INTRODUCTION TO PRIVATE INTERNATIONAL LAW

2011/2012

Lecture 4

Dr. Andrzej W. Wiśniewski

Public policy and overriding statutes    

Change of the law applicable and law evasion

Application of foreign law by Polish courts

1. Public policy and overriding statutes

1.1. The concept and history of public policy (ordre public)

1.2. Public policy clause in the Polish PIL

Article 7

Foreign law shall not apply, should the effects of its application be contrary to the fundamental principles of the legal system of the Republic of Poland.

1.3.  Identification of fundamental principles of the Polish legal system

1.4.    Public policy clause in European conflict law

Rome I, Article 21; Rome II, Art. 26

Public policy of the forum

The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

1.5.    Overriding statutes

          Example 1:

  The Civil Code, Title VI: Product Liability

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.

Example 2:

The Code of Labour, Article 39

An employer cannot terminate the labour contract of an employee who would achieve the pension age within no more than 4 years […].  

Polish conflict law:

Article 8.

1.  Specification of a foreign law shall not exclude the application of those provisions of Polish law from the content or purpose of which it follows unequivocally that they govern the  given legal relationship irrespective of the law applicable thereto.

2. When applying the law governing the legal relationship, effect may be given to the mandatory provisions of the law of another country with which the given legal relationship has a close connection, if under the law of the latter country those provisions  are applicable irrespective of  the law  governing the given relationship. In considering whether to give effect to those mandatory provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

European conflict law:

Rome I, Article 9

Article 9

Overriding mandatory provisions

1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation.

2. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

3. Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

Rome II, Article 16

Overriding mandatory provisions

Nothing in this Regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligation.

2. Change of the law applicable and law evasion

2.1. Change of the law applicable (“change of statute”) in the case of changeable statute

2.2. Change of the law applicable in the case of stable statute

2.3. Change initiated by a party and law evasion

3. Application of foreign law by Polish courts

3.1. The principle of application of foreign law

3.2. Methods of establishment of the contents of foreign law

The Code of Civil Procedure

Article 1143

§ 1.   The court shall ex officio determine and apply foreign law. The court may apply to the Minister of Justice for making a text of such law available and for explanations concerning foreign court practice.

…

§ 3.   The court may also use other means in order to determine the content of a foreign law or foreign court practice, including obtaining an expert opinion.