Private International Law
Exam:
Part 1: Application (12/20)
o Only statute book allowed
Only highlight, underline and cross-reference but nothing else
No writing of case names
Part 2: Essay (8/20)
o Open book: statutes book, case reader and handbook allowed => no other materials
o Everything can be hand-written in case reader and handbook, but no extra sheets
o Structure the answer, highlight key words
o Write legibly!!!
Introduction
Private international law = conflicts of law
Conflicts of law idea: ‘economic exchange brings people into contact, it does not bring them
into agreement’ this is not a true reflection of the overall nature of the subject. PIL
involves calm determination rather than strive.
The notion ‘private international law’ = more neutral
Narrow view of PIL = the rules applied by domestic courts to determine which laws apply to cases
with an international factual matrix (applicable law)
The broader approach includes jurisdiction and enforcement: the rules determining which court can
hear the case and the rules determining the effect of a judgement in a foreign country (recognition
and enforcement)
In all 3 areas of PIL, there has been international harmonisation, with the European example being
the most advanced. However, there is no requirement of harmonisation of PIL PIL is and remains
national law, even though harmonisation is possible
Private international law ‘international’ does not refer to the source of law but to the factual
matrix: there has to be an international element
PIL deals with issues arising in cross-border civil/commercial legal relationships
Differences with other branches of the law:
Public international law = law that regulates the relationships between States
o Private international law = deals with relationships between
individuals (private-law relationships) ‘private’ in PIL + it is
designed to function primarily at the domestic level, in domestic
courts
1
, International criminal law = from the moment you deal with criminals, PIL
falls away, except there might be a civil law element to a criminal law
proceeding
Civil procedure = all the rules that deal with the introduction, development
and finalization of a claim. They are not private international law rules but
they do often have an impact on jurisdictional choices: these rules can
determine why you might want to go to one court and not to the other.
In short:
International refers to the international element needed in the factual matrix
Private refers to the fact that the subject matter concerns private law issues
Very often it can be very attractive to make a legal relationship international the beauty of PIL is
that you can very often turn to various courts in various states to settle an issue + you can very often
use the law of other states then the law of the state you are in at that moment.
=> PIL is an opportunity! It is a tool: to get to a court that would be attractive to you
In the EU, there are a lot of regulations that harmonise the national rules on PIL. Those regulations
are applied via a wide range of case law you cannot penetrate PIL if you don’t read the cases!!!
Sources
Sources of private international law patchwork, spaghetti bowl
International level
o The Hague treaties an intergovernmental organisation that tries to harmonize the
approach of the community of states on issues of private international law issues by
using treaties
o Hague Judgments Convention 2019
Belgium has signed the Hague Conventions, but rarely ratifies them
Regional level EU Member state: point of reference will be European PIL these rules will
take precedence over national law
o Legal basis: Art. 81 TFEU the EU may adopt legislation on judicial cooperation.
National level = residual PIL issues that are not covered by EU-rules or other international
treaties signed by the State in question
Soft law
!! Our focus: Brussels Ia Regulation, Rome I & II Regulations, Insolvency Regulation
Questions PIL deals with 3 steps of PIL:
Which court can hear a case? (jurisdiction = forum)
Which law applies? (applicable law = lex causae)
What is the effect of a judgement in a foreign country? (recognition and enforcement)
o How can you, once you have a judgement from a court that has accepted jurisdiction,
make sure that the judgement can be recognized and enforced in other jurisdictions?
2
,Gleichlauf = the court with jurisdiction (forum) also applies its own law
E.g. Belgian court has jurisdiction and it applies Belgian law to the case => the applicable law is thus
also Belgian law
BUT: in many PIL scenario’s, there is no gleichlauf so you can step into a very local court and a
judge in the commercial code will be applying English contract law, a family judge will be applying
Algerian family law…
In an international context, you will need a certain amount of cooperation between jurisdictions.
Examples from the media:
David Beckham’s alleged US liaison: libel shopping, SLAPP (strategic lawsuits against public
participation)
o Forum shopping = you seek for a forum that you believe will be the most attractive to
you
o Facts: there was a woman who suggested that she had been sleeping with Beckham
on various occasions in various hotels in the United States. Beckham could
immediately show that this was complete nonsense because on the alleged nights of
the alleged affair, he could say “well actually I was playing 1000 miles away in Miami”
o International element
Beckham and the women were US residents with UK nationality
Mother company of the US publisher was German
The woman also had a European nationality
o Qualification? Libel and slander
o Where can he sue?
There is a big difference between suing for libel in England and in the US for
public figures like Beckham
If you are a public figure in the US, you not only have to show that
what was said is a lie, but ALSO that it was said with malicious intent,
with the express intention to harm you => very high bar for the
claimant
English libel law is very claimant friendly: it is much easier as a
claimant to establish libel in an English court.
The Beckhams did not sue in England given that there was no publication in
England, no print publication, no electronic publication, only publication on
the US site. They sued in the US on the basis of US libel law and lost because
they could not establish malicious intent
The Beckhams did win in a German court because they also sued the German
mother company, but with not a big award as compared to the US
Downside of forum shopping: An expensive libel suit which you initiate in a jurisdiction that is
claimant friendly might be enough to make someone shut up
SLAPP = strategic lawsuit against public participation: a lawsuit brought with the intention
of intimidating and silencing a critical party
3
, Johnny Depp and Amber Heard
o Facts: Heard published in the Washinton Post about her experiences as an abused
wife. She didn't mention Depp by name, but of course everyone knew that she was
talking about being abused by him
o Depp sued the UK tabloids calling him a wife beater in English courts hoping that the
claimant-friendly laws in England would assist him. In the end, they didn’t
o Depp is also suing in the US, more precisely in Virginia. This is interesting because
neither Depp nor Heard live or work in Virginia.
Virginia is the ‘locus delicti commissi’: printing presses and servers of the
Washington Post, in which Ms Heard made her allegedly defamatory
statements, are located in Virginia. Depp could have easily sued in California,
but the reason he didn’t sue in California are so-called Californian anti slap
laws.
o Why did Johnny Depp win even though there is this really high threshold? because
of the jury
Trump sues BBC for 10 million
o Sued for 10 billion in Florida on the basis of a program that edited a documentary
that made the capital storming ‘worse than it was’
o Trump is suing in libel but also unfair trading act, Trump is a public figure so he will
have to show malicious intent and show a territorial link to Florida (which might be
difficult)
Kate Middleton’s privacy
o Photos taken of her and her family, constituting an invasion of privacy
o Where to sue?
The problem at the time is that the English law doesn’t have a suit for
invasion of privacy
So they sued in France instead, since in French law there is a strong form of
action especially for famous people and their children => the French court
quickly found an invasion of privacy
o Recognition and enforcement: in this case, the paparazzi was Italian, the magazine
was French but the photos were also all over the internet. So this brings the question
on how you might be able to force Google for instance to remove information…
Joseph Weiler book review gone wrong
o Facts: Weiler is the editor of an online journal. One day the journal published a
critical book review by a German professor. It was about a book written by a French-
Israeli author
Book review = written by a German
Book = French-Israeli author
Editor of the journal = American
o The author of the book was offended by the review and sued in defamation. She sues
in France because there defamation is not only a civil law suit but also a criminal
offence. The advantage of it being a crime, is that you can file a complaint with the
investigation magistrate (onderzoeksrechter). This magistrate is duty bound to
investigate. All you have to do then, is hook your civil claim onto the criminal
4
Exam:
Part 1: Application (12/20)
o Only statute book allowed
Only highlight, underline and cross-reference but nothing else
No writing of case names
Part 2: Essay (8/20)
o Open book: statutes book, case reader and handbook allowed => no other materials
o Everything can be hand-written in case reader and handbook, but no extra sheets
o Structure the answer, highlight key words
o Write legibly!!!
Introduction
Private international law = conflicts of law
Conflicts of law idea: ‘economic exchange brings people into contact, it does not bring them
into agreement’ this is not a true reflection of the overall nature of the subject. PIL
involves calm determination rather than strive.
The notion ‘private international law’ = more neutral
Narrow view of PIL = the rules applied by domestic courts to determine which laws apply to cases
with an international factual matrix (applicable law)
The broader approach includes jurisdiction and enforcement: the rules determining which court can
hear the case and the rules determining the effect of a judgement in a foreign country (recognition
and enforcement)
In all 3 areas of PIL, there has been international harmonisation, with the European example being
the most advanced. However, there is no requirement of harmonisation of PIL PIL is and remains
national law, even though harmonisation is possible
Private international law ‘international’ does not refer to the source of law but to the factual
matrix: there has to be an international element
PIL deals with issues arising in cross-border civil/commercial legal relationships
Differences with other branches of the law:
Public international law = law that regulates the relationships between States
o Private international law = deals with relationships between
individuals (private-law relationships) ‘private’ in PIL + it is
designed to function primarily at the domestic level, in domestic
courts
1
, International criminal law = from the moment you deal with criminals, PIL
falls away, except there might be a civil law element to a criminal law
proceeding
Civil procedure = all the rules that deal with the introduction, development
and finalization of a claim. They are not private international law rules but
they do often have an impact on jurisdictional choices: these rules can
determine why you might want to go to one court and not to the other.
In short:
International refers to the international element needed in the factual matrix
Private refers to the fact that the subject matter concerns private law issues
Very often it can be very attractive to make a legal relationship international the beauty of PIL is
that you can very often turn to various courts in various states to settle an issue + you can very often
use the law of other states then the law of the state you are in at that moment.
=> PIL is an opportunity! It is a tool: to get to a court that would be attractive to you
In the EU, there are a lot of regulations that harmonise the national rules on PIL. Those regulations
are applied via a wide range of case law you cannot penetrate PIL if you don’t read the cases!!!
Sources
Sources of private international law patchwork, spaghetti bowl
International level
o The Hague treaties an intergovernmental organisation that tries to harmonize the
approach of the community of states on issues of private international law issues by
using treaties
o Hague Judgments Convention 2019
Belgium has signed the Hague Conventions, but rarely ratifies them
Regional level EU Member state: point of reference will be European PIL these rules will
take precedence over national law
o Legal basis: Art. 81 TFEU the EU may adopt legislation on judicial cooperation.
National level = residual PIL issues that are not covered by EU-rules or other international
treaties signed by the State in question
Soft law
!! Our focus: Brussels Ia Regulation, Rome I & II Regulations, Insolvency Regulation
Questions PIL deals with 3 steps of PIL:
Which court can hear a case? (jurisdiction = forum)
Which law applies? (applicable law = lex causae)
What is the effect of a judgement in a foreign country? (recognition and enforcement)
o How can you, once you have a judgement from a court that has accepted jurisdiction,
make sure that the judgement can be recognized and enforced in other jurisdictions?
2
,Gleichlauf = the court with jurisdiction (forum) also applies its own law
E.g. Belgian court has jurisdiction and it applies Belgian law to the case => the applicable law is thus
also Belgian law
BUT: in many PIL scenario’s, there is no gleichlauf so you can step into a very local court and a
judge in the commercial code will be applying English contract law, a family judge will be applying
Algerian family law…
In an international context, you will need a certain amount of cooperation between jurisdictions.
Examples from the media:
David Beckham’s alleged US liaison: libel shopping, SLAPP (strategic lawsuits against public
participation)
o Forum shopping = you seek for a forum that you believe will be the most attractive to
you
o Facts: there was a woman who suggested that she had been sleeping with Beckham
on various occasions in various hotels in the United States. Beckham could
immediately show that this was complete nonsense because on the alleged nights of
the alleged affair, he could say “well actually I was playing 1000 miles away in Miami”
o International element
Beckham and the women were US residents with UK nationality
Mother company of the US publisher was German
The woman also had a European nationality
o Qualification? Libel and slander
o Where can he sue?
There is a big difference between suing for libel in England and in the US for
public figures like Beckham
If you are a public figure in the US, you not only have to show that
what was said is a lie, but ALSO that it was said with malicious intent,
with the express intention to harm you => very high bar for the
claimant
English libel law is very claimant friendly: it is much easier as a
claimant to establish libel in an English court.
The Beckhams did not sue in England given that there was no publication in
England, no print publication, no electronic publication, only publication on
the US site. They sued in the US on the basis of US libel law and lost because
they could not establish malicious intent
The Beckhams did win in a German court because they also sued the German
mother company, but with not a big award as compared to the US
Downside of forum shopping: An expensive libel suit which you initiate in a jurisdiction that is
claimant friendly might be enough to make someone shut up
SLAPP = strategic lawsuit against public participation: a lawsuit brought with the intention
of intimidating and silencing a critical party
3
, Johnny Depp and Amber Heard
o Facts: Heard published in the Washinton Post about her experiences as an abused
wife. She didn't mention Depp by name, but of course everyone knew that she was
talking about being abused by him
o Depp sued the UK tabloids calling him a wife beater in English courts hoping that the
claimant-friendly laws in England would assist him. In the end, they didn’t
o Depp is also suing in the US, more precisely in Virginia. This is interesting because
neither Depp nor Heard live or work in Virginia.
Virginia is the ‘locus delicti commissi’: printing presses and servers of the
Washington Post, in which Ms Heard made her allegedly defamatory
statements, are located in Virginia. Depp could have easily sued in California,
but the reason he didn’t sue in California are so-called Californian anti slap
laws.
o Why did Johnny Depp win even though there is this really high threshold? because
of the jury
Trump sues BBC for 10 million
o Sued for 10 billion in Florida on the basis of a program that edited a documentary
that made the capital storming ‘worse than it was’
o Trump is suing in libel but also unfair trading act, Trump is a public figure so he will
have to show malicious intent and show a territorial link to Florida (which might be
difficult)
Kate Middleton’s privacy
o Photos taken of her and her family, constituting an invasion of privacy
o Where to sue?
The problem at the time is that the English law doesn’t have a suit for
invasion of privacy
So they sued in France instead, since in French law there is a strong form of
action especially for famous people and their children => the French court
quickly found an invasion of privacy
o Recognition and enforcement: in this case, the paparazzi was Italian, the magazine
was French but the photos were also all over the internet. So this brings the question
on how you might be able to force Google for instance to remove information…
Joseph Weiler book review gone wrong
o Facts: Weiler is the editor of an online journal. One day the journal published a
critical book review by a German professor. It was about a book written by a French-
Israeli author
Book review = written by a German
Book = French-Israeli author
Editor of the journal = American
o The author of the book was offended by the review and sued in defamation. She sues
in France because there defamation is not only a civil law suit but also a criminal
offence. The advantage of it being a crime, is that you can file a complaint with the
investigation magistrate (onderzoeksrechter). This magistrate is duty bound to
investigate. All you have to do then, is hook your civil claim onto the criminal
4
