Tutorial 5 - Goods in private international law
Task 10 - Case: ‘The stolen painting’
1. Which court has international jurisdiction to hear the case, when Mr. Becker starts
proceedings?
We use probably Brussels I recast regulation. First we check if the countries (Germany and
Netherlands) are member to the regulation. Then, we determine the scope to see if the
regulation is really applicable:
- Material scope: art. 1 (1)
- Formal scope: arts. 4-6
- Temporal scope: arts. 66 and 81
We apply article 4!!
We use art. 62 to find out whether he resides in the MS, so you use art. 4 in conjunction with
art. 62.
Germany has jurisdiction. If you find out that a German court has jurisdiction then you must
first search in the private international law rules of Germany.
2. Which law is going to be applied?
German law accepts rule of renvoi, but the Dutch law excludes it.
We use the german law because we have established german jurisdiction and german law
accepts the rule of renvoi. Therefore, we apply the german conflict rules (art. 43 (1) EGBGB)
that determine that dutch law including its private international law is applicable. So the next
step is dutch private international law. If the dutch private international law tells us to apply
dutch law then it is easy, we apply dutch law:
Art. 10:127 BW (main rule) says that the law of the country where the good is situated
applies, so lex rei sitae.
Art. 3:84 BW is the general rule. It does not apply here because there is no valid title.
Art. 3:86 BW says that you become owner nevertheless, if you were in good faith. This
article is applicable.
The travelling of a movable does not affect the law applied to them. If however acts or facts
take place to the acquisition of movables these acts and facts are decisive. It is relevant
where the transfer happend.
3. If a foreign court would render a judgment on this issue, can that judgment be recognised
in another country of the European Union?
For recognition the formal scope changes (to 36), for all the other it stays the same. Art. 45
is the public policy exception, so the grounds for refusal.
So to recognise a judgmentere we apply art. 36 Brussels I Recast Regulation. There is no
special procedure required.
4. Can the judgment also be enforced?
Task 10 - Case: ‘The stolen painting’
1. Which court has international jurisdiction to hear the case, when Mr. Becker starts
proceedings?
We use probably Brussels I recast regulation. First we check if the countries (Germany and
Netherlands) are member to the regulation. Then, we determine the scope to see if the
regulation is really applicable:
- Material scope: art. 1 (1)
- Formal scope: arts. 4-6
- Temporal scope: arts. 66 and 81
We apply article 4!!
We use art. 62 to find out whether he resides in the MS, so you use art. 4 in conjunction with
art. 62.
Germany has jurisdiction. If you find out that a German court has jurisdiction then you must
first search in the private international law rules of Germany.
2. Which law is going to be applied?
German law accepts rule of renvoi, but the Dutch law excludes it.
We use the german law because we have established german jurisdiction and german law
accepts the rule of renvoi. Therefore, we apply the german conflict rules (art. 43 (1) EGBGB)
that determine that dutch law including its private international law is applicable. So the next
step is dutch private international law. If the dutch private international law tells us to apply
dutch law then it is easy, we apply dutch law:
Art. 10:127 BW (main rule) says that the law of the country where the good is situated
applies, so lex rei sitae.
Art. 3:84 BW is the general rule. It does not apply here because there is no valid title.
Art. 3:86 BW says that you become owner nevertheless, if you were in good faith. This
article is applicable.
The travelling of a movable does not affect the law applied to them. If however acts or facts
take place to the acquisition of movables these acts and facts are decisive. It is relevant
where the transfer happend.
3. If a foreign court would render a judgment on this issue, can that judgment be recognised
in another country of the European Union?
For recognition the formal scope changes (to 36), for all the other it stays the same. Art. 45
is the public policy exception, so the grounds for refusal.
So to recognise a judgmentere we apply art. 36 Brussels I Recast Regulation. There is no
special procedure required.
4. Can the judgment also be enforced?
