Private International Law Sciences Po Paris Spring 2017

1. Private International LawSciences Po ParisSpring 2017 PIL for property law Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

2. Forum – immovable property I • Norwegian buyer • Immovable property in Italy • The buyer does not pay the whole price • Seller sues the buyer to obtain payment • Which court is competent?

3. Forum – immovable property II • Norwegian buyer • Immovable property in Italy • The buyer claims the contract is invalid • Which court is competent?

4. Forum – immovable property III • Norwegian buyer • Immovable property in Italy • The property has a negative easement to prevent blocking the seller’s neighbouring property’s view • The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer • Which court is competent?

5. Qualification I • Disputes on performance or validity of a contract having as its object immovable property: relate to contract • Defendant’s forum • Place of performance • Place of branch • Agreed forum

6. Qualification II • Disputes on the existence, extent or performance of a property right (right in rem) in immovable property: • Exclusive forum

7. Forum – property rights in immovables • Art. 24.1 Brussels I, art. 22.1 Lugano: rights in rem in immovable property: • The court of the member state where the immovable property is located • Exclusive jurisdiction

8. Forum – property rights in movables • Norwegian debtor • English creditor • Floating charge over all debtor’s assets • Dispute about floating charge’s validity • Jurisdiction clause in contract: London • Which court is competent?

9. No separate category for movable property • Even though dispute regards property rights, the jurisdiction rules for contract apply • Defendant’s forum • Place of performance • Agreed forum

10. Possible circumvention • Floating charge is forbidden under English law • Parties choose English forum • If English courts apply English law (they should not), they may declare floating charge valid • English decision to be recognised and enforced under Brussels I even though it applied wrong law • Violation of public policy?

11. Choice of law – immovable property I • Norwegian buyer • Immovable property in Italy • The buyer does not pay the whole price • Seller sues the buyer to obtain payment • Which law governs?

12. Choice of law – immovable property II • Norwegian buyer • Immovable property in Italy • The buyer claims the contract is invalid • Which law governs?

13. Choice of law – immovable property III • Norwegian buyer • Immovable property in Italy • The property has a negative easement to prevent blocking the seller’s neighbouring property’s view • The seller seeks a declaratory judgment confirming the extent of the property right transferred to the buyer • Which law governs?

14. Qualification I • Disputes on performance or validity of a contract having as its object immovable property: relate to contract • Party autonomy • Absent parties’ choice: Art. 4.1(c) Rome I: Law of the place where the property is located

15. Qualification II • Disputes on the existence, extent or performance of a property right (right in rem) in immovable property: • Property law

16. Choice of law for property law • PIL for property law not regulated in EU PIL • National PILs: • law of the country where the property is located (lex rei sitae)

17. Choice of law – movable property • Norwegian debtor • English creditor • Floating charge over all debtor’s assets • Dispute about floating charge’s validity • Governing law clause in contract: English law • Which law governs?

18. Qualification • Disputes on the existence, extent or performance of a property right (right in rem) in movable property: • Property law

19. Choice of law for property law • PIL for property law not regulated in EU PIL • National PILs: • law of the country where the property is located (lex rei sitae) • Party autonomy does not apply

20. When the goods move • Norwegian producer sends its raw materials for processing to a Russian plant • According to the tolling agreement, the property of the materials is at all time with the Norwegian producer • The Russian plant uses the materials in its possession as security for a loan it takes with a Russian bank • The Russian bank is not aware that the materials are not the property of the Russian’s borrower • The loan is defaulted, and the Russian bank exercises its security rights on the materials • Which country’s law governs?

22. Plurality of relationships • Between the parties to the tolling agreement • Between the parties to the loan agreement • Between the Norwegian producer and the Russian bank

23. Qualification • Between the parties to a contract: contract law • Between a party who asserts a property right and a third party: property law

24. Lex rei sitae for movable goods • The law of the country where the thing is located – at what point in time? • At any given time

25. Assignment of claims • Norwegian distributor borrows money in England • As a security, distributor assignes to the lender its claims towards the buyers • Which law governs?

27. Creditors Creditors

28. Plurality of relationships • Distributor-buyers • Distributor-financial institution • Buyers-financial institution • Distributor’s creditors-financial institution • Financial institution’s creditors-distributor

29. Qualification • Contract law: • Distributor-buyers (Art. 3, 4 Rome I) • Distributor-financial institution (Art. 14.1 Rome I) • Buyers-financial institution (Art. 14.2 Rome I) • Property law: (Art. 27.2 Rome I) • Distributor’s creditors-financial institution • Financial institution’s creditors-distributor