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Introduction to Polish Private International Law 2nd Classes

Introduction to Polish Private International Law 2nd Classes. Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw. Why to Apply Foreign Laws?. What if the civil or commercial court would apply only its own substantive law ( lex fori )?

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Introduction to Polish Private International Law 2nd Classes

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  1. Introductionto Polish Private International Law2nd Classes Dr. Mateusz PilichChair of Int’l Private and Trade Law,University of Warsaw

  2. Why to Apply Foreign Laws? • What if the civil or commercial court would apply only its own substantive law (lex fori)? • Justifications for other solutions: • comitas gentium – peaceful coexistence of states requires that the court respect foreign sovereignty as much as possible • 'acquired rights' doctrine (and its traces in the EU law 'country of origin' principle) • private parties' interests

  3. Blueprint of the History& Developmentof Private International Law

  4. Old School of Statutes • Group of mediaeval and early-modern Roman law researchers (until the mid 19th century) • Most of early statutists came from Italy and France • Later the most eminent lived in the Netherlands (Johannes Vöet, Ulrik Huber) • Statute = a particular law as in force in a country, opposed to the universal private (Roman) law • Tried to derive the rules of the conflict of laws from the ancient texts (Corpus Iuris Civilis) • They used a typical scholastic method of exegesis, not a modern way of the legal interpretation • Justification of the application of the territorial law to foreigners

  5. Friedrich Karl von Savigny • Great German private (civil) lawyer of the 19th century • 8th Part of his System of the Modern Roman Law (Berlin 1840) contained the lecture of the PIL • ‘Invented’ the original (European) method of the conflict of laws • The concepts of the ‘seat of a legal relationship’ (Sitz des Rechtsverhältnisses), the ‘international community’ of equal national laws • Abstract rules the object of which consists only in designating the law of the country applicable to the given private law relationship (e.g. a contract shall be subject to the law of the country where the debtor obliged himself to perform)

  6. Pascuale Stanislao Mancini • Italian researcher, practising lawyer and also a politician in the era of Risorgimento • Author of the first modern codification on the Private International Law (part of the Civil Code for the Kingdom of Italy of 1865) • Central notion of his whole system was the nationality (personal & family law, successions) • Inspired the efforts in order to codify the PIL in one or several international conventions (beginning of the HCCH  see next slide) • One of the founding fathers of the International Law Institute – a private law organization gathering high rank researchers of the international (public & private) law

  7. Hague Conferenceof Private Int’l Law (HCCH) • One of leading international (intergovernmental) organizations developing the PIL and International Civil Procedure • A posthumous child of Mancini, originally a series of diplomatic conferences (Hague sessions) held since 1893 ( Tobias Asser), formally founded in 1955 under the Statute of 1951 (7th Session) • 74 members, incl. Poland and the European Union • Selected output: • 1956 Maintenance Towards Children Convention (later replaced by: 1973 Maintenance Obligations Convention, 2007 Maintenance Protocol) • 1961 Protection of Infants Convention (later replaced by the 1996 Protection of Minors Convention) • 1961 Form of Wills Convention • 1971 Traffic Accidents Convention • 1961 Abolishing of Legalization of Public Documents Convention • 1980 Int’l Children Abduction Convention

  8. American Conflict of Laws • US law of conflict of laws: a diverging world of legal notions • Probable reasons: • Impact of the doctrine of territorialism (Huber, Story) • Trends towards consolidating problems of jurisdiction and law applicable • Various schools and doctrines but the most influential theory created by Professor Brainerd Currie (1912-1965) • Author of ‘Selected Essays on the Conflict of Laws’ (1963) • Doctrine of governmental interests – courts have to weigh opposing interests of various coutries in having their laws applied to a case • Material considerations necessary in order to apply foreign laws • Values derived from the letter of substantive law decide • Importance for the European countries, impact on the PIL development

  9. Methodologyof the Conflict of Laws

  10. Structure of the Conflicts Law Rule • Rule of law as a directive of behavior • Direct or indirect legal regulations, conflict of laws as the object matter of indirect rules • Purpose: NOT TO SOLVE THE CASE, just to give the law applicable to a distinct questions • Example – Article 11 (1) of the 2011 Law on PIL: A natural person’s legal capacity and capacity to perform juridical acts (legal transactions)is governed by the law of his or her nationality • "Law of one's nationality" – POINT OF CONNECTION • "Legal capacity", "Capacity to act" – OBJECT OF THE CONNECTION

  11. Point of Connection(Connecting Factor) • The part of the confict law rule designating the law applicable • In a typical case: an abstract character • They localize the object of connection within the sphere of application of certain national law (e.g. Polish, German, Swiss one, etc.) • Based on personal, objective, or subjective criteria • Personal connecting factors: • nationality of a natural person • domicile (permanent residence) of a natural person • habitual residence of a natural person • seat of a moral person • place of foundation/incorporation of a moral person • Objective connecting factors, e.g. the situation of the immovable property or tangible object, the place of conclusion of marriage, etc. • Subjective connecting factors – based on the will of a person = choice of law by the interested party/-ies

  12. Object of Connection • Relationship or status for which the applicable law is being sought • Examples: • "legal incapacitation" (Article 13 PILA) • "name and surname of a natural person" (Article 15 PILA) • "legal person" (Article 17 PILA) • "prescription of a claim" (Article 16 PILA) • "ownership and other absolute property rights" (Article 41 PILA) • "ability to conclude the marriage" (Article 48 PILA) • Terms reminding the typical institutions of private (civil & commercial) law, usually borrowed from a vocabulary of the legislator's own legal system (here: from Polish one) • Obvious problems stemming from conceptual and systematic differences between private laws of countries  conflict of characterizations

  13. 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 any 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: we have a basic connection but there is a 'weak' alternative in order to keep a legal relationship 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)

  14. Law applicable vs Lex… • Law applicable: • national law which governs a given relationship, is applied to it 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 express for which object the connection has been 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: • In Latin means: the law • Commonly used together with a proper Latin noun in the genitive, in order to denote the connecting factor which • 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

  15. Thanks for your attention!

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