COMPARATIVE PRIVATE INTERNATIONAL LAW
SEMINAR 1A – Introduction
What is private international law?
This question contains 3 issues.
1) Issues of Jurisdiction: which courts have jurisdiction over a particular case.
Once I found a court that is willing to take my case;
2) Which law will be applicable: Let’s say Dutch court said I will handle your case then
the Dutch court will have to determine my case on the basis of a particular law.
Once the Dutch court said yes there is indeed a breach of contract and you are entitled to
damages then what if the German counter party doesn’t pay the damages?
3) Recognition and enforcement of a judgment
Example 1: Tata Steel Europe (a Dutch firm involved in producing steel) joined forces with a
South Korean company developed hyperloop tubes.
We need private international law to find out which court has jurisdiction, which law will be
applicable, the recognition and enforcement of a judgment.
Example 2: Uber (an American company) acting on the Dutch market. Uber announced
dismissals of their employees all around the world and in NL Uber was accused of pressuring
its employees to quit so instead of laying them off it pressures its employees.
Situation: American company operating in the Netherlands, making employment contracts
with Dutch people. In this case there is an international relationship because we have an
American company entering employment contracts with Dutch people.
Question: which law governs this contract and can Uber and its employees just decide to
have a specific forum law applying?
Example 3: I booked a ski trip from a Czech travel agency to Italy. Now the trip has been
cancelled, from whom I should claim damages? If the travel agency actively targeting
consumers from the Netherlands, then the Dutch courts have a reason to have jurisdiction
over that case. It protects consumers from having to travel all the way to the Czech
Republic.
On the basis of the rules of international private law, if Czech law is applicable then the
Dutch courts will apply Czech law.
Example 4: Girl from Kenya, guy from China gets marry. Questions of private int. law. Which
law will govern their property, marriage.
We will largely deal with European legislation.
Why would we need private international law?
Private international law wouldn’t be needed if all laws of the world was the same. Private
international law is still national law because the rules of PIL in the Netherlands differ from
the rules of PIL in France. Just national law.
,Private international law only relates to private legal matters such as contracts, torts. It
only applies to international situations. There must be a foreign element.
Conflict of law used to be at the heart of private international law.
Private int law consists of 3 elements.
Example 5: You ordered something online, IP Disputes.
Questions of private international law occurs every day. They become more and more
important since we have globalization. It has become very very easy to engage cross border
legal relationship.
When facing an international dispute what would be the proper course of action?
- Parties may while making an agreement determine which court to go to.
- Private int law also holds some consumer protection laws.
Determining the applicable law to my case is something that happens on the basis of what
we called lex fori. In the sense that once we had established Dutch courts have jurisdiction
over my case then the Dutch courts determine the applicable rule to my case. The court that
has, on the basis of its rules of private international law will determine which law applies. If I
go to the courts of NL, Dutch courts on the basis of Dutch private international law
determine the applicable law. Same goes for Turkey, China.
Tort is under the scope of civil and commercial law. Falls under Brussels I Bis Regulation and
this regulation regulates issues of jurisdiction and enforcement of judgments.
General Rule: Article 4 of the Brussels I Bis Regulation
Exceptions: Art. 7: In situations concerning tort, the courts for the place where the harmful
event occurred may have jurisdiction.
Option of the plaintiff: person suing Valentino Rossi can sue in Italy or in Spain.
Once the Spanish court determine jurisdiction they must choose which law applies.
Rome 2 Regulation =>
Art.4. only the place where the direct damage is done is taken into consideration when
determining the place where the damage occurs.
Art. 17. Rules of safety and conduct can be taken into account by the court.
SOURCES
- National law
- Treaties
- EU Regulations and Directives
- Hague Convention on Private International Law
- Case Law
,In Roman times there was one law applying to Romans and another law for foreigners (ius
gentium). Ius gentium also had a court system.
Post Roman glossators – 14th century statutors: legal scholars from Italy discussed when
your own law should apply
There were rules differentiaed on the basis of subject matter, we had rules that were
specific to a person, to a property and some mixed rules.
While statutists had a statutory approach on when should our own law apply and under
what conditions can my own law apply outside my territory that was the basic premise from
which the Dutch statutes departed however, at one point they looked at this differently and
asked the question: when should foreign law apply within my borders?
Then they said they could allow the application of foreign law on the basis of the committee
of the nations or the committee. The idea behind that is basically they allowed the
application of common law as a sign of good will towards other countries.
Dutch statutors were the first to consider the application of foreign law within your own
borders and today it is still possible for the Dutch courts to apply the laws of another
country.
However the majority of today’s Private International Law is provided by a different scholar
and that is Von Savigny.
Abstract approach towards private international law. The basic idea he departed is
state sovereignty. He said the starting point should not be when do I apply my own
law but the starting point should be the international legal relationship. I must
determine the law that governs the international legal relationship and in looking at
that legal relationship, I must not look at which law might be better so would Dutch
law be better than German law is not something that I will look at. All laws are equal
because it is a neutral way of looking at different things. Under this approach the
content of the substantive law is irrelevant. The only thing that we look at is the
law that has the closest connection to a legal dispute and that is the principle of
closest connection is a principle that we still rely on today. Look at the legal
relationship and you must determine which law has the closest connection to my
conflict and in order to determine that for Savigny the system of reference is
important. He rejected this comity approach, we do not just fly forum law on the
basis of goodwill. Instead, spirit of nations.
We must have these connecting factors formulated in a neutral way. He wanted a
harmony of decisions. It requires the existence of a unified private international
law. The same applicable law will govern your relationship regardless where you
initiate the proceedings. It is still not the case today. So the Savignian method is a
method of reference and has been subject to adaptation.
There have been some conflicting theories. We have the best law approach where
people thought that it was up to the court to make an assessment of the possible
applicable laws.
Doctrines we added to the Savignian approach:
, SEMINAR 1B
We will discuss 3 elements of private international law:
- Issue of jurisdiction: which court can I go to
- Conflict of laws: applicable law
- Recognition and Enforcement
Modern private international law: mostly taking the theory developed by Von Savigny and
build on it.
If we have an international legal relationship,
Under the theory of Savigny, the end result would always be the same whichever court you
go. We must find where does that legal relationship belong.
Private international law is today still more like national law.
I. JURISDICTION
Which court has jurisdiction? You must go to a national court. Issues of private
international law do not extend to public law. It should be a
Private law matter
International or cross-border component
Once your case involves a private law matter and involves a cross border element then
the national courts will have to determine its jurisdiction on the basis of private
international law. In establishing jurisdiction, the court will determine whether it has
jurisdiction. The court will only assess whether it has jurisdiction and it will not say
anything about the jurisdiction of another court therefore it is one sided in character.
One-sided character: Determination of jurisdiction is one sided in character. The
court will only say if it has jurisdiction in that case they will not say whether other
courts have jurisdiction over this case.
In determining jurisdiction, the court will only talk about on the basis of its own private
international law, whether it has jurisdiction over that particular case or not. It will not
speak about other foreign court’s jurisdiction.
II. Conflict of Laws = Applicable law (the most important part of private
international law)
Applicable law: Determining the applicable law to your particular international legal
relationship. The rules of Private int law are national in nature . We still largely apply
the principle of the closest connection: we still want to go to the closest court. We
still aim to bring this legal relationship to home, to the place where it belongs.
There are exceptions to the principle of closest connection but still it is the
underlying theory.
We have:
- Unilateral conflict rules: Only states when they themselves apply. This particular
rule only applies to businesses situated in NL. Unilateral conflict rules. At the very
early stages we have discussed the Italian statutists. Their question was always when
should my own law apply and under which circumstances. The same goes for
SEMINAR 1A – Introduction
What is private international law?
This question contains 3 issues.
1) Issues of Jurisdiction: which courts have jurisdiction over a particular case.
Once I found a court that is willing to take my case;
2) Which law will be applicable: Let’s say Dutch court said I will handle your case then
the Dutch court will have to determine my case on the basis of a particular law.
Once the Dutch court said yes there is indeed a breach of contract and you are entitled to
damages then what if the German counter party doesn’t pay the damages?
3) Recognition and enforcement of a judgment
Example 1: Tata Steel Europe (a Dutch firm involved in producing steel) joined forces with a
South Korean company developed hyperloop tubes.
We need private international law to find out which court has jurisdiction, which law will be
applicable, the recognition and enforcement of a judgment.
Example 2: Uber (an American company) acting on the Dutch market. Uber announced
dismissals of their employees all around the world and in NL Uber was accused of pressuring
its employees to quit so instead of laying them off it pressures its employees.
Situation: American company operating in the Netherlands, making employment contracts
with Dutch people. In this case there is an international relationship because we have an
American company entering employment contracts with Dutch people.
Question: which law governs this contract and can Uber and its employees just decide to
have a specific forum law applying?
Example 3: I booked a ski trip from a Czech travel agency to Italy. Now the trip has been
cancelled, from whom I should claim damages? If the travel agency actively targeting
consumers from the Netherlands, then the Dutch courts have a reason to have jurisdiction
over that case. It protects consumers from having to travel all the way to the Czech
Republic.
On the basis of the rules of international private law, if Czech law is applicable then the
Dutch courts will apply Czech law.
Example 4: Girl from Kenya, guy from China gets marry. Questions of private int. law. Which
law will govern their property, marriage.
We will largely deal with European legislation.
Why would we need private international law?
Private international law wouldn’t be needed if all laws of the world was the same. Private
international law is still national law because the rules of PIL in the Netherlands differ from
the rules of PIL in France. Just national law.
,Private international law only relates to private legal matters such as contracts, torts. It
only applies to international situations. There must be a foreign element.
Conflict of law used to be at the heart of private international law.
Private int law consists of 3 elements.
Example 5: You ordered something online, IP Disputes.
Questions of private international law occurs every day. They become more and more
important since we have globalization. It has become very very easy to engage cross border
legal relationship.
When facing an international dispute what would be the proper course of action?
- Parties may while making an agreement determine which court to go to.
- Private int law also holds some consumer protection laws.
Determining the applicable law to my case is something that happens on the basis of what
we called lex fori. In the sense that once we had established Dutch courts have jurisdiction
over my case then the Dutch courts determine the applicable rule to my case. The court that
has, on the basis of its rules of private international law will determine which law applies. If I
go to the courts of NL, Dutch courts on the basis of Dutch private international law
determine the applicable law. Same goes for Turkey, China.
Tort is under the scope of civil and commercial law. Falls under Brussels I Bis Regulation and
this regulation regulates issues of jurisdiction and enforcement of judgments.
General Rule: Article 4 of the Brussels I Bis Regulation
Exceptions: Art. 7: In situations concerning tort, the courts for the place where the harmful
event occurred may have jurisdiction.
Option of the plaintiff: person suing Valentino Rossi can sue in Italy or in Spain.
Once the Spanish court determine jurisdiction they must choose which law applies.
Rome 2 Regulation =>
Art.4. only the place where the direct damage is done is taken into consideration when
determining the place where the damage occurs.
Art. 17. Rules of safety and conduct can be taken into account by the court.
SOURCES
- National law
- Treaties
- EU Regulations and Directives
- Hague Convention on Private International Law
- Case Law
,In Roman times there was one law applying to Romans and another law for foreigners (ius
gentium). Ius gentium also had a court system.
Post Roman glossators – 14th century statutors: legal scholars from Italy discussed when
your own law should apply
There were rules differentiaed on the basis of subject matter, we had rules that were
specific to a person, to a property and some mixed rules.
While statutists had a statutory approach on when should our own law apply and under
what conditions can my own law apply outside my territory that was the basic premise from
which the Dutch statutes departed however, at one point they looked at this differently and
asked the question: when should foreign law apply within my borders?
Then they said they could allow the application of foreign law on the basis of the committee
of the nations or the committee. The idea behind that is basically they allowed the
application of common law as a sign of good will towards other countries.
Dutch statutors were the first to consider the application of foreign law within your own
borders and today it is still possible for the Dutch courts to apply the laws of another
country.
However the majority of today’s Private International Law is provided by a different scholar
and that is Von Savigny.
Abstract approach towards private international law. The basic idea he departed is
state sovereignty. He said the starting point should not be when do I apply my own
law but the starting point should be the international legal relationship. I must
determine the law that governs the international legal relationship and in looking at
that legal relationship, I must not look at which law might be better so would Dutch
law be better than German law is not something that I will look at. All laws are equal
because it is a neutral way of looking at different things. Under this approach the
content of the substantive law is irrelevant. The only thing that we look at is the
law that has the closest connection to a legal dispute and that is the principle of
closest connection is a principle that we still rely on today. Look at the legal
relationship and you must determine which law has the closest connection to my
conflict and in order to determine that for Savigny the system of reference is
important. He rejected this comity approach, we do not just fly forum law on the
basis of goodwill. Instead, spirit of nations.
We must have these connecting factors formulated in a neutral way. He wanted a
harmony of decisions. It requires the existence of a unified private international
law. The same applicable law will govern your relationship regardless where you
initiate the proceedings. It is still not the case today. So the Savignian method is a
method of reference and has been subject to adaptation.
There have been some conflicting theories. We have the best law approach where
people thought that it was up to the court to make an assessment of the possible
applicable laws.
Doctrines we added to the Savignian approach:
, SEMINAR 1B
We will discuss 3 elements of private international law:
- Issue of jurisdiction: which court can I go to
- Conflict of laws: applicable law
- Recognition and Enforcement
Modern private international law: mostly taking the theory developed by Von Savigny and
build on it.
If we have an international legal relationship,
Under the theory of Savigny, the end result would always be the same whichever court you
go. We must find where does that legal relationship belong.
Private international law is today still more like national law.
I. JURISDICTION
Which court has jurisdiction? You must go to a national court. Issues of private
international law do not extend to public law. It should be a
Private law matter
International or cross-border component
Once your case involves a private law matter and involves a cross border element then
the national courts will have to determine its jurisdiction on the basis of private
international law. In establishing jurisdiction, the court will determine whether it has
jurisdiction. The court will only assess whether it has jurisdiction and it will not say
anything about the jurisdiction of another court therefore it is one sided in character.
One-sided character: Determination of jurisdiction is one sided in character. The
court will only say if it has jurisdiction in that case they will not say whether other
courts have jurisdiction over this case.
In determining jurisdiction, the court will only talk about on the basis of its own private
international law, whether it has jurisdiction over that particular case or not. It will not
speak about other foreign court’s jurisdiction.
II. Conflict of Laws = Applicable law (the most important part of private
international law)
Applicable law: Determining the applicable law to your particular international legal
relationship. The rules of Private int law are national in nature . We still largely apply
the principle of the closest connection: we still want to go to the closest court. We
still aim to bring this legal relationship to home, to the place where it belongs.
There are exceptions to the principle of closest connection but still it is the
underlying theory.
We have:
- Unilateral conflict rules: Only states when they themselves apply. This particular
rule only applies to businesses situated in NL. Unilateral conflict rules. At the very
early stages we have discussed the Italian statutists. Their question was always when
should my own law apply and under which circumstances. The same goes for
