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Navigating the Waters: Closest Connection in International Private Law

In this overview of Private International Law, explore the importance of the closest connection principle, the interplay between general conflict rules and discretionary rules, and the impact of harmonization on predictability and forum shopping.

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Navigating the Waters: Closest Connection in International Private Law

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  1. Private International LawSciences Po ParisSpring 2017 Overview and sources Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

  2. The importance of the closest connection • Two Norwegian ships collide in English waters • Dispute between ship owners before Norwegian courts • There are connections both with English and Norwegian law • Individualising method: discretionary choice of Norwegian law • General conflict rule: exception of common habitual residence: Norwegian law

  3. PIL’s important feature(1):closest connection General conflict rules Discretionary rules Evaluation of all circumstances of the specific case may reveal closest connection • Clear and general criteria are based on evaluation of which criteria reflect closest connection in situations of the kind at hand • Should the general and objective criteria give an unacceptable result in the case at hand, possibility for restricted exceptions

  4. Closest connection is not necessarily the court’s own law • Two Norwegian ships collide in English waters • Dispute between ship owners before English courts • There are connections both with English and Norwegian law • General conflict rule: exception of common habitual residence: Norwegian law • Individualsing method: risk of homeward trend

  5. Closest connection does not override other conflict rules • Contract between an Italian and a Norwegian party • Contract contains a governing law clause choosing English law • Parties’ choice is a conflict rule • Closest connection is irrelevant

  6. Summary • Closest connection is the principle inspiring connecting factors • Closest connection does not justify overriding other connecting factors unless the restrictive criteria for exceptions are met

  7. The importance of predictability • Norwegian distributor • Italian producer • Claim is 6 years old • Norwegian law: claim is time barred • Italian law: claim is not time barred • Shall you advise the creditor to claim full payment or to settle? • The answer depends on the choice of law

  8. PIL’s important features (2):Predictability General conflict rules Discretionary rules Choice is made on the basis of a discretionary evaluation of all circumstances of the case Exercise of discretion in unpredictable • Choice is made on the basis of clear and general criteria • Application of clear and general criteria is predictable

  9. The importance of harmonising choice of law • Is the claim brought before Italian courts, the distributor’s law applies • Is the claim brought before Norwegian courts, the producer’s law may apply • Under harmonised regime: distributor’s law • Under individualising method: uncertain • Forum shopping • If conflict rules are harmonised, possibility for forum shopping is reduced

  10. PIL’s important features (3):Harmonisation General conflict rules Discretionary rules Exercise of discretion may vary from country to country • Clear and general criteria are applied uniformly in all jurisdictions

  11. Private international law is (originally) national • Branch of each country’s law determining: • The scope of jurisdiction of that country’s courts • The scope of application of that country’s law • PIL may also determine: • Which country’s law is applicable by that country’s courts, if their own law is not applicable • What is international is not the law, but the legal relationship to which PIL applies

  12. Harmonised PIL in the EUhttp://eur-lex.europa.eu/summary/chapter/justice_freedom_security/2302.html?root=2302&obsolete=false#arrow_230205 • EU regulations replace national PILs on: • Choice of law for contracts • Choice of law for torts • Jurisdiction and enforcement of civil judgments • Cross border insolvency • … • No EU (direct) conflict rules on company law, property,…

  13. Harmonised interpretation of EU PIL • EUCJ has authority to interpret EU sources of PIL • EUCJ shall interpret the various sources consistently • Many concepts of EU PIL are interpreted autonomously • E.g.: the concept of contract (C-34/82, C-26/91, C-51/97, C-12/15, C-196/15, C-265/02, C-334/00) • Some are not • E.g.: the concept of domicile (art 62 Brussels I)

  14. Harmonisation beyond EU • Hague conference on private international lawhttp://www.hcch.net/index_en.php • Convention on choice of court • Convention on apostille • Convention on child abduction • Convention on adoption • … • Principles on choice of law for contracts

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