Week 1: Introduction
Private International Law of Cross-Border Business (Activities)
● Cross border legal relationships
○ Relations entered with a party from abroad
○ Cross border torts
Gruma B.V
● Private limited company
● Business in sports apparel
● 2 directors
○ Frits (german living in Germany
○ Stephan (Dutch living in the Netherlands)
● Business is located in the Netherlands
Legal Diversity
● Law differs from one country to the next
Private International Law
● Private legal matters
○ Situations between private parties
○ Situations of contract, tort, intellectual property infringements, etc
● International situations
● Each country has its own rules on private international law
○ Laws on which jurisdictions, laws, and case law applies
○ No influence of international law
● Main elements of PIL:
○ Jurisdiction
■ Which court has jurisdiction over a given legal dispute?
■ Is the court component to adjudicate the matter?
■ Multiple courts have jurisdiction: claimant decides
○ Applicable Law
■ Which law applies to a given legal relationship?
■ A conflict of law arises
■ National courts are allowed to apply foreign law
● ‘The court knows the law’
● Use of expert opinions
○ Recognition and Enforcement of Foreign Judgements
■ Will a foreign judgement be recognized, is it enforceable? Under what conditions?
■ It’s so a judgement can be enforced against counterparties
■ Some judgements are easier recognized and enforced in countries than others
● E.g all cases in EU are recognized
● Pre-conditions for the applicability of PIL
○ Legal diversity
○ Cross-border legal relationship
● Why do we need PIL?
○ Laws in the world are not all the same
○ People tend to cross-border to do lots of different things
○ Legal diversity
○ Cross-border judicial matters
○ Solves conflict
○ Law of a universal basis
○ PIL is national law
● PIL rules are drawn up on the basis of present values and objectives of a countries own national standards
EU & Private International Law
● EU has power to develop instruments in all areas of PIL due to article 81 TFEU
● Important legal instruments:
○ Brussels Ibis Regulation — jurdiction & recognition
○ Rome I Regulation — applicable law contractual obligations
○ Rome II Regulation — applicable law non-contractual obligations
Regulation Scopes
● Temporal — the date from which the regulation applies
○ Matter outside of scope: check for earlier / later regulations
, ● Material — to which matter the regulation applies
○ Matter outside of scope: check if other regulation is applicable to the matter
● Formal — in relation to which countries the regulation applies
○ Matter outside of scope: usually no other regulation applies
Drafting General Terms and Conditions
● Terms and conditions usually include clauses on provisions and the laws which apply to the contract
● Step 1: Jurisdiction
○ Determine where you will be sued / want to be sued or be sued
○ We would like a court that we could easily access (+ access to a qualified lawyer)
○ There are some jurisdictions which are much more attractive than others
○ Brussels Ibis Regulation — Article 4
■ General rule
■ Subject to this Regulation, persons domiciled in a MS shall, whatever their nationality be sued in the
courts of that MS.
○ Brussels Ibis Regulation — Article 25
■ Party autonomy
■ If the parties, regardless of their domicile, have agreed that a court or the courts of a MS are to have
jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular
legal relationship, that court or those courts shall have jurisdiction (…). Such jurisdiction shall be
exclusive unless the parties have agreed otherwise.
○ Where do you want to sue/be sued?
■ Where the company is incorporated?
■ Where does the company have its headquarters?
■ Where the company’s assets are located?
■ Where litigation is the cheapest?
● Step 2: Will a judgement of this court be recognized and enforced where I need it to be?
○ European Union
■ Recognition and enforcement of all MS judgements
■ Made simple for the facilitation of commercial dealings within the EU internal market
■ Based on mutual trust
○ Outside of EU
■ Subject to national PIL of the forum
● Forum = chosen country to adjudicate the dispute
● Step 3: What type of choice of forum clause do I want to use?
○ Exclusive
■ Limited to one jurisdiction
■ E.g. The parties agree that any and all disputes arising from or relating to this Agreement, including its
formation and validity, shall be subject to the exclusive jurisdiction of the Dutch courts.
○ Non-Exclusive
■ Nominates one (or more) jurisdiction(s) but leaves parties the right to commence proceedings elsewhere
■ Example:
● 1: The parties may subject any dispute arising from this agreement to the jurisdiction of the
courts in France.
● 2: The choice of courts mentioned para 1 does not and is not be constructed to limited the
rights of a party to initiate proceedings against the other party in another court of competent
jurisdiction
○ Asymmetric
■ Exclusive for on party
■ Non-exclusive for the other party
■ You hereby consent to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulate
to the fairness and convenience of proceedings in such courts for all disputes, both contractual and non-
contractual, arising out of or relating to the use of the Services by you or any third party. You agree that all
claims you may have against Tripadvisor LLC arising from or relating to the Services must be heard and
resolved in a court of competent subject matter jurisdiction located in the Commonwealth of
Massachusetts. Use of the Services is unauthorised in any jurisdiction that does not give effect to all
provisions of these terms and conditions, including, without limitation, this paragraph. Nothing in this
clause shall limit the right of Tripadvisor LLC to take proceedings against you in any other court, or
courts, of competent jurisdiction.
● Step 4: Drafting the Choice of Forum
○ Any dispute arising out of or in connection with these terms and conditions shall be subject to the exclusive
jurisdiction of the Dutch courts
● Step 5: Applicable Law
○ Rome I Regulation — Article 3
Private International Law of Cross-Border Business (Activities)
● Cross border legal relationships
○ Relations entered with a party from abroad
○ Cross border torts
Gruma B.V
● Private limited company
● Business in sports apparel
● 2 directors
○ Frits (german living in Germany
○ Stephan (Dutch living in the Netherlands)
● Business is located in the Netherlands
Legal Diversity
● Law differs from one country to the next
Private International Law
● Private legal matters
○ Situations between private parties
○ Situations of contract, tort, intellectual property infringements, etc
● International situations
● Each country has its own rules on private international law
○ Laws on which jurisdictions, laws, and case law applies
○ No influence of international law
● Main elements of PIL:
○ Jurisdiction
■ Which court has jurisdiction over a given legal dispute?
■ Is the court component to adjudicate the matter?
■ Multiple courts have jurisdiction: claimant decides
○ Applicable Law
■ Which law applies to a given legal relationship?
■ A conflict of law arises
■ National courts are allowed to apply foreign law
● ‘The court knows the law’
● Use of expert opinions
○ Recognition and Enforcement of Foreign Judgements
■ Will a foreign judgement be recognized, is it enforceable? Under what conditions?
■ It’s so a judgement can be enforced against counterparties
■ Some judgements are easier recognized and enforced in countries than others
● E.g all cases in EU are recognized
● Pre-conditions for the applicability of PIL
○ Legal diversity
○ Cross-border legal relationship
● Why do we need PIL?
○ Laws in the world are not all the same
○ People tend to cross-border to do lots of different things
○ Legal diversity
○ Cross-border judicial matters
○ Solves conflict
○ Law of a universal basis
○ PIL is national law
● PIL rules are drawn up on the basis of present values and objectives of a countries own national standards
EU & Private International Law
● EU has power to develop instruments in all areas of PIL due to article 81 TFEU
● Important legal instruments:
○ Brussels Ibis Regulation — jurdiction & recognition
○ Rome I Regulation — applicable law contractual obligations
○ Rome II Regulation — applicable law non-contractual obligations
Regulation Scopes
● Temporal — the date from which the regulation applies
○ Matter outside of scope: check for earlier / later regulations
, ● Material — to which matter the regulation applies
○ Matter outside of scope: check if other regulation is applicable to the matter
● Formal — in relation to which countries the regulation applies
○ Matter outside of scope: usually no other regulation applies
Drafting General Terms and Conditions
● Terms and conditions usually include clauses on provisions and the laws which apply to the contract
● Step 1: Jurisdiction
○ Determine where you will be sued / want to be sued or be sued
○ We would like a court that we could easily access (+ access to a qualified lawyer)
○ There are some jurisdictions which are much more attractive than others
○ Brussels Ibis Regulation — Article 4
■ General rule
■ Subject to this Regulation, persons domiciled in a MS shall, whatever their nationality be sued in the
courts of that MS.
○ Brussels Ibis Regulation — Article 25
■ Party autonomy
■ If the parties, regardless of their domicile, have agreed that a court or the courts of a MS are to have
jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular
legal relationship, that court or those courts shall have jurisdiction (…). Such jurisdiction shall be
exclusive unless the parties have agreed otherwise.
○ Where do you want to sue/be sued?
■ Where the company is incorporated?
■ Where does the company have its headquarters?
■ Where the company’s assets are located?
■ Where litigation is the cheapest?
● Step 2: Will a judgement of this court be recognized and enforced where I need it to be?
○ European Union
■ Recognition and enforcement of all MS judgements
■ Made simple for the facilitation of commercial dealings within the EU internal market
■ Based on mutual trust
○ Outside of EU
■ Subject to national PIL of the forum
● Forum = chosen country to adjudicate the dispute
● Step 3: What type of choice of forum clause do I want to use?
○ Exclusive
■ Limited to one jurisdiction
■ E.g. The parties agree that any and all disputes arising from or relating to this Agreement, including its
formation and validity, shall be subject to the exclusive jurisdiction of the Dutch courts.
○ Non-Exclusive
■ Nominates one (or more) jurisdiction(s) but leaves parties the right to commence proceedings elsewhere
■ Example:
● 1: The parties may subject any dispute arising from this agreement to the jurisdiction of the
courts in France.
● 2: The choice of courts mentioned para 1 does not and is not be constructed to limited the
rights of a party to initiate proceedings against the other party in another court of competent
jurisdiction
○ Asymmetric
■ Exclusive for on party
■ Non-exclusive for the other party
■ You hereby consent to the exclusive jurisdiction and venue of courts in Massachusetts, USA and stipulate
to the fairness and convenience of proceedings in such courts for all disputes, both contractual and non-
contractual, arising out of or relating to the use of the Services by you or any third party. You agree that all
claims you may have against Tripadvisor LLC arising from or relating to the Services must be heard and
resolved in a court of competent subject matter jurisdiction located in the Commonwealth of
Massachusetts. Use of the Services is unauthorised in any jurisdiction that does not give effect to all
provisions of these terms and conditions, including, without limitation, this paragraph. Nothing in this
clause shall limit the right of Tripadvisor LLC to take proceedings against you in any other court, or
courts, of competent jurisdiction.
● Step 4: Drafting the Choice of Forum
○ Any dispute arising out of or in connection with these terms and conditions shall be subject to the exclusive
jurisdiction of the Dutch courts
● Step 5: Applicable Law
○ Rome I Regulation — Article 3
