Private International Law Sciences Po Paris Spring 2017

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