PIL — Lecture 1: Introduction, Foundations, Sources, and Methods

PRIVATE INTERNATIONAL LAW

Lecture 1: Introduction — Foundations, Sources, and
Methods
School of International Law · 90 minutes · Bachelor Level
🔴 [PAUSE] = pause and look at students 🔵 [SLIDE] = advance slide 📋 = lecturer's note

PART 1 — Opening and Introduction (10 minutes)

1. Opening the Course

Good morning, everyone. Welcome to the course on Private International Law. [SLIDE] My
name is [your name], and over the coming weeks, this course will take you into one of the most
intellectually demanding — and practically important — areas of modern law.

Before we begin, I want to tell you something that may surprise you. [PAUSE] Imagine you are a
lawyer working in Shanghai. Your client is a Chinese tech company. They signed a contract with
a German engineering firm. The contract was negotiated in Singapore, signed electronically, and
is being performed partly in Brazil. Now the German firm claims the Chinese company has
breached the contract. They sue. [PAUSE]

Here is the problem: Which country's law governs this contract? German law? Chinese law?
Singapore law? Brazilian law? Some combination? And in which country's courts should the case
be heard? [PAUSE]

These are not exotic questions. They arise every day — in every major law firm in Beijing,
Shanghai, Hong Kong, Singapore, London, and New York. The lawyer who cannot answer them
cannot serve international clients. Private International Law gives you the tools to answer
them.

1.1 — The Famous Description

Private International Law — also known in the English-speaking world as Conflict of Laws — has
been called 'the higher mathematics of jurisprudence.' [PAUSE] This is not an exaggeration. PIL

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is difficult. It requires mastery of domestic private law — civil law, family law, commercial law,
procedural law. And then it asks you to apply that knowledge across different legal systems
simultaneously.

But there is good news. PIL is also elegant. Once you understand its logic, it gives you a
powerful framework for analyzing almost any cross-border legal problem. And in a world where
China is increasingly central to global trade, investment, and family life, that framework is more
valuable than ever.

1.2 — Structure of Today's Lecture

[SLIDE] Today we cover the foundations. We will ask: What is PIL? Why does it exist? What
does it regulate? Where does it come from? And what tools does it use? By the end of today's
lecture, you will have a complete map of the subject — and we will spend the rest of the course
filling in the details.

PART 2 — What is Private International Law? (15 minutes)

2. Defining Private International Law

[SLIDE] Let us begin with the definition. Private International Law is the branch of law that
governs private legal relationships — civil, family, and commercial — that contain a foreign
element. [PAUSE]

Notice three things in this definition. First: PIL deals with private relationships — between
individuals and companies, not between states. When two states dispute a border, that is public
international law. When a Chinese company and a French company dispute a contract, that is
potentially PIL.

Second: PIL is international in character — it deals with cross-border situations, situations that
touch more than one legal system. But — and this is a crucial point we will return to — PIL itself

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is mostly national law. Each country has its own PIL rules. China's PIL rules are different from
England's PIL rules, which are different from Germany's. [PAUSE]

Third: there must be a foreign element. This is the trigger for PIL. Without a foreign element,
we simply apply domestic law.

2.1 — The Foreign Element: What Is It?

[SLIDE] A legal relationship contains a foreign element when at least one of its components
connects it to more than one legal system. There are three main types of foreign elements:

A foreign subject — one or more of the parties is foreign. A French citizen. A company
registered in Germany. A stateless person. Under the Supreme People's Court Interpretation of
2012 (amended 2020), a relationship is foreign-related if either party or both parties are foreign
citizens, foreign legal persons, or stateless persons, or if either party's habitual residence is
outside China.

A foreign object — the thing at the center of the dispute is located abroad. Real estate in
Australia. A ship registered in Panama. A patent issued in the United States. [PAUSE]

A foreign legal fact — the legally significant event happened in another country. A contract
signed in Switzerland. A car accident in Kazakhstan. A marriage celebrated in France. A person
who died in Japan.

Let me give you a vivid example from everyday life. [PAUSE] A Chinese student studying at the
University of Edinburgh falls in love with a Scottish student. They marry in Scotland according to
Scottish law. They return to China. Three years later, they want to divorce. [SLIDE] Questions
immediately arise: Is the marriage recognized in China? Under which law? Which court has
jurisdiction over the divorce? What law governs the division of their property?

Each of these questions is a PIL question. And as you will see, the answers are not always the
same across different countries.

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2.2 — Why PIL Exists: The Problem of Legal Pluralism

[SLIDE] PIL exists because of a fundamental feature of our world: there are approximately 200
legal systems on earth, and they are all different. [PAUSE]

Different countries have different rules for marriage, contract, inheritance, liability. What is
legal in one country may be illegal in another. What creates a valid contract in China may not
create a valid contract in the United States. The age at which a person is considered an adult
differs across systems. The rules for property ownership differ. The rules for who can inherit
differ.

When a legal relationship crosses borders, a court must decide: which of the potentially
applicable legal systems should govern this dispute? That decision cannot be arbitrary. It must
follow principled rules. Those rules are PIL.

And here is the practical dimension: [PAUSE] if there were no PIL rules, international commerce
would become impossible. Every international contract would be uncertain. Every international
marriage would be legally precarious. Every cross-border investment would carry unpredictable
legal risk. PIL provides the predictability and certainty that international private life requires.

PART 3 — The Nature of PIL: National or International? (10 minutes)

3. The Dual Nature of PIL

[SLIDE] Here is a paradox that students often find puzzling. Private International Law has
'international' in its name — but most of it is national law. How can that be? [PAUSE]

3.1 — PIL as National Law

Each state creates its own conflict-of-laws rules. China has its own. The United Kingdom has its
own. Germany has its own. The United States — famously — has fifty different systems at the

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state level, with federal overlay. These rules are part of each state's domestic legal system.
Chinese courts apply China's PIL rules; English courts apply English PIL rules.

China's primary PIL framework is found in the Law on the Application of Law for Foreign-
Related Civil Relations of 2010 — which was incorporated as a standalone statute alongside the
Civil Code adopted on 28 May 2020, effective 1 January 2021. [SLIDE] The 2010 Law, now
supplemented by the Supreme People's Court Interpretations of 2012 (amended 2020),
provides China's conflict-of-laws rules for civil status, family, property, contracts, torts,
intellectual property, and more.

China — Law on the Application of Law for Foreign-Related Civil Relations, Article 1 (2010):

"This law is formulated with a view to specifying the laws applicable to foreign-related civil relations,
resolving foreign-related civil disputes fairly and safeguarding the legitimate rights and interests of
the parties."

3.2 — PIL as International Law

[SLIDE] At the same time, PIL has a genuinely international dimension. States have negotiated
many multilateral treaties that unify conflict-of-laws rules across countries. If two states both
ratify the same PIL convention, their courts will apply the same conflict rules — even though
each court is still applying 'its own' law.

The most important international organizations in PIL are the Hague Conference on Private
International Law — which China joined in 1987 — and UNCITRAL, the UN Commission on
International Trade Law. UNIDROIT also produces significant instruments for international
commercial law.

Some conventions create uniform substantive rules that bypass the conflict-of-laws question
entirely. The most important example is the Vienna Convention on Contracts for the
International Sale of Goods — CISG — of 1980, which China ratified in 1988. [PAUSE] When
the CISG applies, you do not need to ask 'which country's law governs this contract?' — the
CISG answers the substantive questions directly.

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PART 4 — History and the Modern Context (10 minutes)

4. A Brief History — and Why PIL Matters More

Now Than Ever

[SLIDE] PIL is old. The first conflict-of-laws questions emerged in northern Italy in the 13th
century — when the revived study of Roman law met the reality of merchants trading between
independent city-states like Venice, Genoa, and Florence. A Florentine merchant dealing with a
Venetian trader asked: whose law governs our contract? The early jurists called glossators
began developing answers. [PAUSE]

In the 17th century, the Dutch jurist Ulrich Huber formulated the theory of comity — the idea
that states, as a matter of courtesy and mutual benefit, recognize and apply each other's laws.
This remains one of the foundational justifications for PIL today.

In the 19th century, the German scholar Friedrich Carl von Savigny introduced the most
influential systematic theory: each legal relationship has a 'seat' — a natural home in a
particular legal system — and courts should apply the law of that seat. This idea underlies much
of modern PIL, including the closest connection test found in Chinese law and in the Rome
Convention of the European Union.

And today? [SLIDE] [PAUSE] The scale of cross-border private life is unprecedented. There are
over 1.2 billion international migrants worldwide. China alone had over 190 million internal
migrants and tens of millions of Chinese citizens living, working, and studying abroad. Chinese
companies have invested in over 170 countries. China is the world's largest trading nation.

Every one of these situations potentially generates PIL questions. Marriage, divorce, adoption,
inheritance, contracts, torts, intellectual property — all of these areas of private law now
routinely cross borders. The lawyer who does not understand PIL is a lawyer who cannot serve
the modern world.

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PART 5 — Sources of Private International Law (15 minutes)

5. Sources of PIL: Where Do the Rules Come From?

[SLIDE] PIL rules come from several different sources. Understanding the hierarchy of these
sources — which overrides which — is essential for practical application. [PAUSE]

5.1 — National Legislation

The primary source of PIL in most countries is national legislation — statutes enacted by
parliaments or legislatures. In China, the foundational document is the Law on the Application
of Law for Foreign-Related Civil Relations (2010), supplemented by the Civil Code (2021) and
several Supreme People's Court Interpretations.

In Russia, the PIL rules are codified in Section VI of the Civil Code of the Russian Federation
(Articles 1186–1224), covering applicable law for foreign-related civil relations. In Germany, PIL
is found in the Introductory Act to the Civil Code (EGBGB), now largely replaced by EU
regulations. In England, PIL developed primarily through case law — judicial decisions — with
legislation playing a secondary role.

This difference is significant. [PAUSE] Chinese students trained in the civil law tradition will find
Chinese and European PIL quite familiar in style. English PIL, developed through centuries of
common law reasoning, feels very different — more flexible, more case-by-case, but also less
predictable.

5.2 — International Treaties

[SLIDE] International treaties are the second major source. They come in two varieties.

Conflict-of-laws treaties establish uniform rules for selecting the applicable law. The Hague
Conference has produced many of these — on marriage, adoption, child abduction,

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maintenance obligations, and more. When China and another state are both parties to such a
treaty, the treaty rules override domestic conflict rules.

Material (substantive) treaties go further — they create uniform substantive rules that apply
directly to the relationship, bypassing the need for conflict-of-laws analysis. The CISG is the best
example. [PAUSE]

CISG — Article 14 (definition of an offer):

"A proposal for concluding a contract addressed to one or more specific persons constitutes an offer
if it is sufficiently definite and indicates the intention of the offeror to be bound in case of
acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes
or makes provision for determining the quantity and the price."

Notice what the CISG does: it defines 'offer' directly, in uniform language applicable in all 97
contracting states. A Chinese seller and a German buyer dealing under the CISG do not need to
ask 'which country's law defines an offer?' — the CISG defines it for them. [PAUSE]

China ratified the CISG in 1988 with one reservation: China excluded Article 11, which permits
oral contracts. Chinese law requires written form for many commercial contracts, and China
preserved that requirement.

5.3 — Judicial Decisions and Soft Law

[SLIDE] In common law systems — England, the United States, Australia, Hong Kong — judicial
decisions are themselves a primary source of PIL. Courts develop conflict-of-laws rules through
decided cases, and those rules bind future courts under the doctrine of precedent (stare
decisis).

In China, Supreme People's Court Interpretations play a role somewhat analogous to binding
precedent. They are not cases in the common law sense, but they are authoritative guides to
how courts should apply PIL statutes. The 2020 Amendment to the SPC Interpretation on
Foreign-Related Civil Relations is the most current guidance. [PAUSE]

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Finally, soft law — non-binding instruments — plays an increasingly important role. The
UNIDROIT Principles of International Commercial Contracts (2016 edition) are not legally
binding, but parties frequently choose them to govern their contracts, and arbitrators often
reference them. The INCOTERMS published by the International Chamber of Commerce define
trade terms used in millions of contracts worldwide.

PART 6 — Norms in PIL: Conflict Rules and Substantive Rules (20 minutes)

6. The Two Types of Norms in PIL

[SLIDE] This is the most important analytical section of today's lecture. PIL contains two
fundamentally different types of legal norms, and understanding the difference between them
is the key to understanding how PIL works in practice. [PAUSE]

Think of it this way: when you face a cross-border legal dispute, you have two tools. The first
tool says: 'find the right legal system and apply it.' The second tool says: 'here is the direct
answer — apply this rule.' The first is the conflict-of-laws norm; the second is the substantive
norm.

6.1 — Conflict-of-Laws Norms (Connecting Norms)

[SLIDE] A conflict-of-laws norm (also called a collision norm or choice-of-law rule) does not
answer the substantive question directly. It does not say 'the contract is valid' or 'the defendant
must pay compensation.' Instead, it designates which legal system should provide the answer.

Every conflict-of-laws norm has two parts: [PAUSE]

The scope (also called the scope of application or category): This describes the type of
legal relationship addressed. For example: 'obligations arising from tort' or 'the formal
validity of a contract' or 'the legal capacity of a natural person.'

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The connecting factor (also called the point of attachment): This is the element that links
the relationship to a specific legal system. Common connecting factors include: the place
where an act occurred (lex loci), the nationality of a person (lex patriae), the habitual
residence of a person (lex domicilii), the location of property (lex situs), the place of a
court (lex fori), and the law chosen by the parties (lex voluntatis). [PAUSE]

Let me show you how this works in practice with two examples — one from China, one from the
common law tradition.

China — Law on Application of Law for Foreign-Related Civil Relations, Article 44:

"Tort liability shall be governed by the law of the place where the tort occurs. Where both parties
have their habitual residence in the same country, the law of that country may be applied. If the
parties may also choose the applicable law after the tort occurs."

Let us trace the logic of this norm. [PAUSE] The scope is: 'tort liability' (obligations arising from
wrongful acts). The primary connecting factor is: 'the law of the place where the tort occurs' —
this is the traditional rule, known by its Latin name *lex loci delicti*. But the norm goes further:
it provides a secondary rule (same habitual residence) and allows party autonomy after the
event. This is a modern, flexible norm.

Now compare this with a famous English common law case. [PAUSE]

⚖ CASE: Babcock v. Jackson, 12 N.Y.2d 473 (New York Court of Appeals, 1963)
Facts Georgia Babcock and her friend William Jackson, both residents of New York, set
off for a weekend trip to Canada. Jackson was driving. In Ontario, the car left the
road and Babcock was injured. Under Ontario law, a guest passenger could not
sue the driver. Under New York law, she could. Babcock sued Jackson in New York.
Held The New York Court of Appeals rejected the traditional lex loci delicti rule (Ontario
law). Judge Fuld held that New York law applied because New York had the most
significant relationship to the parties and the occurrence. Both parties were from
New York, the trip started and was to end in New York, and Jackson's car was
insured in New York.
Why it matters Babcock is the landmark case that triggered the 'conflict of laws revolution' in the
United States — abandoning rigid territorial rules in favour of interest analysis and
the 'most significant relationship' test. The same flexible approach underlies
China's 'closest connection' rule in Article 2 of the 2010 Law.

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6.2 — Types of Connecting Factors

[SLIDE] Let us now look systematically at the most important connecting factors, because you
will encounter them in every PIL topic throughout this course. [PAUSE]

Connecting Factor What It Means Typical Use Chinese Law Example

Lex loci (place of act) Law of the country Torts, contracts, Art. 44: tort = place of
where an act occurred marriage formalities tort
Lex domicilii / habitual Law of the country Personal status, family Art. 11: legal capacity =
residence where person habitually law, succession habitual residence
lives
Lex patriae (nationality) Law of the country of Personal status (civil law Less used in China;
citizenship tradition) habitual residence
preferred
Lex situs (location of Law of the country Immovable property Art. 36: immovable
property) where property is (mandatory) property = place of
located location
Lex voluntatis (party Law chosen by the Contracts (party Art. 41: contracts —
choice) parties autonomy) parties may choose
Lex fori (court's own Law of the court hearing Procedural matters, Procedural issues always
law) the case public policy governed by lex fori
Closest connection Law of the country most Default / fallback rule Art. 2: 'most closely
closely connected connected' as default

6.3 — Substantive (Material) Norms

[SLIDE] The second type of PIL norm is the substantive norm — also called the material norm.
Unlike conflict rules, which point to a legal system, substantive norms directly regulate the
relationship. They give you the answer without requiring you to first find the applicable law.
[PAUSE]

We have already seen the best example: the CISG. When the CISG applies to a contract, it
defines offer and acceptance, governs breach and remedies, and allocates risk — all directly,
without reference to any national law.

Another example is the Hague Convention on the Civil Aspects of International Child
Abduction (1980), to which China acceded in 2023. When a child is wrongfully removed from

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their country of habitual residence, the Convention provides a direct rule: return the child
promptly, unless narrow exceptions apply. The court does not need to determine which
country's family law governs — the Convention provides the rule directly.

6.4 — A Key Classification: Dispositive vs. Imperative Norms

[SLIDE] Within both categories, PIL norms can be dispositive (default rules that parties can
change by agreement) or imperative (mandatory rules that apply regardless of what the parties
agree). [PAUSE]

The most important dispositive principle in international commercial PIL is party autonomy —
the freedom of parties to choose which law governs their contract.

China — Law on Application of Law for Foreign-Related Civil Relations, Article 41:

"The parties may explicitly choose the law applicable to a contract. In the absence of such choice, the
law of the habitual residence of the party whose performance best reflects the characteristic
performance of the contract, or other law most closely connected with the contract, shall apply."

This is the global standard. English law goes even further — English law is the most frequently
chosen governing law for international commercial contracts in the world, precisely because of
its flexibility, predictability, and the depth of English commercial case law. [PAUSE]

Imperative norms, by contrast, cannot be displaced by party agreement. The most important
example in Chinese law:

China — Law on Application of Law for Foreign-Related Civil Relations, Article 36:

"The law of the place where the immovable property is situated shall apply to rights over immovable
property."

Land in China is always governed by Chinese law. Full stop. No choice of law clause can change
this. This is an imperative norm. [PAUSE]

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PART 7 — Methods of PIL and Key Concepts (10 minutes)

7. Methods of PIL and Foundational Concepts

7.1 — The Conflict Method vs. The Material Method

[SLIDE] PIL uses two main methods to resolve cross-border legal problems. [PAUSE]

The conflict method (also called the bilateral or choice-of-law method) is the traditional
approach. You analyze the relationship, identify its connecting factors, apply the relevant
conflict-of-laws norm, and find the applicable legal system. Then you apply that system's
substantive law.

The material method bypasses this analysis. You apply an international instrument — like the
CISG — that gives you the substantive answer directly. This method is faster and more uniform,
but it is only available where an applicable international instrument exists.

In practice, modern PIL uses both methods. For international sales contracts involving CISG
states, the material method applies first. For matters not covered by any convention — such as
most family law or succession questions — the conflict method applies. [PAUSE]

7.2 — Party Autonomy and Its Limits

[SLIDE] We have seen that parties to a contract can choose the governing law. But this freedom
has important limits. [PAUSE]

First, parties cannot choose a law to escape mandatory rules — the imperative norms of the
legal system most closely connected to the dispute. Under Article 5 of the Rome I Regulation
(EU), certain mandatory provisions of the consumer's home country apply regardless of any
choice of law clause. China's SPC Interpretation, Article 11, provides that if a party deliberately

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creates a foreign element to circumvent China's mandatory rules, Chinese courts will disregard
the foreign law choice.

Second, parties cannot choose a law that violates public policy — the *ordre public* exception.
This is perhaps the most important safety valve in PIL. [PAUSE]

⚖ CASE: Hilton v. Guyot, 159 U.S. 113 (U.S. Supreme Court, 1895) — The Foundation of Foreign
Judgment Recognition
Facts Guyot, representing a French firm, obtained a judgment in French courts against
Hilton and Libbey, American businessmen trading in Paris. Guyot then sought to
enforce the French judgment in U.S. federal courts in New York. The Americans
argued that French courts should not be trusted and that the case should be
retried on the merits.
Held Justice Gray, writing for a 5–4 majority, held that foreign judgments should be
given effect under the doctrine of 'comity of nations' — but only where there is
reciprocity. Because French courts did not give conclusive effect to American
judgments, U.S. courts need not give conclusive effect to French judgments. The
French judgment was treated as prima facie evidence only, not as final.
Why it matters Hilton established the foundational vocabulary of PIL: 'comity,' 'reciprocity,' and
'public policy' as limits on recognition of foreign judgments. These concepts
remain central today. In China, the Civil Procedure Law (2024 amendment,
effective 1 January 2024) now provides for recognition and enforcement of
foreign judgments based on reciprocity, treaty, or 'appropriate connection' —
reflecting the same balance struck in Hilton.

7.3 — The Public Policy Exception

[SLIDE] Every PIL system includes a public policy exception — sometimes called by its French
name *ordre public*. This is a safety valve: even if a conflict rule designates foreign law as
applicable, a court may refuse to apply that foreign law if doing so would violate the
fundamental values of the forum state. [PAUSE]

The Chinese version is found in Article 5 of the 2010 Law:

China — Law on Application of Law for Foreign-Related Civil Relations, Article 5:

"Where the application of foreign law will harm the social and public interests of the People's
Republic of China, the law of the People's Republic of China shall be applied."

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The public policy exception must be used sparingly. If every court refused to apply foreign law
whenever it was 'different' from domestic law, the entire system of PIL would collapse —
because all foreign laws are, by definition, different. The exception is reserved for truly
fundamental violations: laws that condone slavery, laws that criminalize religion, laws that deny
basic human dignity. [PAUSE]

PART 8 — Conclusion, Summary, and Discussion (10 minutes)

8. Conclusion and Key Takeaways

[SLIDE] Let me bring today's lecture to a close with a summary of the five most important
points. [PAUSE]

First. Private International Law governs private legal relationships that contain a foreign
element. Its purpose is to provide principled rules for deciding which country's law applies —
and which country's courts may hear the case — when more than one legal system is potentially
relevant.

Second. PIL has a dual nature. It is mostly national law — each country develops its own conflict
rules. But it also has an international dimension, through multilateral conventions, Hague
Conference instruments, and substantive treaties like the CISG. [PAUSE]

Third. PIL uses two types of norms: conflict-of-laws norms (which select the applicable legal
system) and substantive norms (which provide direct answers). Understanding this distinction is
the key to PIL analysis.

Fourth. The most important connecting factors are: habitual residence, lex loci (place of act), lex
situs (location of property), party autonomy (for contracts), and the closest connection test as a
default. [PAUSE]

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Fifth. PIL is practical. It is not an academic exercise. It is the daily work of lawyers advising
multinational clients, judges deciding cross-border disputes, and negotiators drafting
international contracts. For a lawyer trained in China — a country at the center of global trade
and investment — PIL is not optional. It is essential.

8.1 — Questions for Discussion

[SLIDE] Before we close, let me pose three questions for discussion. These correspond to the
examples in your reading materials. [PAUSE]

Question 1. A Chinese company enters into a contract with a German company.

Negotiations were conducted in Singapore, the contract was signed in Switzerland,
performance takes place in Brazil. Which law applies to the contract? Start with Article 41
of China's PIL Law — what does it tell you? What would a Chinese court do if the parties
made no choice? [PAUSE]

Question 2. Two Chinese citizens marry in France according to French formalities. They
later return to China. Is their marriage valid in China? Which law determines the formal
validity of a marriage? Look at Article 21 of China's PIL Law — what connecting factors
does it provide? [PAUSE]

Question 3. Think about the Babcock v. Jackson case we studied. If this accident
happened today and both parties were Chinese citizens living in Beijing who drove into
Kazakhstan for a holiday — and Kazakhstan had the same 'no guest passenger liability'
rule — what would a Chinese court do? Would it apply Kazakh law? [PAUSE]

8.2 — Recommended Sources

[SLIDE] For further reading and preparation for the next lecture, I recommend the following:

Primary Sources: The Law on the Application of Law for Foreign-Related Civil Relations
(2010); the SPC Interpretation (2020 Amendment); the CISG text with China's reservation;
the Civil Procedure Law (2024 amendment on foreign-related disputes).

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International: The Hague Conference website ([Link]) contains all conventions

and their ratification status. UNCITRAL ([Link]) contains CISG materials and
model laws.

Scholarship: Prof. Huang Jin (China); Prof. Symeon Symeonides, *Codifying Choice of Law
Around the World* (Oxford); Adrian Briggs, *The Conflict of Laws* (Oxford, 4th ed.) for
the English common law perspective.

Thank you. See you at the next lecture.

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