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. Law applicable vs Lex… • Law applicable: • national law whichgoverns a givenrelationship, itappliesunder the rule of conflict of laws • in manyEuropeanlanguages (but not in English!) called in a similarway, e.g.: German: das Statut, Dutch: statuut;Polish: statut; French: le statut; Spanish: el estatuto • Used to designate the product of application of the conflict of lawsrule • We say in English e.g. the "law applicable to contracts" but in Spanish we maysay"el estatutocontractual", in Dutch "het contractuelestatuut", in German "dasVertragsstatut", in Polish"statut kontraktowy" • Lex: • means "the law" in Latin • Commonlyusedtogether with a properLatinnoun in the genitive, in order to denote the connectingfactor • E.g. Article 11 (1) – the applicable law is the law of one'snationality– in Latin: lex patriae; Article 41 (1) – the applicable law is the law of the situation of tangibleproperty – in Latin: lex situs reiorlex rei sitae

4. Examples of Connecting Factors

5. Certain Technical Problems

6. Characterizationin the Conflict of Laws • Case study No. 1 AnIraqinational Ali Hassan S. worked as a translator for the Polishtroops. Afterhavingaccomplishedhismission, he was evacuated to Poland together with hisfamiliy. In December 2013 hiswife Fatima S. demanded a divorcedecree, basingherclaim on the contentionthatherhusbandhad not performedhisduty to pay a dowry (al-mahr), whichis a kind of the 'price' for a bride in the Arabiccountries – a 'consideration' for marrying a woman. • Case study No. 2 A richPolish businessman Jan Z. issuffering from a mortalillness. Expecting the comingdeath, he askshislawyer to found a trust in Malta, where he hasregistered a limitedliabilitycompany and invested a considerable sum of money. Trust beneficiarieswould be histhree minor sons. The wife of Jan Z. gets to know of herhusband'sintention and raisesherobjectionagainstit. • Case study No. 3 The Polishnational Adam C. ismarried with the German national Louise C. The couplelives in Germany. After the death of Adam C., whoinstitutedhisPolishnaturaldaughter as a testamentaryheir, the latterissued by the widow for payment of the equalization of the accruedgains ('Zugewinnausgleich'), i.e. the part of the value of the deceasedspouse'sproperty in the case of the marriagetermination.

7. 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

8. 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.

9. How to Proceed? • Subject-matter of the characterization – proposals: • Substantiveclaim • Legalrule • Legalissue ("question of law") • Four 'schools of characterization': • Lege fori(according to the law of the court's seat) – see Franz Kahn/Etienne Bartin – legalcategories in conflictsrules to be understood in accordance with Polishsubstantive law • Lege causae (according to the law applicable) – the "viciouscircle" reproach • Autonomousmethods: • Comparativeapproach– see Ernst Rabel • Conflicts law of forum approach • Critical evaluation of the doctrine

10. 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?

11. Meaning of renvoi • Renvoi– a French term (English terms ‚remission’ or ‚transmission’ rarelyused), standing for "sendingback„ or „forwarding" • Differencesamonglegalsystemsconcerningpoints of connectionlead to negativeconflicts • Ourexample: law applicable to successions in Poland – basicallynational law of the deceased, in France – the law of his/herlastdomicile (movables) or the law of the situation of property (immovables), so the 'splitsuccessions' scheme

12. Variants of renvoi • Renvoi au premier degré, or the remission – we arecomingback to the initial point (i.e. to lex fori) • Renvoi au seconddegré,or the transmission– the conflictsrule in the system of law specified as applicablerefers to the law of a third country (e.g. capability of anEnglishmandomiciled in Germany to sign a promissorynote in Poland)

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

14. Justification of renvoi • Designation of a law applicablehas a generalmeaning(we mind the whole system of the law as in force in the country, incl. itsconflictsrules) • Respect for the foreignsovereignty • Coordination of divergingconnectingfactors, striving for the internationalharmony of decisions • In ourexample: the simpleconvenience of the Polishcourt (why to applyforeign law, if one canturnback to itsown?)

15. Renvoi in the Polish PIL • PIL Act 2011: Article 5 – only the renvoi au 1erdegré, no reference to the third country's law (exception: Article 17(2) PILA) • Exceptions from the rule, para. (2): • parties' choice of law; • formalvalidity of juridicalacts; • Contractualor non-contractualobligations • EU Private International Law: generallyno renvoi (the substantive law specifieddirectly, seeArticle 20 Rome I) • Conventions – seeSupr. C. decision of 14 Febr. 2013, II CSK 294/12 (1961 Hague Form of Int'lWillsConvention, Article 1) – generally NO RENVOI unless the conventionsoprovides!

16. Thanks for your attention!