IntroductionIntroductionto Polish Private to Polish Private International LawInternational Law

2nd Classes2nd Classes

Dr. Mateusz PilichDr. Mateusz PilichChair of Int’l Private and Trade Law,Chair of Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

Why to Apply Foreign Laws?Why to Apply Foreign Laws?

What if the civil or commercial court What if the civil or commercial court would apply only its own substantive law would apply only its own substantive law ((lex forilex fori)?)?

Justifications for other solutions, e.g.Justifications for other solutions, e.g. comitas gentium comitas gentium – – peaceful coexistence of peaceful coexistence of

states states requires that the court respect foreign requires that the court respect foreign sovereignty as much as possiblesovereignty as much as possible

'acquired rights''acquired rights' doctrine (also the EU law doctrine (also the EU law 'country of origin' principle) – we protect 'country of origin' principle) – we protect parties’ rights and/or statusparties’ rights and/or status

Blueprint of the HistoryBlueprint of the History& Development& Development

of Private International Lawof Private International Law

Old School of StatutesOld School of Statutes

Group of mediaeval and early-modern Roman law Group of mediaeval and early-modern Roman law researchers (until the mid 19th century)researchers (until the mid 19th century) Most of early statutists came from Italy and FranceMost of early statutists came from Italy and France Later the most eminent lived in the Netherlands (Johannes Later the most eminent lived in the Netherlands (Johannes

VVööet, et, Ulrik HuberUlrik Huber)) StatuteStatute = a particular law as in force in a country, = a particular law as in force in a country,

opposed to the universal private (Roman) lawopposed to the universal private (Roman) law Tried to derive the rules of the conflict of laws from the Tried to derive the rules of the conflict of laws from the

ancient texts (ancient texts (Corpus Iuris CivilisCorpus Iuris Civilis)) They used a typical scholastic method of exegesis, not a They used a typical scholastic method of exegesis, not a

modern way of the legal interpretationmodern way of the legal interpretation Justification of the application of the Justification of the application of the territorial lawterritorial law to to

foreignersforeigners

Friedrich Karl von SavignyFriedrich Karl von Savigny

Great German private (civil) lawyer of the 19th centuryGreat German private (civil) lawyer of the 19th century 8th Part of his 8th Part of his System of the Modern Roman LawSystem of the Modern Roman Law (Berlin (Berlin

1840) contained the lecture of the PIL1840) contained the lecture of the PIL ‘‘Invented’ the original (European) method of the conflict of Invented’ the original (European) method of the conflict of

lawslaws The concepts of the ‘seat of a legal relationship’ (The concepts of the ‘seat of a legal relationship’ (Sitz des Sitz des

RechtsverhältnissesRechtsverhältnisses), the ‘international community’ of ), the ‘international community’ of equal equal national lawsnational laws

Abstract rules the object of which consists only in designating Abstract rules the object of which consists only in designating the law of the country applicable to the given private law the law of the country applicable to the given private law relationship (e.g. a contract shall be subject to the law of the relationship (e.g. a contract shall be subject to the law of the country country where the debtor is obliged to performwhere the debtor is obliged to perform))

Pascuale Stanislao ManciniPascuale Stanislao Mancini

Italian researcher, practising lawyer and also a politician Italian researcher, practising lawyer and also a politician in the era of in the era of RisorgimentoRisorgimento

Author of the first modern codification on the Private Author of the first modern codification on the Private International Law (part of the Civil Code for the Kingdom International Law (part of the Civil Code for the Kingdom of Italy of 1865)of Italy of 1865)

Central notion of his whole system was the Central notion of his whole system was the nationalitynationality (personal status, family law, successions)(personal status, family law, successions)

Inspired the efforts in order to codify the PIL in one or Inspired the efforts in order to codify the PIL in one or several international conventions (beginning of the several international conventions (beginning of the HCCH HCCH see next slide) see next slide)

One of the founding fathers of the One of the founding fathers of the International Law International Law InstituteInstitute – a private law association gathering high rank – a private law association gathering high rank researchers of the international (public & private) lawresearchers of the international (public & private) law

Hague ConferenceHague Conferenceof Private Int’l Law (HCCH)of Private Int’l Law (HCCH)

One of leading international (intergovernmental) organizations One of leading international (intergovernmental) organizations developing the PIL and International Civil Proceduredeveloping the PIL and International Civil Procedure

A posthumous child of Mancini, originally a series of diplomatic A posthumous child of Mancini, originally a series of diplomatic conferences (Hague sessions) held since 1893 (conferences (Hague sessions) held since 1893 ( Tobias AsserTobias Asser), ), formally founded in 1955 under the Statute of 1951 (7th formally founded in 1955 under the Statute of 1951 (7th Session)Session)

74 members, incl. Poland and the European Union74 members, incl. Poland and the European Union Selected output:Selected output:

1956 Maintenance Towards Children Convention (later replaced by: 1956 Maintenance Towards Children Convention (later replaced by: 1973 Maintenance Obligations Convention, 2007 Maintenance 1973 Maintenance Obligations Convention, 2007 Maintenance Protocol)Protocol)

1961 Protection of Infants Convention (later replaced by the 1996 1961 Protection of Infants Convention (later replaced by the 1996 Protection of Minors Convention)Protection of Minors Convention)

1961 Form of Wills Convention1961 Form of Wills Convention 1971 Traffic Accidents Convention1971 Traffic Accidents Convention 1961 Abolishing of Legalization of Public Documents Convention1961 Abolishing of Legalization of Public Documents Convention 1980 Int’l Children Abduction Convention1980 Int’l Children Abduction Convention

American Conflict of LawsAmerican Conflict of Laws

US law of conflict of laws: a diverging world of legal notionsUS law of conflict of laws: a diverging world of legal notions Probable reasons:Probable reasons:

Impact of the doctrine of territorialism (Impact of the doctrine of territorialism (Huber, StoryHuber, Story)) Trends towards consolidating problems of jurisdiction and law Trends towards consolidating problems of jurisdiction and law

applicable, the prevalence of applicable, the prevalence of lex forilex fori Most influential theory by Professor Most influential theory by Professor Brainerd CurrieBrainerd Currie (1912- (1912-

1965)1965) Author of ‘Selected Essays on the Conflict of Laws’ (1963)Author of ‘Selected Essays on the Conflict of Laws’ (1963) Doctrine of Doctrine of governmental interests governmental interests – courts have to weigh – courts have to weigh

opposing interests of various coutries in having their laws opposing interests of various coutries in having their laws applied to a caseapplied to a case

Material considerations necessary in order to apply foreign Material considerations necessary in order to apply foreign lawslaws

Values derived from the letter of substantive law decideValues derived from the letter of substantive law decide Importance for the European countries, impact on the PIL Importance for the European countries, impact on the PIL

development (cf. Volken, 1 YPIL [1999] 85 ff)development (cf. Volken, 1 YPIL [1999] 85 ff)

MethodologyMethodologyof the Conflict of Lawsof the Conflict of Laws

Structure of the Conflicts Law Structure of the Conflicts Law RuleRule

Conflict of laws taken as the choice of law (and Conflict of laws taken as the choice of law (and not the jurisdictionnot the jurisdiction): ): focus on thefocus on the indirectindirect legal legal regulationsregulations

Purpose: NOT TO SOLVE THE CASE, just to give Purpose: NOT TO SOLVE THE CASE, just to give the law applicable to a distinct questionsthe law applicable to a distinct questions

Example – Article 11 (1) of the 2011 Law on PIL:Example – Article 11 (1) of the 2011 Law on PIL:A natural person’s legal capacity and capacity to A natural person’s legal capacity and capacity to perform juridical acts (legal transactions)perform juridical acts (legal transactions) is is governed by the governed by the law of his or her nationalitylaw of his or her nationality

"Law of one's nationality" – "Law of one's nationality" – POINTPOINT OF OF CONNECTIONCONNECTION

"Legal capacity", "Capacity to act" – "Legal capacity", "Capacity to act" – OBJECTOBJECT OF OF THE CONNECTIONTHE CONNECTION

Point of ConnectionPoint of Connection(Connecting Factor)(Connecting Factor)

The part of the confict law rule designating the law applicableThe part of the confict law rule designating the law applicable In a typical case: an In a typical case: an abstract abstract charactercharacter They They localize the object of connectionlocalize the object of connection within the sphere of within the sphere of

application of certain national law (e.g. Polish, German, Swiss one, application of certain national law (e.g. Polish, German, Swiss one, etc.)etc.)

Based on personal, objective, or subjective criteriaBased on personal, objective, or subjective criteria PersonalPersonal connecting factors: connecting factors:

nationalitynationality of a natural person of a natural person domiciledomicile (ordinary residence) of a natural person (ordinary residence) of a natural person habitual residencehabitual residence of a natural person of a natural person seatseat of a moral person of a moral person place of incorporationplace of incorporation of a moral person of a moral person

ObjectiveObjective connecting factors, e.g. the connecting factors, e.g. the situationsituation of the immovable of the immovable property or tangible object, the property or tangible object, the place of conclusionplace of conclusion of marriage, etc. of marriage, etc.

SubjectiveSubjective connecting factors – based on the connecting factors – based on the will of a personwill of a person = = choice of law by the interested party/-ieschoice of law by the interested party/-ies

Object of ConnectionObject of Connection(Legal Category)(Legal Category)

Relationship or status which is to be subject to a given law Relationship or status which is to be subject to a given law applicableapplicable

Examples:Examples: "legal incapacitation""legal incapacitation" (Article 13 PILA) (Article 13 PILA) "name and surname of a natural person" "name and surname of a natural person" (Article 15 PILA)(Article 15 PILA) "legal person" "legal person" (Article 17 PILA)(Article 17 PILA) "prescription of a claim" "prescription of a claim" (Article 16 PILA)(Article 16 PILA) "ownership and other absolute property rights" "ownership and other absolute property rights" (Article 41 PILA)(Article 41 PILA) "ability to conclude the marriage" "ability to conclude the marriage" (Article 48 PILA)(Article 48 PILA)

Terms Terms reminding the typical institutions of private (civil & reminding the typical institutions of private (civil & commercial) lawcommercial) law, usually borrowed from the vocabulary of the , usually borrowed from the vocabulary of the legislator's own legal system (here: Polish private law)legislator's own legal system (here: Polish private law)

Obvious problems of conceptual and systematic differences Obvious problems of conceptual and systematic differences between private laws of countries between private laws of countries conflict of characterizationsconflict of characterizations

Various Types of PIL RulesVarious Types of PIL Rules

Basic division:Basic division: unilateralunilateral conflicts law rules conflicts law rules (e.g. in German: (e.g. in German: einseitige Kollisionsnormeneinseitige Kollisionsnormen, in , in

French: French: normes de conflit unilatéralesnormes de conflit unilatérales) – they specify ) – they specify only the only the lex forilex fori (i.e. the (i.e. the court's own law) as applicablecourt's own law) as applicable

bilateralbilateral conflicts law rules conflicts law rules (e.g. in German: (e.g. in German: allseitige Kollisionsnormenallseitige Kollisionsnormen, in , in French: French: normes de conflit bilatéralesnormes de conflit bilatérales) – they may specify any law of any country ) – they may specify any law of any country of the world as applicable (i.e. either lex fori or a foreign law – and hence called of the world as applicable (i.e. either lex fori or a foreign law – and hence called "bilateral")"bilateral")

Complex rules of PIL:Complex rules of PIL: Equal alternative connecting factorsEqual alternative connecting factors: several laws may be applied on an : several laws may be applied on an

equal footing (e.g. Article 1 of the 1961 Hague Form of Wills Convention)equal footing (e.g. Article 1 of the 1961 Hague Form of Wills Convention) Subsidiary alternative connecting factorsSubsidiary alternative connecting factors: basic connection accompanied : basic connection accompanied

by a 'weaker' alternative in order to keep a legal relationship valid (e.g. Article by a 'weaker' alternative in order to keep a legal relationship valid (e.g. Article 49 PILA)49 PILA)

„„Ladder" of connecting factorsLadder" of connecting factors: if the preceding connecting factor does not : if the preceding connecting factor does not fit the facts of the case, the next one steps in (e.g. Article 51 PILA)fit the facts of the case, the next one steps in (e.g. Article 51 PILA)

Thanks for your Thanks for your attention!attention!