Introduction to Polish Private International Law 5th Classes

1. Introductionto Polish Private International Law5th Classes Dr. Mateusz PilichChair of Int’l Private and Trade Law,University of Warsaw

2. Time Factorin the Conflict of Laws

3. The Impact of Time Factoron the Conflict of Laws • The time may impact the connection between the situation in question and the law applicable to it in two dimensions: • in a larger sense – the conflict law in a country of the court's seat may change (e.g. replacing the old Polish PIL Act in 2011, adopting new European Regulations) • in a stricter sense – the parties or authorities of a state may impact on the connection (e.g. a party who had the nationality of a country A may acquire citizenship of a country B, he or she may move an object of rights, etc.)

4. Legislative Changesin the Conflict of Laws • Well-established principle of non-retroactivity of laws: • Article 3 of the Polish Civil Code: The statute shall have no retroactive effect, unless it results from its wording or purpose. • Article 2 of the Polish Constitution: The Republic of Poland is a democratic State ruled by law and implementing principles of social justice. • Prospective effect of the new law – to apply it to factual situations which were completed after its enactment • E.g. the SC judg. 14/2/2013, II CSK 294/12, OSP [Polish Courts Case Law] 2014/1, issue 3 – the intertemporal questions of PIL settled in accordance with the general principles of intertemporal law, as enshrined in the Civil Code and its Introductory Law

5. Change of the Connecting Factor • Plays a role only if the connecting factor is variable (each and every law applicable is taken into account): • Article 11(1) PILA: law of one's nationality from any particular moment governs the capacity of a natural person • Article 51 PILA: law of the spouses' common current nationality governs the effects of marriage (except for marital agreements) • The immutable (invariable) applicable law – if it is provided for the application of the law from a particular moment in time (e.g. the moment of birth, conclusion of marriage, one's death, etc.), e.g. Articles 52(2) or 64 PILA • Judg. SC 15/5/2008, I CSK 541/07, OSNC [SCRep.-Civ.] 2009/9, issue 125: no legal relevance for the change of the nationality by the spouses after the conclusion of the marital agreement

6. Case Studies • Example No. 1In mid 2010, a Polish national Maria C. concludes a marital property agreement with her French husband Sébastien D. Parties choose the regime of the separation of assets and the French law as applicable. One year later Maria C. acquires also the French nationality and gives up the nationality of Poland. Does it have any impact on the law governing marital property? • Example No. 2An inhabitant of Wroclaw (south-western Poland) Jan S. bought in Poland a well-kept BMW car with "German papers" at favorable price. After two-year period of its possession in Poland he left for Switzerland, where he spent one year and a half. One day, when he was coming back to Poland, his car was stopped and seized by the German police because it had probably been stolen on the territory of the Bundesrepublik. May Jan S. claim it back on the assumption of the bona fide three-year possession (Article 169(2), 174 of Polish Civ.c.), taking into consideration that the Swiss Zivilgesetzbuch provides for a much longer, five-year usucapion period?

7. Case Study No. 1 • At the time Maria C. entered into the marital agreement, the current Law of 2011 had not yet been in force (it was enacted on 16/05/2011) • The old Law of 1965 did not foresee the professio iuris (choice of law by the parties) for marital contracts • Connecting factors of Article 17 PILA 1965: common nationality at the time of entering into agreement common domicile lex fori • After the enactment of the new Law nothing has changed, it is still governed by the law as of the day the marital agreement was concluded

8. Case Study No. 2 • The car has been moved through the state frontiers • Article 41 PILA operates with a variable connecting factor (lex situs rei from each and every time) • The Polish and Swiss Civil Codes do not provide for equal periods of the possession in order to acquire a title on a movable (Poland – 3 years, Switzerland – 5 years) • In Poland, the period had not expired yet, in Switzerland the case was similar • Jan S. has not acquired the car's ownership

9. Public Policy Exception (ordre public)

10. Function and Purpose • Article 7 PILA: A foreign law shall not apply, if its application would lead to consequences that are incompatible with the policy of the Republic of Poland. • Article 21 Rome I: The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum. • Why it is called an "exception" of ordre public? • Every legal system has its "roots" and foundations • Principles which determine the self-identity of the given state and society • Expressed in several provisions of fundamental laws (quite often widely scattered): • Constitution of Poland • International treaties (esp. human rights conventions) • Codes (Civil Code, Family Code, Criminal Code)

11. Case Studies • Case Study No. 1: • A national of an Arabic country wants to marry a women of Polish nationality. Both are single, yet according to the man's national law he could have even 4 wives, provided that those previously married give their consent (SC resolution 22/06/1972, III CZP 34/72). • Case Study No. 2: • Polish civil court adjudicates on the damages for the defamation in a press article. The injured party is American, he claims for $250,000 of actual damages and $2,000,000 as "punitive damages" (see SC decision 11/10/2013, I CSK 697/12). • Case Study No. 3: • Two Syrian Catholic Christians submit a claim for the divorce by mutual consent. According to their common personal law (the Canon law of the Eastern Churches), the divorce is not possible. Should the court find for them under the public policy exception?

12. Case Study No. 1 • The principle of monogamy is a fundament of social order in Poland (and in Western culture as a whole) • The Supreme Court's mistake: to oblige the trial court to scrutinize the foreigner's ability to marry taking into account the difference between the future legal status of the Polish wife after the possible marriage • Simple differences between the Polish and foreign substantive law do not suffice • The effect of application of foreign law in a given case matters • Simple possibility of the poligamy is too weak to justify the exception

13. Case Study No. 2 • "Punitive damages" – a never-ending story of divergencies between defamation laws of the civil law and common law countries • Functions of the punitive damages: to punish the defendant for his or her outrageous conduct, to deter him or her and others from doing the same in future • Sum of money non corresponding to the actual detriment, personal or pecuniary • Supreme Court found it principally impossible to find for the plaintiff due to the principle of proportionality (certain relation of money claim to the violated interest)

14. Case Study No. 3 • Divorce – a problematic legal institution • Article 18 of the Constitution: principle of the family and marriage protecton, no internationally recognized principle of dissolubility of marriage (such a principle may be accepted by particular legal systems) – see Article 8 of the 1970 Hague Convention on the Recognition of Divorces and Separations • The principle of the individual liberty (Article 31(1) of the Consitution) • Which of these principles should prevail? • The 'positive' effect of the public policy exception: the foreign law fully substituted by the domestic one

15. Law Evasion(fraus legis)

16. Function and Purpose • A "unicorn" of the private international law (often discussed, hardly ever seen) • French Princesse de Bauffremont case (1878): • A French aristocrat intended to marry a foreigner in spite of being already married • Having obtained a legal separation in France (divorce was then forbidden), she left for a small German principality where she acquired a nationality through naturalization • As a 'German' national she had in that country a legal status of the divorced and thus she could marry a new husband in Berlin • In France, courts found against Mrs de Bauffremont holding she is still married • There was a denial ofrecognizing of the change of the connecting factor • Law evasion – a deliberate act of the party (or parties), who want to receive more that thay would have received had a given law been applied • They may look for an escape from a given law through the manipulations concerning the point of connection

17. Where It Is Hidden? • Procedural issues play a predominant role • Forum shopping – sometimes forum deliberately chosen in order to make the court adjudicate under the law which best 'fits' the plaintiff's needs and expectations • Negative labeling of the forum shopping, trials of preventing parties from such practices • Weak points of the theory • It is rarely possible to prove the 'bad faith' of the parties • If the court has a jurisdiction and there is no exclusive Polish jurisdiction it seems hard to argue that a foreign judgment does not deserve recognition and enforcement • The merits of the foreign judgment are not subject to judicial scrutiny in Poland (prohibition of révision au fond)

18. Application of Foreign Law

19. Scope of the Polish Courts'Duties and Obligations • Obligatory character of the Polish conflict law rules (remarks on the German concept of the "fakultatives Kollisionsrecht") • Application of a foreign law: not the 'fact' but just the 'law' • Ex officio applying of the foreign applicable law (Article 1143(1) Code of Civil Procedure) • The party is not obliged to request the application of the foreign law • The court has to take it into consideration at any stage of proceedings (even on appeal) • Court's errors in (mis)applying a foreign law are appealable and also (which is not so obvious in many Western countries) subject to the revision by the Supreme Court

20. Selected General Principles • A limited scope of the principle jura novit curia ("A court knows the law") • The content of the law has to be proved by the court (irrespective of the parties' motions or contentions) • The means used: • The information on the content of the foreign law and legal practice – furnished by the Ministry of Justice) • Convenience of the system created by the Council of Europe according to the 1986 London Convention on Information on Foreign Law • Expert witnesses in the field of foreign law (Article 1143(3) CCP)

21. Thanks for your attention!