Conflict of Laws
Course Notes
Methodology
1. International facts
2. Characterisation
3. PIL Question
4. Sources
5. Scope
6. Concurrence
7. Application
Week 1
- PIL also known as Conflict of Laws (esp. common law countries)
- Regulates private law relations or disputes with an international element
- Private: family, civil & commercial law cases (natural, legal persons or state authority
acting as private person)
- International: international element
- Parties domiciled/habitually resident in different countries
- Relevant legal act in another country (marriage, divorce, tort, contract
performance)
- Service of documents, taking of evidence, enforcement of judgment in
another country
- Law: national law – conventions – EU-regulations
Examples
Jurisdiction
- Competence of court in disputes with international relevance/element
- Dutch residents cause damage in Italy
- Which court has jurisdiction
- Based on relevant legal rules
- PIL - damage to private shops (not public architecture)
Applicable Law
- Dutch residents purchase faulty item in France
, - Criteria for returning item etc.
- Choice of law
- Elements of specific provisions
- Which jurisdiction’s laws apply
Recognition & Enforcement
- Unfairly firing Polish employee in Spanish company
Terminology
- Jurisdiction: ‘forum’
- Forum delicti
- Forum rei sitae
- Court of place where property is located
- Choice of court clause
- Applicable law: lex
- Lex loci delicti
- Question of court competence - applicable law
- Lex rei sitae
- Law of place where property is situated
- Choice of law clause
Sources of Private International Law
- PIL regulated at national level
- International law - precedence over national law
- If international or EU law not applicable - PIL/domestic rules applied by court
- Can occur that both or neither of relevant countries have jurisdiction - national
rules differ
- PIL as a national subject
- Sources of PIL
- EU instruments (mostly Regulations)
- International instruments (mostly conventions)
- Hague Conference of Private International Law
- Regional: Mercosur, OAS
- Bilateral
- National sources
- Statutes (e.g. Book 10 Dutch Civil Code)
- Unwritten law
- Principles and custom (e.g. restatement)
- Scope of Instruments
- Material/substantive scope
, - Scope in subject matter
- Formal/geographical scope
- Scope in space
- Jurisdiction
- Temporal scope
- Scope in time
- When law is applicable until/from (amendments, entry into force etc.)
- If multiple instruments apply?
- Problem of concurrence
- International vs. National
- National rules: for example Art. 93/94 Dutch Constitution
- International often precedes
- Convention vs. EU Regulation
- In instrument itself
- Convention vs. Convention
- Vienna Convention on the Law of Treaties 1969
Pre-Class Question
1. With which legal questions is the subject of private international law concerned?
2. Which legislatures enact legislation to deal with the questions mentioned in question 1?
national law (case law, principles & customs) EU law/international instruments
3. What is the problem of characterisation?
characterisation/categorisation: understanding laws involved, categorising them
- the second stage of the procedure to resolve a lawsuit that involves foreign law
- connection between problem and regulation
problems: knowing what category to put into, relevant factors
Conflict of Laws - Historic Perspective
until 19th century: statutory approach
- unilateral approach - scope of national law
1849 FC von Savigny: European ‘classical’ COL rules
- international case - classification - connecting factors - national law
- neutrality: ‘Blindfold of Von Savigny’
- multilateral: can lead to application of the law of the forum but also national laws
American school: ‘Governmental interest analysis’ (50/60 but based on statutory theory in
Italy, France, NL 19th century)
- national case - classification - scope - international case
, 4. To which problem does the concept of renvoi apply?
- renvoi: (‘send back’) a subset of the choice of law rules and it may be applied
whenever a forum court is directed to consider the law of another state
- sent from one place to another
5. When determining that an international instrument applies in a given case, which
questions first need to be determined prior to being able to determine whether the
instrument
applies?
- determine scope to find out what legislation to use and whether it is applicable
(substance, geographical, time)
6. Explain how common law and civil law jurisdictions differ when it comes to the issue of
proof of foreign law in court.
civil law: work done by the judge/proof brought by judge
- look at laws, make decision
- judge searches for laws and what is needed, make decision based on their findings
- when foreign law in involved: judge finds applicable laws, translate, diplomatic aids,
international networks (communication between judges), support by
institutes/experts from abroad
- if foreign law cannot be established: lex fori (domestic law of forum)
- general exclusion of foreign law: public policy
Public Policy/Ordre Public
- fundamental institutions of PIL
- choice of law rules traditionally tailored to lead to law with closest connection to
case
- domestic and EU/international PIL allows judges to decline application foreign rule
to avoid unacceptable results
- ‘safety valve’ - limited to exceptional cases - set aside foreign provisions that are
contrary to basic or fundamental values of forum law & arrive at solutions in line
with forums perception of justice and fairness
- foreign law application can be disregarded if ‘manifestly incompatible’ with forums
public policy
common law: proof brought by lawyers
- parties do the work
- find laws, evidence/proof
- present argument to judge (neutral)
Course Notes
Methodology
1. International facts
2. Characterisation
3. PIL Question
4. Sources
5. Scope
6. Concurrence
7. Application
Week 1
- PIL also known as Conflict of Laws (esp. common law countries)
- Regulates private law relations or disputes with an international element
- Private: family, civil & commercial law cases (natural, legal persons or state authority
acting as private person)
- International: international element
- Parties domiciled/habitually resident in different countries
- Relevant legal act in another country (marriage, divorce, tort, contract
performance)
- Service of documents, taking of evidence, enforcement of judgment in
another country
- Law: national law – conventions – EU-regulations
Examples
Jurisdiction
- Competence of court in disputes with international relevance/element
- Dutch residents cause damage in Italy
- Which court has jurisdiction
- Based on relevant legal rules
- PIL - damage to private shops (not public architecture)
Applicable Law
- Dutch residents purchase faulty item in France
, - Criteria for returning item etc.
- Choice of law
- Elements of specific provisions
- Which jurisdiction’s laws apply
Recognition & Enforcement
- Unfairly firing Polish employee in Spanish company
Terminology
- Jurisdiction: ‘forum’
- Forum delicti
- Forum rei sitae
- Court of place where property is located
- Choice of court clause
- Applicable law: lex
- Lex loci delicti
- Question of court competence - applicable law
- Lex rei sitae
- Law of place where property is situated
- Choice of law clause
Sources of Private International Law
- PIL regulated at national level
- International law - precedence over national law
- If international or EU law not applicable - PIL/domestic rules applied by court
- Can occur that both or neither of relevant countries have jurisdiction - national
rules differ
- PIL as a national subject
- Sources of PIL
- EU instruments (mostly Regulations)
- International instruments (mostly conventions)
- Hague Conference of Private International Law
- Regional: Mercosur, OAS
- Bilateral
- National sources
- Statutes (e.g. Book 10 Dutch Civil Code)
- Unwritten law
- Principles and custom (e.g. restatement)
- Scope of Instruments
- Material/substantive scope
, - Scope in subject matter
- Formal/geographical scope
- Scope in space
- Jurisdiction
- Temporal scope
- Scope in time
- When law is applicable until/from (amendments, entry into force etc.)
- If multiple instruments apply?
- Problem of concurrence
- International vs. National
- National rules: for example Art. 93/94 Dutch Constitution
- International often precedes
- Convention vs. EU Regulation
- In instrument itself
- Convention vs. Convention
- Vienna Convention on the Law of Treaties 1969
Pre-Class Question
1. With which legal questions is the subject of private international law concerned?
2. Which legislatures enact legislation to deal with the questions mentioned in question 1?
national law (case law, principles & customs) EU law/international instruments
3. What is the problem of characterisation?
characterisation/categorisation: understanding laws involved, categorising them
- the second stage of the procedure to resolve a lawsuit that involves foreign law
- connection between problem and regulation
problems: knowing what category to put into, relevant factors
Conflict of Laws - Historic Perspective
until 19th century: statutory approach
- unilateral approach - scope of national law
1849 FC von Savigny: European ‘classical’ COL rules
- international case - classification - connecting factors - national law
- neutrality: ‘Blindfold of Von Savigny’
- multilateral: can lead to application of the law of the forum but also national laws
American school: ‘Governmental interest analysis’ (50/60 but based on statutory theory in
Italy, France, NL 19th century)
- national case - classification - scope - international case
, 4. To which problem does the concept of renvoi apply?
- renvoi: (‘send back’) a subset of the choice of law rules and it may be applied
whenever a forum court is directed to consider the law of another state
- sent from one place to another
5. When determining that an international instrument applies in a given case, which
questions first need to be determined prior to being able to determine whether the
instrument
applies?
- determine scope to find out what legislation to use and whether it is applicable
(substance, geographical, time)
6. Explain how common law and civil law jurisdictions differ when it comes to the issue of
proof of foreign law in court.
civil law: work done by the judge/proof brought by judge
- look at laws, make decision
- judge searches for laws and what is needed, make decision based on their findings
- when foreign law in involved: judge finds applicable laws, translate, diplomatic aids,
international networks (communication between judges), support by
institutes/experts from abroad
- if foreign law cannot be established: lex fori (domestic law of forum)
- general exclusion of foreign law: public policy
Public Policy/Ordre Public
- fundamental institutions of PIL
- choice of law rules traditionally tailored to lead to law with closest connection to
case
- domestic and EU/international PIL allows judges to decline application foreign rule
to avoid unacceptable results
- ‘safety valve’ - limited to exceptional cases - set aside foreign provisions that are
contrary to basic or fundamental values of forum law & arrive at solutions in line
with forums perception of justice and fairness
- foreign law application can be disregarded if ‘manifestly incompatible’ with forums
public policy
common law: proof brought by lawyers
- parties do the work
- find laws, evidence/proof
- present argument to judge (neutral)
