The jurisdiction of the Maltese courts and the enforcement of foreign judgements

Abstract

Nowadays no nation can exist without coming into contact with other nations, this evidently gives rise to the fact that despite the existence of several territorial sovereignties there is still a strong interdependence amongst states, resulting with the possibility of encountering situations where it is not clear which law of which country should prevail. In order to cater for such situations, the Municipal systems have developed Private International Law. In fact, Private International Law is that part of law which comes into play when the issue before the Court affects some fact, event or transaction that is closely connected with a foreign system of Law as to necessitate recourse to that system.1 When comparing Private International Law to Public International Law, and bearing in mind the essential features of the subjects, one soon realises that the word International is being used in a different sense in each case. In Public International, Law the word International is precisely referring to the International relationship governed by such law, namely the relationship between States, the relationship inter nationes. On the other hand, the word International as used in Private Inte~tional Law seems to refer to the international tinge given to the subject due to the fact that it mainly governs cases dealing with a foreign element. Therefore, Private International Law is not international in the sense that it regulates matters between states on a supra-national level, but rather it is an entirely Municipal Law system contained within each separate legal unit that concerns itself with those cases which may arise and which contain a foreign element. The most prominent characteristic of Private International Law rules is that they form part of the Municipal Law of each country. Dicey and Morris divide Municipal Law into two branches of law: on the one hand there is a body of rules which regulates the rights of persons domiciled and resident in the particular state, and which determines the legal effect of transactions taking place between these persons within the limits of this territory; on the other hand there are those rules which refer to cases containing some foreign element. These latter rules do not directly determine the rights or liabilities of particular persons, but rather they determine the limits of jurisdiction to be exercised by the States' courts, and also the choice of the body of law, whether domestic law or the law of any foreign country, which the courts should apply to any particular case which may arise, and which contains a foreign element. This second branch of Municipal Law is precisely what we refer to as Private International Law.