Introduction to Polish Private International Law 3rd Classes

1. Introductionto Polish Private International Law3rd Classes Dr. Mateusz PilichChair of Int’l Private and Trade Law,University of Warsaw

2. Structureof the Conflict Law Rules(A Supplement)

3. Various Types of PIL Rules • Basic division: • unilateral conflicts law rules (e.g. in German: einseitige Kollisionsnormen, in French: normes de conflit unilatérales) – they specify only the lex fori(i.e. the court's own law) as applicable • bilateral conflicts law rules (e.g. in German: allseitige Kollisionsnormen, in French: normes de conflit bilatérales) – they may specify a law of any country of the world as applicable (i.e. either lex fori or a foreign law – and hence called "bilateral") • Complex rules of PIL: • with alternative connecting factors: several laws may be applied on an equal footing (e.g. Article 1 of the 1961 Hague Form of Wills Convention) • with subsidiary connecting factors: there is a basic connection but also a 'weak' alternative in order to keep a status or act in question valid (e.g. Article 49 PILA) • with "ladder" of connecting factors: if the preceding connecting factor does not fit the facts of the case, the next one steps in (e.g. Article 51 PILA)

4. Law applicable vs Lex… • Law applicable: • national law which governs a given relationship, it applies under the rule of conflict of laws • in many European languages (but not in English!) called in a similar way, e.g.: German: das Statut, Dutch: statuut; Polish: statut; French: le statut; Spanish: el estatuto • Used to designate the object for which the connection is being sought • We say in English e.g. the "law applicable to contracts" but in Spanish we may say "el estatuto contractual", in Dutch "het contractuele statuut", in German "das Vertragsstatut", in Polish "statut kontraktowy" • Lex: • means "the law" in Latin • Commonly used together with a proper Latin noun in the genitive, in order to denote the connecting factor • E.g. Article 11 (1) – the applicable law is the law of one's nationality – in Latin: lex patriae; Article 41 (1) – the applicable law is the law of the situation of tangible property – in Latin: lex situs rei or lex rei sitae

5. Examples of Connecting Factors

6. Certain Technical Problems

7. Characterizationin the Conflict of Laws • Case study No. 1 An Iraqi national Ali Hassan S. worked as a translator for the Polish troops. After accomplishing his mission, he was evacuated to Poland together with his familiy. In December 2013 his wife Fatima S. demanded a divorce decree, basing her claim on the contention that her husband had not performed his duty to pay a dowry (al-maar), which is a kind of the 'price' for a bride in the Arabic countries – a 'consideration' for marrying a woman. • Case study No. 2 A rich Polish businessman Jan Z. is suffering from a mortal illness. Expecting the coming death, he asks his lawyer to found a trust in Malta, where he has registered a limited liability company and invested a considerable sum of money. Trust beneficiaries would be his three minor sons. The wife of Jan Z. gets to know of her husband's intention and raises her objection against it. • Case study No. 3 The Polish national Adam C. is married with the German national Louise C. The couple lives in Germany. After the death of Adam C., who instituted his Polish natural daughter as a testamentary heir, the latter is sued by the widow for payment of the equalization of the accrued gains ('Zugewinnausgleich'), i.e. the part of the value of the deceased spouse's property in the case of the marriage termination.

8. Roots of the Problem • Characterization called in other European languages as a "qualification" (so, respectively, e.g. in the French, German, Spanish, Italian, Polish legal vocabulary) • Looking for the law applicable, the court has always to choose a proper conflicts rule (into which legal category the facts of the case are to be placed?) • The object of the connection in the conflicts rule is described as a legal category ("form of the marriage", "adoption", "contractual obligation", "property", etc.) • Substantive laws of various countries differ as to their notions and systematics: • Similar legal institutions may be divergently classified • Sometimes the institution the court has to deal with may be even unknown to the law of the forum

9. Possible solutions • Case study No. 1 An unpaid dowry may be classified as (a) the gift under the contract (so a 'contractual obligation'  Rome I); (b) marital property regime (Articles 51-52 PILA); (c) the issue governed by the law generally applicable to the grounds for the divorce (Article 54 PILA) • Case study No. 2 Trust is a typically common law institution, yet unknown to the Polish substantive law. From the standpoint of the private international law, the relationship in question may be perceived as: (a) a contract; (b) a successoral case (Article 64 ff PILA); (c) the property (Article 41 ff PILA). • Case study No. 3 According to the German Civil Code (BGB), the Zugewinnausgleich is a claim based on the marital property regime, which may justify applying of Articles 51 and 52 PILA, or the case of successions.

10. How to Proceed? • Subject-matter of the characterization – proposals: • Substantive claim • Legal rule • Legal issue ("question of law") • Four 'schools of characterization': • Lege fori (according to the law of the court's seat) – see Franz Kahn/Etienne Bartin – legal categories in conflicts rules to be understood in accordance with Polish substantive law • Lege causae (according to the law applicable) – the "vicious circle" reproach • Autonomous methods: • Comparative approach– see Ernst Rabel • Conflicts law of forum approach • Critical evaluation of the doctrine

11. Renvoi • Case study – decision of the Supr. Court of 26 Jan. 2006, II CSK 124/05 A deceased French national died intestate. She left an immovable property in Poland and no living next-of-kin. Polish fiscus successfully laid the claim to the immovable as her 'heir of the last resort' according to the Polish Civil Code. Rightly so?

12. Meaning of renvoi • Renvoi – a French term (no English equivalent), standing for "sending back", "remaining unsettled" • Differences among legal systems concerning points of connection lead to negative conflicts • Our example: law applicable to successions: in Poland – basically national law of the deceased, in France – the law of his/her last domicile (movables) or the law of the situation of property (immovables), so the 'split successions' scheme

13. Variants of renvoi • Renvoi au premier degré – we are coming back to the initial point (i.e. to lex fori) • Renvoi au second degré – the conflicts rule in the system of law specified as applicable refers to the law of a third country (e.g. capability of an Englishman domiciled in Germany to sign a promissory note in Poland)

14. Renvoi au premier degré Article 64(2) PILA – deceased's national law French PIL – situation of property Example

15. Justification of renvoi • Designation of a law applicable has a general meaning(we mind the whole system of the law as in force in the country, incl. its conflicts rules) • Respect for the foreign sovereignty • Coordination of diverging connecting factors, striving for the international harmony of decisions • In our example: the simple convenience of the Polish court (why to apply foreign law, if one can turn back to its own?)

16. Renvoi in the Polish PIL • PIL Act 2011: Article 5 – only the renvoi au 1er degré, no reference to the third country's law (exception: Article 17(2) PILA) • Exceptions from the rule, para. (2): • parties' choice of law; • formal validity of juridical acts; • Contractual or non-contractual obligations • EU Private International Law: generally no renvoi (the substantive law specified directly, see Article 20 Rome I) • Conventions – see Supr. C. decision of 14 Febr. 2013, II CSK 294/12 (1961 Hague Form of Int'l Wills Convention, Article 1)

17. Thanks for your attention!