)

Private International Law is only limited to legal issues in force (rechtstoepassingrecht). The discussion here is limited to issues relating to the law that must be implemented. Other matters relating to the competence of judges, status of foreigners, and citizenship are not included in the HPI field. This kind of system is adopted by the German and Dutch HPIs.

b. HPI as Choice of Law + Choice of Jurisdiction (wider)

According to this system, HPI is not only limited to issues of conflict of law (to be precise choice of law), but also includes issues of conflict of jurisdiction (to be precise choice of jurisdiction), namely issues related to the competence or authority of judges. So HPI does not only concern legal matters, but also the authority of elected judges. This broader HPI system is known in Britain, the United States, and other Anglo Saxon countries.

c. HPI as Choice of Law + Choice of Jurisdiction + Condition des Etrangers (more broadly)

In this system, HPI is not only about the issue of choice of law and choice of forums or judges, but also regarding the status of foreigners (condition des etrangers = statuutlingen = statuut). This kind of system is known in Latin countries, including Italy, Spain and South American countries.

d. HPI as Choice of Law + Choice Jurisdiction + Condition des Etrangers + Nationalite (the widest)

According to this system, HPI deals with issues of choice of law, choice of forums or judges, status of foreigners, and citizenship (nationalite). This citizenship issue concerns the issue of obtaining and losing citizenship. This very broad system is known in the French HPI, and is shared by most of the HPI authors.

Examples of international civil law regarding objects

International Civil Law regarding objects can be illustrated by the following case examples:

A sale and purchase contract occurs between an export company from Indonesia and an importer company in the US state of Florida. The contract requires that the goods that have been ordered be transported from the Tanjung Perak port of Surabaya to Miami Florida. The agreement was made in Jakarta. When the goods are ready to be shipped, it turns out that the importer has not carried out his promise to make payment at the specified time. Furthermore, the Indonesian exporter intends to file a default suit and demand compensation through a court in the city of Miami, Florida.

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