Deel 1 – Introduction
1.1 The concept, nature and development of Private International Law
PIL = increasingly relevant part of practice in a globalized world
Terminology employed to denote the subject matter of this volume varies
o Most commonly
Conflict of laws
PIL
o Very often PIL involves calm determination rather than struggle + legal certainty takes
precedence over suitability
o PIL would suggest a more neutral view on the int. conflicts
3 processes in PIL: each has led to varying degrees of convergence of harmonization
o Jurisdiction
o Applicable
o Recognition and enforcement of foreign judgements
Classic narrow view of PIL equates with conflict of laws proper
The boarder approach includes jurisdiction and enforcement
In all 3 areas of PIL, there has been increasing int. convergence or even harmonization
o PIL neither seeks nor requires regulatory convergence
“International” refers to factual matric (= int. component)
DOESN’T refer to nature of source of law: PIL remains nat. law
o No inherent requirement for int. convergence or harmonization of PIL exercise
Even when EU and int. law led to convergence and harmonization, PIL public IL
In 2 main aspects
Regulate relationships between private parties, not states
Functions primarily at the domestic level, in domestic courts
There is limited overlap
o Courts should not question validity of acts taken by a foreign government
Within that government’s territory
In government seizure of property
In relationship between human rights law and conflict of laws
In refugee/ migration law and conflict of laws
o More difficult to separate “private” nature of PIL and “public” nature of public IL
o Many of these discussions concern principle of universality or universal jurisdiction
o Criminal law does NOT engage PIL
1.2 Sources of Private International Law
Hague Conference = important source of PIL
o Active in 3 areas:
Protection of children, family and property relations
Int. legal cooperation and litigation
Int. commerce and financial law
o Works with conventions => unequal ratification practice
1.3 The Three Processes of Private International Law, and Standard “connecting
factors”
PIL involves determination of jurisdiction (forum), applicable law (lex causae)
Focus in academic development was on applicable law
Von Savigny re-emphasised the relevance of jurisdiction
o Is relevant for a variety of reasons
1.3.1 Procedural Issues
Choice of law never applies to these issues:
o They always depend on law of the country where proceedings are successfully brought: Lex
fori
1
, o What is and what is not part of “procedure” in itself may be subject of discussion
E.g. of procedural issues: recovery of cost and possibility of legal aid
1.3.2 Application of the law
Even when applicable law has been determined, not all judges will apply it in the same way
o Differences in competence and know-how of the bench play a role here, too
o Gleichlauf = circumstance in which court with jurisdiction applies “its own” laws to dispute,
may often seem attractive
o Bias, incompetence and corruption = strong reason wo wish to end up in one court or another
Von Savigny’s advocates a “blindfold” approach to PIL
o = identify applicable law without taking account of contents of that law or of any other
o Focus is on the Sitz or “seat” of a relationship in law
o HOWEEVER, there are plenty of opportunities for the court seised
o BUT his working method continues to determine PIL process especially in choice of law state
o Determination of applicable involves 3 steps (see below)
1.3.2.1 Characterisation (French: qualification) of the legal question
= step 1
Requires the facts to be accommodated within one legal categories to which a choice of law rule may
be applied
= crucial step
Determines in large degree the applicable law outcome
Trick to help remember: judge needs to put the facts in a particular pigeon hole (like in mailroom)
which in turn will lead to parcel being delivered on one or other doorstep
1.3.2.2 Connecting factor
= step 2
= which legal system connects most closely with this category of legal question
1.3.2.3 Lex Causae
= step 3
One applies substantive law of legal system identified by step 2
Standard connecting factors may be divided into 2 categories:
o Personal
o Causal
1.4 Characterisation, Renvoi and the “Incidental” issue or Vorfrage
Legal categories essentially are branches of private law
Characterization = direct result of von Savigny’s influence
o One employs obj. approach in search of the Sitz of facts
o NOT without faults: pays no regard to whether rule of law chosen to apply in case was
intended to be applied to facts
o NOT without correction: EU PIL allows for correction of obj. “Sitz” to have law apply with
“closest and most real” connection to case
NOT all nat. PIL uses same categories, = reason for harmonization attempts by EU
Parties will try an convince judge that their characterization is correct one
o Using reverse engineering their approach to characterisation to fit the applicable law they
preferred
o E.g. Rokkan v Rokkan
Subcategory of characterisation = incidental issue or Vorfrage
o Nat. law determined which applicable laws is connected to a given legal category
o BUT before one may apply it, one needs to decide on actual existence of category in facts at
issue
o E.g. cases:
Ogden v. Ogden
2
, About validation of marriage between English and French national without
parental consent
Court of Appeal UK (applying UK law) sees it as matter of formal validity if
marriage (lex locus celebrations)
=> consent is not relevant => marriage is valid
IF it was considered part of one’s capacity to marry (Frensh law would be
applied) => marriage = invalid
Schwebel v. Ungar
Jewish husband and wife married and domiciled in Hungary
=> relocating to Israel => stay in IT where husband divorces wife by “get”
o Not recognized by IT not Hun.
o Israel does recognized “get”
Wife moves to Canada + remaries
=> Canadian courts:
o Lex domicilii (Israel law) about the capacity of the wife to remarry
o About validity of divorce either:
Lex domicilii at relevant time (Hun.)
Lex loci actus (IT)
o European Regulations have harmonized the approach to the Vorfrage in contract law and in
torts
Renvoi relates to question whether a reference, by application of conflict of laws rules
o 2 types of renvoi:
Renvoi = remission, referral to the lex fori
Renvoi au second degré = transmission
o Foreign law should only be applied where it is interested in being applied
o Also plays a role in precenting forum shopping
o Eu treaties and nat. laws exclude renvoi: EU law does as a more or less general rule
1.5 Forum shopping and forum non conveniens
Is of high importance even to unsophisticated litigant
o = technique whereby a litigant selects his forum to sue, on the basis of suitability (see above)
o By no means a neg. or suspect phenomenon
o Only takes an abusive nature in those instances where a litigant selects a forum purely on the
basis of “qualities” of the forum which do not serve the rule of law
Nat. court may decline to exercise jurisdiction on the ground that a court in another State would be
more appropriate forum for the trial of the action
Sometimes used in a different sense, referring to choice of law
o Most often used because the other law offers legal instruments which other does not possess
Often looked at more favourably in common law than in civil law
1.6 The impact of European law on the private international law of the member
states
1.6.1 Legal basis
Has evolved:
o Art. 220 EEC
MS shall enter into negotiations with each other with a view to securing for benefit
of their nationals
o Maastricht treaty
Art. K.1.
o Treaty of Amsterdam
Art. 68 EC’s provision disappeared with the entry into force of the Lisbon Treaty
o TFEU
Council may adopt a decision determining those aspects of family law with cross-
boarder implications which may be subject of acts adopted by ordinary legislative
procedure
3
, 1.6.2 The development of European private international law policy
EU policy on PIL has changed quite dramatically
In past, finely tunes legal basis in successive EU treaties has required some creativity from the
European Commission
Predictability of forum = cornerstone of jurisdictional regime of EU
o BUT # instances in jurisdictional regulations
o => leads to multitude of for a
EU “conflicts resolution” lies in an ever expanding harmonization of rules on all 3 steps of PIL
o Further harmonization of substantive EU law may be next logical step in European conflicts
resolution
o Very existence of debate especially on applicable law shows, MS have a different approach to
wide variety of issues in private law
In 2014, a review of the Stockholm programme was launched
o Stocktaking and slowing the legislative pace were not mentioned
o The pace and depth of this harmonization process is such as to have triggered calls for
codification of European PIL
1.7 Brexit
1.7.1 The position of the United Kingdom vis-à-vis EU private international law prior
to Brexit
Brexit has caused headaches for many practitioners and observers of int. and EU law
History:
o UK joined EU on 1 jan. 1973 and the Brussels Convention (1968) in 1978
o In institutional arrangements on further harmonization of EU PIL the UK secured a flexible
“opt-in”
= not bound by further EU PIL instruments unless it notified (via letter) that it it
wishes to be subjected to the EU law
=> the Uk was bound of its own volition by successors to Brussels Convention
PIL instruments were seen as part and parcel of “area of freedom, security and justice”
1.7.2 The EU – UK withdrawal agreement and private international law
Agreements on withdrawal (WA) deals with judicial cooperation and commercial matters in art. 66-69
o WA extended temporal scope of application of European PIL rules
o => WA extended application of jurisdictional rules of main Brussels Ia Regulation to legal
proceedings “instituted before the end of the transition period”
Brussels Ia contuse to apply to
o Judgements given in legal proceedings instituted before end of transition period
o New claims added to proceedings commenced prior to 31 dec. 2020 and claims against new
defendants joined to such proceedings after that date
The European Enforcement Order Regulation also continues to apply
The thinking was to make the pending proceedings fully subject to existing (EU) law and case law as it
existed prior to Brexit day
Art. 66 WA:
o Rome I Regulation shall apply in respect of contracts concluded before the end of transition
period
o Rome II Regulation shall apply in respect of events fiving rise to damage
1.7.3 The situation post transition period
Trade and Cooperation Agreement (TCA) delivered a hard Brexit on judicial cooperation
Brussels Ia’s protective rules for consumers and employees have effectively been kept by the UK
UK sought membership of Lugano Convention
o Secured support from Norway, Iceland and Switzerland
o BUT, since UK was NOT looking to become member of EFTA approval needs to be sought from
all members of Lugano
4
1.1 The concept, nature and development of Private International Law
PIL = increasingly relevant part of practice in a globalized world
Terminology employed to denote the subject matter of this volume varies
o Most commonly
Conflict of laws
PIL
o Very often PIL involves calm determination rather than struggle + legal certainty takes
precedence over suitability
o PIL would suggest a more neutral view on the int. conflicts
3 processes in PIL: each has led to varying degrees of convergence of harmonization
o Jurisdiction
o Applicable
o Recognition and enforcement of foreign judgements
Classic narrow view of PIL equates with conflict of laws proper
The boarder approach includes jurisdiction and enforcement
In all 3 areas of PIL, there has been increasing int. convergence or even harmonization
o PIL neither seeks nor requires regulatory convergence
“International” refers to factual matric (= int. component)
DOESN’T refer to nature of source of law: PIL remains nat. law
o No inherent requirement for int. convergence or harmonization of PIL exercise
Even when EU and int. law led to convergence and harmonization, PIL public IL
In 2 main aspects
Regulate relationships between private parties, not states
Functions primarily at the domestic level, in domestic courts
There is limited overlap
o Courts should not question validity of acts taken by a foreign government
Within that government’s territory
In government seizure of property
In relationship between human rights law and conflict of laws
In refugee/ migration law and conflict of laws
o More difficult to separate “private” nature of PIL and “public” nature of public IL
o Many of these discussions concern principle of universality or universal jurisdiction
o Criminal law does NOT engage PIL
1.2 Sources of Private International Law
Hague Conference = important source of PIL
o Active in 3 areas:
Protection of children, family and property relations
Int. legal cooperation and litigation
Int. commerce and financial law
o Works with conventions => unequal ratification practice
1.3 The Three Processes of Private International Law, and Standard “connecting
factors”
PIL involves determination of jurisdiction (forum), applicable law (lex causae)
Focus in academic development was on applicable law
Von Savigny re-emphasised the relevance of jurisdiction
o Is relevant for a variety of reasons
1.3.1 Procedural Issues
Choice of law never applies to these issues:
o They always depend on law of the country where proceedings are successfully brought: Lex
fori
1
, o What is and what is not part of “procedure” in itself may be subject of discussion
E.g. of procedural issues: recovery of cost and possibility of legal aid
1.3.2 Application of the law
Even when applicable law has been determined, not all judges will apply it in the same way
o Differences in competence and know-how of the bench play a role here, too
o Gleichlauf = circumstance in which court with jurisdiction applies “its own” laws to dispute,
may often seem attractive
o Bias, incompetence and corruption = strong reason wo wish to end up in one court or another
Von Savigny’s advocates a “blindfold” approach to PIL
o = identify applicable law without taking account of contents of that law or of any other
o Focus is on the Sitz or “seat” of a relationship in law
o HOWEEVER, there are plenty of opportunities for the court seised
o BUT his working method continues to determine PIL process especially in choice of law state
o Determination of applicable involves 3 steps (see below)
1.3.2.1 Characterisation (French: qualification) of the legal question
= step 1
Requires the facts to be accommodated within one legal categories to which a choice of law rule may
be applied
= crucial step
Determines in large degree the applicable law outcome
Trick to help remember: judge needs to put the facts in a particular pigeon hole (like in mailroom)
which in turn will lead to parcel being delivered on one or other doorstep
1.3.2.2 Connecting factor
= step 2
= which legal system connects most closely with this category of legal question
1.3.2.3 Lex Causae
= step 3
One applies substantive law of legal system identified by step 2
Standard connecting factors may be divided into 2 categories:
o Personal
o Causal
1.4 Characterisation, Renvoi and the “Incidental” issue or Vorfrage
Legal categories essentially are branches of private law
Characterization = direct result of von Savigny’s influence
o One employs obj. approach in search of the Sitz of facts
o NOT without faults: pays no regard to whether rule of law chosen to apply in case was
intended to be applied to facts
o NOT without correction: EU PIL allows for correction of obj. “Sitz” to have law apply with
“closest and most real” connection to case
NOT all nat. PIL uses same categories, = reason for harmonization attempts by EU
Parties will try an convince judge that their characterization is correct one
o Using reverse engineering their approach to characterisation to fit the applicable law they
preferred
o E.g. Rokkan v Rokkan
Subcategory of characterisation = incidental issue or Vorfrage
o Nat. law determined which applicable laws is connected to a given legal category
o BUT before one may apply it, one needs to decide on actual existence of category in facts at
issue
o E.g. cases:
Ogden v. Ogden
2
, About validation of marriage between English and French national without
parental consent
Court of Appeal UK (applying UK law) sees it as matter of formal validity if
marriage (lex locus celebrations)
=> consent is not relevant => marriage is valid
IF it was considered part of one’s capacity to marry (Frensh law would be
applied) => marriage = invalid
Schwebel v. Ungar
Jewish husband and wife married and domiciled in Hungary
=> relocating to Israel => stay in IT where husband divorces wife by “get”
o Not recognized by IT not Hun.
o Israel does recognized “get”
Wife moves to Canada + remaries
=> Canadian courts:
o Lex domicilii (Israel law) about the capacity of the wife to remarry
o About validity of divorce either:
Lex domicilii at relevant time (Hun.)
Lex loci actus (IT)
o European Regulations have harmonized the approach to the Vorfrage in contract law and in
torts
Renvoi relates to question whether a reference, by application of conflict of laws rules
o 2 types of renvoi:
Renvoi = remission, referral to the lex fori
Renvoi au second degré = transmission
o Foreign law should only be applied where it is interested in being applied
o Also plays a role in precenting forum shopping
o Eu treaties and nat. laws exclude renvoi: EU law does as a more or less general rule
1.5 Forum shopping and forum non conveniens
Is of high importance even to unsophisticated litigant
o = technique whereby a litigant selects his forum to sue, on the basis of suitability (see above)
o By no means a neg. or suspect phenomenon
o Only takes an abusive nature in those instances where a litigant selects a forum purely on the
basis of “qualities” of the forum which do not serve the rule of law
Nat. court may decline to exercise jurisdiction on the ground that a court in another State would be
more appropriate forum for the trial of the action
Sometimes used in a different sense, referring to choice of law
o Most often used because the other law offers legal instruments which other does not possess
Often looked at more favourably in common law than in civil law
1.6 The impact of European law on the private international law of the member
states
1.6.1 Legal basis
Has evolved:
o Art. 220 EEC
MS shall enter into negotiations with each other with a view to securing for benefit
of their nationals
o Maastricht treaty
Art. K.1.
o Treaty of Amsterdam
Art. 68 EC’s provision disappeared with the entry into force of the Lisbon Treaty
o TFEU
Council may adopt a decision determining those aspects of family law with cross-
boarder implications which may be subject of acts adopted by ordinary legislative
procedure
3
, 1.6.2 The development of European private international law policy
EU policy on PIL has changed quite dramatically
In past, finely tunes legal basis in successive EU treaties has required some creativity from the
European Commission
Predictability of forum = cornerstone of jurisdictional regime of EU
o BUT # instances in jurisdictional regulations
o => leads to multitude of for a
EU “conflicts resolution” lies in an ever expanding harmonization of rules on all 3 steps of PIL
o Further harmonization of substantive EU law may be next logical step in European conflicts
resolution
o Very existence of debate especially on applicable law shows, MS have a different approach to
wide variety of issues in private law
In 2014, a review of the Stockholm programme was launched
o Stocktaking and slowing the legislative pace were not mentioned
o The pace and depth of this harmonization process is such as to have triggered calls for
codification of European PIL
1.7 Brexit
1.7.1 The position of the United Kingdom vis-à-vis EU private international law prior
to Brexit
Brexit has caused headaches for many practitioners and observers of int. and EU law
History:
o UK joined EU on 1 jan. 1973 and the Brussels Convention (1968) in 1978
o In institutional arrangements on further harmonization of EU PIL the UK secured a flexible
“opt-in”
= not bound by further EU PIL instruments unless it notified (via letter) that it it
wishes to be subjected to the EU law
=> the Uk was bound of its own volition by successors to Brussels Convention
PIL instruments were seen as part and parcel of “area of freedom, security and justice”
1.7.2 The EU – UK withdrawal agreement and private international law
Agreements on withdrawal (WA) deals with judicial cooperation and commercial matters in art. 66-69
o WA extended temporal scope of application of European PIL rules
o => WA extended application of jurisdictional rules of main Brussels Ia Regulation to legal
proceedings “instituted before the end of the transition period”
Brussels Ia contuse to apply to
o Judgements given in legal proceedings instituted before end of transition period
o New claims added to proceedings commenced prior to 31 dec. 2020 and claims against new
defendants joined to such proceedings after that date
The European Enforcement Order Regulation also continues to apply
The thinking was to make the pending proceedings fully subject to existing (EU) law and case law as it
existed prior to Brexit day
Art. 66 WA:
o Rome I Regulation shall apply in respect of contracts concluded before the end of transition
period
o Rome II Regulation shall apply in respect of events fiving rise to damage
1.7.3 The situation post transition period
Trade and Cooperation Agreement (TCA) delivered a hard Brexit on judicial cooperation
Brussels Ia’s protective rules for consumers and employees have effectively been kept by the UK
UK sought membership of Lugano Convention
o Secured support from Norway, Iceland and Switzerland
o BUT, since UK was NOT looking to become member of EFTA approval needs to be sought from
all members of Lugano
4
