Main questions of ’international Main questions of ’international private law’ private law’ Questions Questions 1. Which court has jurisdiction (in disputes of 1. Which court has jurisdiction (in disputes of private law) ? (see Topic 12) private law) ? (see Topic 12) 2. Which law is applicable (in private law 2. Which law is applicable (in private law relations) (topic of this chapter) relations) (topic of this chapter) 3. Value of foreign judgments and other documents 3. Value of foreign judgments and other documents (see topic 12 ff. - international procedure and (see topic 12 ff. - international procedure and arbitration) arbitration) Sources Sources IPL rules stem from national law or from IPL rules stem from national law or from international law international law Primarily national, but to some degree unified or Primarily national, but to some degree unified or governed by treaties. governed by treaties.
Transcript
Main questions of ’international Main questions of ’international private law’private law’
QuestionsQuestions1. Which court has jurisdiction (in disputes of private 1. Which court has jurisdiction (in disputes of private
law) ? (see Topic 12)law) ? (see Topic 12)2. Which law is applicable (in private law relations) 2. Which law is applicable (in private law relations)
(topic of this chapter)(topic of this chapter)3. Value of foreign judgments and other documents (see 3. Value of foreign judgments and other documents (see
topic 12 ff. - international procedure and arbitration)topic 12 ff. - international procedure and arbitration)SourcesSourcesIPL rules stem from national law or from international IPL rules stem from national law or from international
lawlawPrimarily national, but to some degree unified or Primarily national, but to some degree unified or
governed by treaties.governed by treaties.
What is the applicable private law ?What is the applicable private law ?
Application of private law in transnational Application of private law in transnational relationships is determined by rules of « IPL ».relationships is determined by rules of « IPL ».
Basically 2 types of rules of IPL:Basically 2 types of rules of IPL:- conflict rules (national or uniform);conflict rules (national or uniform);- substantive rules of IPL (mostly uniform rules) substantive rules of IPL (mostly uniform rules)
(often applied only after the conflict rule)(often applied only after the conflict rule)
Structure of conflict rulesStructure of conflict rules
Starting point: a state will apply the law applicable by virtue of Starting point: a state will apply the law applicable by virtue of the conflict rule even if foreign law the conflict rule even if foreign law
Unity or diversity of conflict rules ? Often harmonised (Hague Unity or diversity of conflict rules ? Often harmonised (Hague Conference, EU), but also often diverse > jurisdiction is Conference, EU), but also often diverse > jurisdiction is important in case different conflict rules lead to a different important in case different conflict rules lead to a different result.result.
Structure of the conflict rule: Structure of the conflict rule: -- conflict category > connecting factorconflict category > connecting factor- Classify the issue in a category (such as property, contract, Classify the issue in a category (such as property, contract,
tort, …)tort, …)- Concretisation of the connecting factor refers to the applicable Concretisation of the connecting factor refers to the applicable
law (e.g. law chosen by the parties, law of nationality, law of law (e.g. law chosen by the parties, law of nationality, law of residence or seat, location of a thing, place of damage, …)residence or seat, location of a thing, place of damage, …)
- (NB possible renvoi ?)(NB possible renvoi ?)
Exceptions to conflict rulesExceptions to conflict rules Exceptions to the determination of the applicable law by Exceptions to the determination of the applicable law by
conflict rules:conflict rules:- exception of international public order (art. 21 Rome-I-R)exception of international public order (art. 21 Rome-I-R)- treatment of « overriding mandatory » law (loi d’application treatment of « overriding mandatory » law (loi d’application
immédiate, Eingriffsnormen) (analogous to public law):immédiate, Eingriffsnormen) (analogous to public law):- application of domestic overriding rules (always) (art. 9 (II))application of domestic overriding rules (always) (art. 9 (II))- application of foreign overriding rules (rare), sapplication of foreign overriding rules (rare), see art. 9 (III) ee art. 9 (III)
Rome-I-R.: Rome-I-R.: ““Effect may be given to the overriding mandatory Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of those overriding mandatory provisions render the performance of the contract unlawfulthe contract unlawful”” (comp. Art. 16 Hague Convention on Agency) (comp. Art. 16 Hague Convention on Agency)
- definition & criteria of overriding in Art. 9 I (autonomous EU-concept; definition & criteria of overriding in Art. 9 I (autonomous EU-concept; interpreted in C-184/12 interpreted in C-184/12 UnamarUnamar))
- Comp. § 187(2) US restatement 2nd of Conflict of Laws: Comp. § 187(2) US restatement 2nd of Conflict of Laws: “fundamental policy of a state which has a materially greater “fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular interest than the chosen state in the determination of the particular issue” (comparative impairment doctrine)issue” (comparative impairment doctrine)
conflict rules: company lawconflict rules: company law Category « company law » (and other legal Category « company law » (and other legal
persons)persons)
Issues within this category are mainly: Issues within this category are mainly: - requirements for incorporation (eg capital requirements for incorporation (eg capital
requirements)requirements)- functioning of the companyfunctioning of the company- dissolution and liquidation of the company.dissolution and liquidation of the company.
Connection factor: either principal seat or Connection factor: either principal seat or incorporation theory incorporation theory
- Conflict rule sometimes in some of its effects set Conflict rule sometimes in some of its effects set aside by EU law (free movement)aside by EU law (free movement)
Category « procedural law »Category « procedural law »
Issues within this category: Issues within this category: - procedure s.s.- procedure s.s.- evidence ? (in part procedural, in part substantive evidence ? (in part procedural, in part substantive
conflict rules: property lawconflict rules: property law Category « property law » (see also Ch. 12 insolvency Category « property law » (see also Ch. 12 insolvency
regulation)regulation)
Issues within this category: Issues within this category: - types of property rights, includes proprietary security rights; types of property rights, includes proprietary security rights; - mode of acquisition and loss of property, mode of acquisition and loss of property, - rights included in ownership or other property rights rights included in ownership or other property rights
Connection factor: Connection factor: lex rei sitae lex rei sitae (location)(location)- immovables: immovableimmovables: immovable- movables things: possible conflit mobile. E.g. reservation of movables things: possible conflit mobile. E.g. reservation of
title in international saletitle in international sale- receivables: place of debtor or of creditor or receivables: place of debtor or of creditor or lex causae lex causae ??- documentary intangibles: documentary intangibles: lex cartae sitaelex cartae sitae- dematerialised or intermediated securities dematerialised or intermediated securities
conflict rules: contractconflict rules: contract Worldwide: only Hague « principles » on choice of law in Worldwide: only Hague « principles » on choice of law in
business contracts (approved 19 March 2015)business contracts (approved 19 March 2015)
In the EU: Rome Treaty of 1980 replaced since 17 Dec. 2009 by In the EU: Rome Treaty of 1980 replaced since 17 Dec. 2009 by Reg. 593/2008 (« Rome-I ») (except for Denmark & overseas)Reg. 593/2008 (« Rome-I ») (except for Denmark & overseas)
unless specific Treaties concluded before 17 June 2008 and unless specific Treaties concluded before 17 June 2008 and incl. non-member states (art. 24 ff)* or specific EU rules (art. incl. non-member states (art. 24 ff)* or specific EU rules (art. 27)27)
Category « contractual obligations » in civil & commercial Category « contractual obligations » in civil & commercial matters (incl. individual labour contracts) (excl. arbitration matters (incl. individual labour contracts) (excl. arbitration agreements, trusts, company law, family relations, etc.)agreements, trusts, company law, family relations, etc.)
Issues within this category: art. 10 - 12 (incl. formation, Issues within this category: art. 10 - 12 (incl. formation, validity, form, interpretation, performance, extinction, validity, form, interpretation, performance, extinction, prescription, effects of nullity)prescription, effects of nullity)
Overriding mandatory provisions: see Overriding mandatory provisions: see suprasupra..
* Eg 1955 Hague Convention Law of Sales, still in force in 8 countries (F, It, 4 Scandinavian countries, Switz, * Eg 1955 Hague Convention Law of Sales, still in force in 8 countries (F, It, 4 Scandinavian countries, Switz, Niger)Niger)
Reg. 593/2008 « Rome-I »Reg. 593/2008 « Rome-I » Connection factor: Connection factor: - Primary factor: choice of law (art. 3 freedom of choice) in Primary factor: choice of law (art. 3 freedom of choice) in
relationship with an international element (otherwise, relationship with an international element (otherwise, mandatory rules remain applicable)mandatory rules remain applicable)
- In consumer contracts as defined by art. 6, and individual In consumer contracts as defined by art. 6, and individual employment contracts (art. 8), choice only relates to non-employment contracts (art. 8), choice only relates to non-mandatory lawmandatory law
- Limited choice in insurance contracts (other than large Limited choice in insurance contracts (other than large risks) art. 7risks) art. 7
conflict rules: contract conflict rules: contract – choice of law in Rome-I – choice of law in Rome-I
Reg.Reg. Law applicable to the choice agreement: in principle the Law applicable to the choice agreement: in principle the chosen law with a possible role for the law of the chosen law with a possible role for the law of the establishment (comp. Hague Principles 6 I a and 6 II)establishment (comp. Hague Principles 6 I a and 6 II)
Law of a country or also « rules of law » ? (cfr. debate on Law of a country or also « rules of law » ? (cfr. debate on lex mercatorialex mercatoria) (see Recital 13 & 14 Rome-I; Hague ) (see Recital 13 & 14 Rome-I; Hague Principles art. 3) Principles art. 3)
Express / implied choiceExpress / implied choice Partial choicePartial choice Problem: no solution for battle of forms with conflicting Problem: no solution for battle of forms with conflicting
choice of law clauses … (see Art. 6 I b Hague Principles)choice of law clauses … (see Art. 6 I b Hague Principles) Change of choice (yes, but not to detriment of third parties)Change of choice (yes, but not to detriment of third parties) Choice a posteriori (but cannot create a formal invalidity a Choice a posteriori (but cannot create a formal invalidity a
posteriori by choosing a « posteriori by choosing a « lex invaliditatislex invaliditatis ») (art. 3 II Rome- ») (art. 3 II Rome-I; Hague Principles 2 III)I; Hague Principles 2 III)
conflict rules: conflict rules: contract – choice of lawcontract – choice of law
Why do parties choose a certain law ? Why do parties choose a certain law ? Mainly familiarity (incl. language). Mainly familiarity (incl. language). Empirical data: Some attraction of English, Swiss and to some Empirical data: Some attraction of English, Swiss and to some
extent French, US and German law (2014 study from ICC extent French, US and German law (2014 study from ICC arbitrations: 11,2arbitrations: 11,2% English, 9,9 % Swiss)% English, 9,9 % Swiss)
Battle for the choice of law common law >< « continental Battle for the choice of law common law >< « continental law ». « battle of the brochures » (2007 – 2008)law ». « battle of the brochures » (2007 – 2008)
Moreover, ‘boilerplate clauses’ are often copied from other Moreover, ‘boilerplate clauses’ are often copied from other jurisdictions without taking into account the chosen (or jurisdictions without taking into account the chosen (or otherwise applicable) law (result is an ‘alien contract’)otherwise applicable) law (result is an ‘alien contract’)
Subsidiary connection factor if no choice of law:Subsidiary connection factor if no choice of law:- sales in art. 4 (a) (residence seller)sales in art. 4 (a) (residence seller)- services in art. 4 (b) (residence service provider)services in art. 4 (b) (residence service provider)- immovable property or tenancy in art. 4 (c/d) , immovable property or tenancy in art. 4 (c/d) , - franchising and distribution in art. 4 (e/f) (residence franchising and distribution in art. 4 (e/f) (residence
franchisee, distributor)franchisee, distributor)- other contracts: residence of party obliged to characteristic other contracts: residence of party obliged to characteristic
performance (art. 4 II). performance (art. 4 II). - more subsidiary factor: « closest connection » (art. 4 IV)more subsidiary factor: « closest connection » (art. 4 IV)- contracts for carriage in art. 5contracts for carriage in art. 5 « Residence » defined in art. 19 Rome-I.« Residence » defined in art. 19 Rome-I.
Some more specific categoriesSome more specific categories- Assignability (& pledgeability) and relation with assigned Assignability (& pledgeability) and relation with assigned
debtor (art. 14 II): lex causae. There may be overriding debtor (art. 14 II): lex causae. There may be overriding mandatory limits (eg Belgian Act of July 12, 2015 against mandatory limits (eg Belgian Act of July 12, 2015 against vulture funds)vulture funds)
- Recourse between debtors (art. 16)Recourse between debtors (art. 16)
- Set-off (art. 17): law of the claim against which the right to Set-off (art. 17): law of the claim against which the right to set-off is asserted (« passive claim »)set-off is asserted (« passive claim »)
Convention on Choice of Court AgreementsConvention on Choice of Court Agreements Bills of exchange: uniform lawsBills of exchange: uniform laws Precontractual liability: Rome-II-RPrecontractual liability: Rome-II-R
Rome-II-Reg. Rome-II-Reg. In the EU: Regulation 864/2007 on the law applicable to In the EU: Regulation 864/2007 on the law applicable to
non-contractual obligations, on acts since Jan 11, 2009 (as non-contractual obligations, on acts since Jan 11, 2009 (as clarified in C-412/10, clarified in C-412/10, HomawooHomawoo).).
Scope of category « torts »; see art. 15Scope of category « torts »; see art. 15- disputed: - disputed: actio pauliana actio pauliana (damages is certainly within (damages is certainly within
864/2007; effect on the attacked legal act is rather under 864/2007; effect on the attacked legal act is rather under Rome-I)Rome-I)
Excluded from scope: privacy and personality rights (no Excluded from scope: privacy and personality rights (no agreement; thus jurisdiction becomes very important)agreement; thus jurisdiction becomes very important)
Priority (Priority (lex specialis lex specialis …) to:…) to:- existing conventions including non-member states (e.g. existing conventions including non-member states (e.g.
traffic accidents, …), traffic accidents, …), - EU EU leges speciales leges speciales on conflicts (e.g. e-commerce, on conflicts (e.g. e-commerce,
Rome-II-Reg. Rome-II-Reg. EU Regulation 864/2007 - Connection factor: EU Regulation 864/2007 - Connection factor: - - art. 4 I : where the damage occurs (neither the causing - art. 4 I : where the damage occurs (neither the causing
event, nor the indirect consequences) (but rules of safety and event, nor the indirect consequences) (but rules of safety and conduct: place of the event, art. 17) (NB for certain acts, conduct: place of the event, art. 17) (NB for certain acts, locating them is increasingly difficult, esp. in cyberspace)locating them is increasingly difficult, esp. in cyberspace)
- - both residing in the same country: 4 II- both residing in the same country: 4 II- - manifestly closer connection: 4 III- manifestly closer connection: 4 III- Specific rules for product liability, unfair competition, Specific rules for product liability, unfair competition,
- Alternative conflict rule for « direct actions » against insurers: Alternative conflict rule for « direct actions » against insurers: possible if either applicable tort law or applicable insurance possible if either applicable tort law or applicable insurance contract law allows it (art. 18) (such rule is missing in Rome-I)contract law allows it (art. 18) (such rule is missing in Rome-I)
Rome-II-Reg Rome-II-Reg Regulation 864/2007 on the law applicable to non-Regulation 864/2007 on the law applicable to non-
contractual obligations:contractual obligations: Category unjust enrichment: art. 10 Category unjust enrichment: art. 10 Negotiorum gestio: art. 11Negotiorum gestio: art. 11 Culpa in contrahendo: art. 12 Culpa in contrahendo: art. 12 Common rule: freedom of choice (art. 14)Common rule: freedom of choice (art. 14)
substantive rules of IPLsubstantive rules of IPL
« Substantive rules of IPL»: separate rules for transnational « Substantive rules of IPL»: separate rules for transnational contractual or other relationships (comp. also substantive contractual or other relationships (comp. also substantive law for transnational procedures). Such rules may be purely law for transnational procedures). Such rules may be purely national or of international originnational or of international origin
Mostly of international origin (treaties); different methods: Mostly of international origin (treaties); different methods: model law, treaty including rules, etc.model law, treaty including rules, etc.
Main examples:Main examples:- International sales of goodsInternational sales of goods- International transport (eg Maritime transport: Hague rules International transport (eg Maritime transport: Hague rules
relating to bills of lading 1924 > Hamburg rules 1978/1992 relating to bills of lading 1924 > Hamburg rules 1978/1992 (not very succesful) > Rotterdam rules 2009 (not yet in (not very succesful) > Rotterdam rules 2009 (not yet in force)force)
Exceptionally, treaties have unified or harmonised also the Exceptionally, treaties have unified or harmonised also the law for domestic relationships (e.g. bills of exchange; EU law for domestic relationships (e.g. bills of exchange; EU Directives) Directives)
substantive rules of IPLsubstantive rules of IPL Mode of application - attention (for illustrations, see Mode of application - attention (for illustrations, see
international sales):international sales):- In principle first apply the conflict rule (with exceptions)In principle first apply the conflict rule (with exceptions)- non-uniform law has subsidiary application (lacunae) non-uniform law has subsidiary application (lacunae)
Sometimes choice between national and international Sometimes choice between national and international « model » (incl. a so-called optional instrument)« model » (incl. a so-called optional instrument)
Reverse example: chosen law has rules that do not apply if Reverse example: chosen law has rules that do not apply if the law applies only on the basis of choice without a further the law applies only on the basis of choice without a further ‘sufficient connection’. Eg S. 12 of the UK Late Payment of ‘sufficient connection’. Eg S. 12 of the UK Late Payment of Commercial Debts Act 1998Commercial Debts Act 1998
IPL - lex mercatoriaIPL - lex mercatoria
Rules of non-national origin, not part of international public Rules of non-national origin, not part of international public law , which would be applicable to international law , which would be applicable to international relationships of private lawrelationships of private law
As a « material » source: many such rules play a role As a « material » source: many such rules play a role because they are « received » within domestic law for because they are « received » within domestic law for international relationships (as substantive rules of IPL); international relationships (as substantive rules of IPL); They are then applied on the basis of freedom of contract They are then applied on the basis of freedom of contract (if not contradicting mandatory law), custom or usage (for (if not contradicting mandatory law), custom or usage (for gap filling), as a source for the content of contractual gap filling), as a source for the content of contractual relationships, etc.....relationships, etc.....
IPL - lex mercatoriaIPL - lex mercatoria Formal source ? Maybe as customary lawFormal source ? Maybe as customary law
Also as an autonomous system of law ? (a possible choice Also as an autonomous system of law ? (a possible choice of law and not merely integration of a rule in a contract) ? of law and not merely integration of a rule in a contract) ?
Defended by i.a. Cl. Schmitthoff and more radically B. Defended by i.a. Cl. Schmitthoff and more radically B. Goldman. Goldman.
But 2 questions:But 2 questions:- « political » question (acceptance by states) « political » question (acceptance by states) - « practical » question (certainty of contract)« practical » question (certainty of contract)
Accepted in the practice of international commercial Accepted in the practice of international commercial arbitrationarbitration
IPL - lex mercatoriaIPL - lex mercatoria
Sources : trade customs, standard terms (e.g. UCP), non-Sources : trade customs, standard terms (e.g. UCP), non-implemented uniform law (?*), general principles and implemented uniform law (?*), general principles and concepts as received in transnational case law (esp. arbitral concepts as received in transnational case law (esp. arbitral decisions)decisions)
• * Eg choice by parties of a convention which is as such not * Eg choice by parties of a convention which is as such not applicable (HR 26 May 1989 on CMR)applicable (HR 26 May 1989 on CMR)
Attempts at codification: Unidroit PICC 1994/2004/2010. Its Attempts at codification: Unidroit PICC 1994/2004/2010. Its «format »: a restatement of the law.«format »: a restatement of the law.
