UNIT 20: Private international law

1. UNIT 20:Privateinternationallaw English for the Legal Profession IV Snježana Husinec, PhD; shusinec@pravo.hr

2. Consider the following situations and explain the difference. • An Englishman and hiswife are British citizens, domiciled and resident in England, went through a ceremony of marriage in England. Later, the wife petitions an English court for a divorce. The spouses are still domiciled and resident in England. • A British couple married in France, domiciled and resident in England at the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France. • DOMICILE - the country which a person officially has as their permanent home, or has a substantial connection with. • RESIDENT – a personisconsidereda resident if present in a country for 183 days or more per tax year.

3. International law vs. National law Thinkaboutthedifferencesbetweennationalandinternationallawconcerning: A) theterritory on whichitisapplied B) thepartiesinvolved C) thesources How wouldyousubdividetheinternationallawaccording to theircharacteristics?

4. International law = consists of rules and principles which govern the relations and dealings of nations and other international entities with each other

5. Considerthefollowingcaseandanswerthequestions: • In yourview, whichlegalproblemswouldariseinsuch a situation? • Whichlegalissueswouldhave to besolved? • Doesthismatterbelongintherealmofpublic, privateorsupranationallaw?

6. Privateinternatinallaw / Conflictoflaws • A partofnationallawwhichestablishesrules for dealingwithcasesinvolving a FOREIGN ELEMENT. • Itisconcernedwithcasesinwhichthepartiesorotherrelevantissues are connectedwith more than one country. (Theconflictarisesfromthedifferencebetweenlegalsystems.) • What do youthinkcanconstitute a foreign element? • Findexamplesinthefirstparagraphofthetext. • Whyistitclassified as PRIVATE andwhy as INTERNATIONAL law?

7. Theterm ¨country¨inprivateinternationallaw COUNTRY = anyterritorialunithavingitsownsparate system oflaw (no matterwhetheritconsitutesanindependentstatepolitically) • Decidewhichof the followingterritorialunitscanbereferred to as ¨country¨ inprivateinternationallaw? UK, Ontario, California, Croatia, Scotland, Wales, Australia, Canada, England, Ireland, Northern Ireland

8. Issues to bedecidedinconflictoflawcases • Whatissues, do youthink, shouldbedecided byconflictoflawrules?

9. Conflict of Laws Addresses the followingquestions: 1)JURISDICTION - In which legal jurisdiction may a case be heard? (determining whether the proposed forum has jurisdiction to adjudicate and whether itis the appropriate venue for dealing with the dispute) 2)CHOICE OF LAW - The law of which jurisdiction(s) should be applied to the issues in the case? • determining which of the competing state's laws are to be applied to resolve the dispute – choice-of-law rules(zakoni o rješavanju sukobu zakona) • (the court first must settle these conflict of law questions before beginning to hear the merits of the case and deciding on a resolution to the dispute) 3) RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENTS -How a foreignjudgmentwillbeenforced?

10. Areasoflawinvolvingconflictoflaws • Law of obligations (contracts, torts) • Property and succession (property inter vivos, succession, matrimonial property relations) • Family law (marriage, divorce, children)

11. The stages in a conflict case 1.The court must first decide whether it has jurisdictionand, if so, whether it is the appropriate venueresolving the issue of forum shopping 2.Thecharacterizationof the cause of action into its component legal categories which may sometimes involve an incidental question 3. Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issues 4.Application of selected laws to reach a judgment. 5.The successful party must enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.

12. ChoiceoflawrulesCourtsfacedwith a choiceoflawissuehave a two-stageprocess: 1. the court will apply the law of the forum (lexfori) to all procedural matters 2. it counts the factors that connect (connectingfactors) or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection

13. e.g. -the law of nationality (lexpatriae) or domicile (lexdomicilii) will define legal status and capacity, -the law of the state in which property is situated (lex situs) will be applied to determine all questions of title, -the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, (In any case PROPER LAW will bi applied!!! Proper law = the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied (US  the most significant relationship testis conducted)

14. Examplesofchoice-of-lawrules - Croatian Private International LawAct 2019 MARRIAGE – Article 31 Thelawgoverningtheconditionsunderwhich a marriagemaybeenteredintois, for eachperson, thelawofthestateofwhich he is a citizen at the date themarriageisenteredinto. … DIVORCE – Article 36 Thelawgoverningdivorceisthelawofthestatewhichbothspouseschoose. Theymaychoose one ofthefollowinglaws: • Thelawofthestateinwhichbothspouseshavethehabitualresidence at the time ofchoiceoflaw; • Thelawofthestateinwhichthespouses had theirjointhabitualresidence, if one ofthemisstillnotinthisstateandhashabitualresidence, or • Croatian law

15. Casestudy 1 A whohas a Frenchnationalityandresidence in Germany B whohasAmericannationality, domicile in Arizona, andresidence in Austria C a Swiss national, ownspropertyinSwitzerland • A correspondswith B overtheinternet. Theyagreethejointpurchaseofland in Switzerland, currentlyowned but C, buttheyneverphysicallymeet. • Theyexecuteinitialcontractdocumentsbyusingfaxmachines, followedby a postalexchangeof hard copies. • A payshisshareof the deposit but, before the transaction is completed, B admitsthatalthough he hascapacity to buylandunderhislexdomiciliiand the lawofhisresidence, he is tooyoung to ownlandunderSwisslaw.

16. Casestudy 2Schwebel v Ungar [1964] 48 DLR (2d) 644 Supremecourtof Canada AJewish husband and wife, domiciled in Hungary married in Hungary. While they were emigrating to Israel, they found themselves in Italy and the husband divorced his wife by ’gett’ (divorcedocumentinJewishreligiouslaw). Under the laws of Hungary (their lexdomicilii) and Italy, the religious form of divorce was invalid, but it was recognised as effective by the law of Israel where they acquired a domicile of choice. Subsequently, the wife moved to Canada and, without abandoning her Israeli domicile, went through a second ceremony of marriage. The second husband petitioned for nullity alleging that the marriage was bigamous.

17. Case study 2 - Ruling The Supreme Court held the marriage to be valid. - The main question was the wife's capacity to marry which, under Canadian law, is determined by her lexdomicilii, i.e. the law of Israel at the time of the second ceremony. - The incidental question was the validity of the divorce which was to be determinedeither • a) by their lexdomicilii at the relevant time or • b) by Italian law as the lex loci actus. Thecourtdecidedthatthewife had thecapacity to marryandthatthedivorcewasvalid. The judgment seems to suggest that the court decided both questions by reference to the law of Israel as the law governing the main question.

18. Reading comprehension: • Read the textcarefullyandanswer the questionsin ex. III. • Do ex. IV and V.

19. Vocabulary practiceFind in the text the following English terms and expressions and translate them into Croatian. • conflictoflawrules • to lawof the domicile orhabitualresidence • to raise a conflictoflawsissue • to exercisejurisdiction • recognitionandenforcementofforeignjudgments • to giveeffect to the judgmentsofforeigncourts • to have a judgmentsatisfiedoutof the defendant’sassets • to make a commitment to adhere to the principlesof the treaty • consistencyintreatmentofcross-boarderissues

20. Part Two: Case Analysis: Hodas v. Morin Considerthefollowingterms: • gestationalsurrogacy / gestationalcarrier • intendedparents • gestationalcarrieragreement • a prebirthorder • birthcertificate • applicablelaw • nominaldefendant • forum shopping

21. Part Two: Case Analysis: Hodas v. Morin ReadtheintroductorypartofthejudgmentintheHodas v Morincase on p. 206-208 andanswerthefollowingquestions:. • Whatisthelegalissueinthecase? • Who are theplaintiffanddefendant? • Does a Probate and Family Court judge have authority to issue prebirth judgments of parentage and to order the issuance of a prebirthrecordofbirth? • Whichjurisdictionshave a connection to thetransaction? How do thelawsofconnectingstatesregulategestationalcarrieragreements? Isthere a conflictbetweenthem? • Whatisthecourt’sdecisionconcerningthechoiceoflaw?

22. Part Two: Case Analysis: Hodas v. Morin • In youropinion, ifthechoiceoflawprovisionhasbeenincludedinthecontractbytheparties, cantheparties’ choiceoflawbecontestedbythecourts? • Whatisyouropinionofthe problem ofconflictbetweentheparties’ choiceoflawprovisionanda state’spublicpolicy? Which one shouldprevail?

23. Act concerning the resolution of conflicts of laws with the provisions of other countries in certaing matters (Zakon o međunarodnom privatnom pravu 2019)CROATIAN PRIVATE INTERNATIONAL LAW ACT • Study the followingcase Croatiancouple married in France, domiciled and resident in Croatiaat the time of marriage. Later on the husband petitions for divorce. At the time of his divorce petition his wife is domiciled and resident in France. • and do the following: • Characterize the causeofactionintoitslegalcomponents (legalelementsof the case; the questionsthatneed to beanswered) • Determine the choice-of-lawrules for each element • Determine the connectingfactors for eachrule (bywhichnationallawshouldeachquestionbeanswered) • Use Part II (APPLICABLE LAW) Chapter VII (Familylaw) of the Croatian ConflictofLawsActandtry to answer some ofthequestions.