INTRODUCTION TO PRIVATE INTERNATIONAL LAW

2011/2012

Lecture 2

Dr. Andrzej W. Wiśniewski

Jurisdiction in Civil and Commercial Matters and the PIL;

Structure of the Conflict Rule; Types of Connecting Factors;

Conflicts of 1st and 2nd Degree

1. Jurisdiction first!

1.1. Rules regulating jurisdiction do not belong to the conflict part of the Private International Law (repetition); jurisdiction is essentially subject to the lex fori, unless an internationally agreed regulation exists (as, e.g., the s.c. Brussels Regulation – 44/2001 – within the EU)

1.2. Each court applies the conflict rules of its jurisdiction (general principle subject to certain rare exceptions)

1.3. Talking about the proper law presupposes either (i) that the jurisdiction concerned is already established (as within this lecture, where we usually assume that Polish jurisdiction exists), or (ii) that the conflict norms are uniform in all relevant countries (as in the case when, in contractual matters, all relevant countries are bound by Rome I Regulation)

2. The structure of a conflict rule

2.1. Hypothesis of the conflict rule: the “scope”; abstract character of the scope of conflict rules

2.2. Disposition: the “connecting factor” or “link” + the order to apply the law so connected

2.3. The connecting factor’s internal structure: the “basis” and the “supplement” (genus proximum and differentia specifica, as e.g. locus acti; situs rei; habitual residence of a party

2.4. The connecting factor and the time factor: the division of the connecting factor into “nominal determination” and “temporal determination”. The significance of the time factor for the functioning of the norm

2.5. The types of connecting factors: lex voluntatis or the choice of law; personal connecting factors; other (“objective”, “real”) connecting factors

2.6. The search for the sanction of a conflict norm: back to the civil procedure

2.7. “Complete” and “unilateral” conflict rules

2.8. “Compulsory” (“directly applicable”) substantive norms: a special conflict norm within a substantive norm; see Art. 8 PIL; Art. 9 Rome I Regulation; Art. 16 Rome II Regulation.

See Exhibit 1 (below): as an example of a conflict norm, art. 24 § 1 and 2 of the PIL; as an example of a “unilateral” norm, art. 10 of the PIL

See Exhibit 2 (below): translation of Art. 449¹¹ of the Civil Code, as an example of a “directly applicable” substantive norm

3. Conflicts of 1^st and 2^nd degree; the function of the General Part of PIL

3.1. Conflicts of substantive laws

3.2. Conflicts involving conflict rules

3.3. Conflict of values (public policy reservation)

See Exhibit 3 (scan): examples of the structure of 1st and 2nd degree conflicts (to be handed out during the lecture)

Exhibit 1

PILA 2011

Article 41.

1. Ownership and other property rights shall be governed by the law of the country in which the object thereof is situated.

2. The acquisition and the loss of the ownership, as well as the acquisition, the loss, the change of the content, or of the priority, of other rights in rem shall be subject to the law of the country in which the object of these rights was situated at the time when the fact causing the above-mentioned legal effects occured.

PILA 1965 (repealed)

Article 10.

[First sentence]

If a foreigner who was incapable pursuant to the law of his nationality has made in Poland a legal act intended to have effects in Poland, the capability of this foreigner shall be governed by Polish law insofar as the protection of persons acting in good faith so requires.

Exhibit 2

The Civil Code

Title VI

Product Liability

(The Liability for Damage Caused by Dangerous Product)

…..

Article 449¹¹.

The liability determined by the provisions of this Title cannot be excluded or limited even in the case of a choice of foreign law.