INTRODUCTION TO PRIVATE INTERNATIONAL LAW
Aim, foundations and method of the PIL, its history, international organizations contributing to its development, sources of law
1. Roots of the Private International Law: multitude of legal systems
1.1. Specific versus general, or national versus international: civil law and ius gentium
see Exhibit 1 (The Institutes of Justinian)
1.2. Territorial principle versus personal principle: qua lege vivis
1.3. A part of the Law of Nations, or a part of each municipal law system?
2. In the search of the Private International Law method
2.1. The conflict method: determining the governing local law
(a) The statutory school: looking for the purpose of the given legislative act (public policy analysis)
(b) The Savigny method: looking for the proper law with which the given legal relationship is most closely connected (the general and the specific variation)
2.3. The direct, or the substantive method: finding or enacting a rule of law which specifically will govern international relationships (e.g.: laws regulating the status of foreigners in Poland)
3. The sources of Private International Law
3.1. International sources
(a) International organizations supporting the development of Private International Law
(b) Conventions (bilateral and multilateral; containing conflict rules and substantive rules)
§ Exhibit 2 (Convention On The Conflicts Of Laws Relating To The Form Of Testamentary Dispositions)
§ Exhibit 3 (United Nations Convention on Contracts for the International Sale of Goods)
(c) European Private International Law (Rome Convention, Rome I and Rome II regulations)
3.2. Polish municipal PIL: the 2011 Act and other sources
4. The contemporary structure of Polish Private International Law
4.1. Conflict rule and sovereignty
4.2. The narrow definition: law of the conflict of laws (uniformity of method)
4.3. The wide definition: law of international private relationships (conflict method plus direct method, uniformity of purpose)
4.4. Private International Law and International Civil Procedure (jurisdiction and recognition of foreign judgments)
4.5. Is Private International Law an ante-chamber to private substantive law in general?
Art. 1 of the Polish PYIL Act
The Codex Justinianus (529) compiled all of the extant (in Justinian's time) imperial constitutiones from the time of Hadrian. It used both the Codex Theodosianus and private collections such as the Codex Gregorianus and Codex Hermogenianus.
The Digest, or Pandects, was issued in 533, and was a greater achievement: it compiled the writings of the great Roman jurists such as Ulpian along with current edicts. It constituted both the current law of the time, and a turning point in Roman Law: from then on the sometimes contradictory case law of the past was subsumed into an ordered legal system.
The Institutes was intended as sort of legal textbook for law schools and included extracts from the two major works. Later, Justinian issued a number of other laws, mostly in Greek, which were called Novels.
Book I. Of Persons
JUSTICE is the constant and perpetual wish to render every one his due.
1. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.
2. Having explained these general terms, we think we shall commence our exposition of the law of the Roman people most advantageously, if we pursue at first a plain and easy path, and then proceed to explain particular details with the utmost care and exactness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen---we shall either cause him wholly to abandon his studies, or, after great toil, and often after great distrust to himself (the most frequent stumbling block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by an easier road, he might, without great labor, and without any distrust of his own powers, have been sooner conducted.
3. The maxims of law are these: to live honesty, to hurt no one, to give every one his due.
4. The study of law is divided into two branches; that of public and that of private law. Public law regards the government of the Roman empire; private law, the interest of the individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to the natural law, to the law of nations, and to the civil law.
The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the water. Hence comes the union of the male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides men are considered as having knowledge of this law.
1. Civil law is thus distinguished from the law of nations. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. We will take notice of this distinction as occasion may arise.
2. Civil law takes its name from the state which it governs, as, for instance, from Athens; for it would be very proper to speak of the laws of Solon or Draco as the civil law of Athens. And thus the law which the Roman people make use of is called the civil law of the Romans, or that of the Quirites; for the Romans are called Quirites from Quirinum. But whenever we speak of civil law, without adding the name of any state, we mean our own law; just as the Greeks, when "the poet" is spoken of without any name being expressed, mean the great Homer, and we Romans mean Virgil.
Convention On The Conflicts Of Laws Relating To The Form Of Testamentary Dispositions
(Entered into force 5 January 1964)
The States signatory to the present Convention,
Desiring to establish common provisions on the conflicts of laws relating to the form of testamentary dispositions,
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:
A testamentary disposition shall be valid as regards form if its form complies with the internal law:
a) of the place where the testator made it, or
b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or
e) so far as immovables are concerned, of the place where they are situated.
For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.
The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.
United Nations Convention on Contracts for the International Sale of Goods
The States Parties to this Convention,
Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,
Have agreed as follows:
Part I. Sphere of application and general provisions
CHAPTER I. SPHERE OF APPLICATION
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.
The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.
REGULATION (EC) No 593/2008
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 17 June 2008
on the law applicable to contractual obligations
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
Having regard to the Treaty establishing the European Community, and in particular Article 61(c) and the second indent of Article 67(5) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee,
Acting in accordance with the procedure laid down in Article 251 of the Treaty,
(1) The Community has set itself the objective of maintaining and developing an area of freedom, security and justice. For the progressive establishment of such an area, the Community is to adopt measures relating to judicial cooperation in civil matters with a cross-border impact to the extent necessary for the proper functioning of the internal market.
(2) According to Article 65, point (b) of the Treaty, these measures are to include those promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction.
HAVE ADOPTED THIS REGULATION:
1. This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial
REGULATION (EC) No 864/2007
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 11 July 2007
on the law applicable to non-contractual obligations
1. This Regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).