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Conflict of Laws - steps necessary for answering exam question
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Conflict of laws class notes
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Summary Conflict of Laws: Lecture notes and literature, BLOCK 1,3,4,5
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Lecture 1 - introductionWhat is it all about?
- PIL concerns itself with:
o Private law: cases between private parties
No admin, no constitutional and no criminal law
Contract, tort, company, property and family law are main areas of
law
o International cases
When one of the businesses is located abroad
o Law (in the strict sense of law, rather than custom)
- Also known as conflict of laws (esp. in common law)
Main subjects
- Jurisdiction/competence of the court international jurisdiction: whether you go to
the Dutch court or to the Belgium court (international jurisdiction) and which level in
the hierarchy (absolute jurisdiction)
o Territorial jurisdiction (court in Rotterdam or in Amsterdam) is the exception
- Applicable law/choice of law: what law applies to the dispute at hand
- Recognition and enforcement of judgement: we have a decision but needs to be
recognized and enforced in another jurisdiction
- Administrative co-operation: available in the field of private international law
- Procedural law
o Service: serve documents outside the jurisdiction
o Evidence
Terminology
- Jurisdiction: ‘forum’
o Forum delicti = court of place where delict took place
o Forum rei sitae = court of place where property is located
o Choice of court clause only refers to choice of jurisdiction, doesn’t have
reference to choice of law.
- Applicable law: ‘lex’
o Lex loci delecti = law of the country where the delict took place
o Lex rei sitae = law of the place where the property is located
o Choice of law clause choose which laws applies
PIL questions
- Jurisdiction
- Applicable law
- Recognition and enforcement
- Administrative co-operation
o PIL is national law!
Each country has their own rules
Can lead to discrepancies and these lead to hardship
,Related subjects
- Nationality law: we use nationality as a connecting factor
- Interregional law: can occur whether we have specific rules for solving those
interregional diputes
- Comparative law
- Immigration law: immigration status can be relevant to whether you can go to a
particular court
- Public international law
- Uniform private law
- How is it linked? PIL is melting pot of all kinds of law.
Sources
- EU instruments (mostly Regulations)
- International instruments (mostly conventions)
o Scope of instruments:
Material/substantive scope: scope of an instrument in its subject
matter (to what kind of law it applies)
Formal/geographical scope: scope in space (instrument being
applicable with respect to certain citizens for example)
Temporal scope: scope in time (when does it apply with respect to
time)
- National sources
o Statutes (e.g. Book 10 Dutch Civil Code)
o Unwritten law
o Principles and custom (e.g. restatement)
But in the case of multiple instruments being applicable?
- If multiple international instruments are applicable, then a problem of concurrence
occurs.
o International vs. National
National rules say which one has superiority: for example, Art. 93/94
Dutch Constitution international rules supersede
o Convention vs. EU Regulation
In instrument itself regulate applicability
o Convention vs. Convention
Vienna Convention of Conventions 1969
Methodology
1. International facts
2. Characterization
3. PIL Question
a. Jurisdiction
b. Applicable law
c. Recognition and enforcement
4. Sources
a. European Union sources
b. International sources
, c. National sources
5. Scope
a. Substantive scope
b. Geographical scope
c. Temporal scope
6. Concurrence
a. which one of the instruments will apply if there are multiple instruments
applicable?
7. Application
a. Actually apply the instrument
Choice of law process
- Connecting factor + choice of law category = consequence
- Determination of relevant connecting factors
o Examples?
- Choice of law category
o Problems? Characterization
- Some of the problems when applying foreign law:
o Content of foreign law
o Incidental question
o Renvoi
o Public policy
Fact pattern
On 15th August 2017, Mr Smith (an Englishman living in Ireland) booked a taxi online. He had
attended a work party at De Zoete Inval in Waalwijk and wanted a taxi to take him back to
Breda. Whilst driving down the A59, the taxi driver was talking on his phone (not hands-
free), Mr Smith noted that the taxi was driving at 145km/h. The taxi-driver lost control of
the car after hitting a tree branch, swerved and hit the railings of the central division. The
taxi was subsequently hit from behind by another car. Mr Nederhals (a German citizen living
and working in Brussels) was the driver of the other car. In the end both the taxi and the
other car were totally written off, with Mr Nederhals and Mr Smith both sustaining injuries.
Both Mr Smith and Mr Nederhals now want to start judicial proceedings.
Conclusion
- Private international law is:
o Abstract
o Necessary
o Theoretical
o Important
o And maybe you can add some more words by the end of the course….
Question 1
What if there is a case in which a Dutch company/individual also living in the Netherlands
has an agreement with a citizen of, for instance, Sint Maarten (also born there), in which
they agreed that their dispute should be solved by using Dutch law. Can the Dutch
,company/individual still decide to bring a lawsuit before the court of Sint Maarten? And on
what basis yes or no?
I think Dutch law says that the country of residence of the defendant should be taken into
account when determining in which court the dispute is going to be solved but I am not sure
(short explanation Sint Maarten is an independent part of the Kingdom of the Netherlands.
This means that it has its own government and parliament who are responsible for their
own administration and legislation.)
Answer
Firstly, it is important to realize that there is a difference between concluding a choice-of-
law and concluding a choice-of-court agreement. In other words, the fact that the parties
have chosen to apply Dutch law to the substance of the dispute, does not automatically
mean that they have chosen for a Dutch court to deal with the case. As we went through
during todays' interactive session.
Secondly, your question relates to the field of private interregional law, instead of
private international law (considering that both the Netherlands and Saint Martin (or Sint
Maarten in Dutch) are part of the same Kingdom). If a Dutch court is seized, it will apply the
private international law rules currently in force in The Netherlands. The Dutch Supreme
Court has ordered that in this case and in accordance with the Statute of the Kingdom
of The Netherlands, we will need to apply the existing EU Regulations and
conventions analogously to attempt to solve the dispute. This, therefore, means that
despite the fact that an EU Regulation does not apply in Saint Martin, the Dutch court would
still use this instrument to determine its jurisdiction. If the case was brought before the
court in Saint Martin, then the court there would use its own private international law rules,
and would therefore not make reference to the EU Regulation.
Note: the rules of private interregional law will not be further discussed or assessed during
this course.
Question 2
I may have missed this during our first interactive session, but I am still not sure about the
answer to the pre-class question 6: Explain how common law and civil law jurisdictions differ
when it comes to the issue of proof of foreign law in court.
I apologize if you had explained this in class. I was unable to find notes related to this
question and hope that you can help clarify it. Thank you.
Answer
Good question! This will be dealt with in a little bit more detail later in the course, but
essentially the difference is that the common law systems see foreign law as a fact and
therefore must be proven by the parties in court. In civil law jurisdictions, foreign law is
regarded as law and therefore is an ex officio task of the court in order to determine.
,Lecture 6 – International Jurisdiction
History
- Brussels Convention 1968: it unified not only jurisdictional rules, but also recognition
and enforcement rules (double treaty; both sections of international procedural law)
o Amended version 1978
o Amended version 1982
o Amended version 1989
o Amended version 1996
o All the amendments deal with new Member States and case law;
multinational public international instrument
- Lugano Convention 1988: operating with respect to the European free-trader
association. Parallel convention alongside the Brussels Convention, Lugano is copy of
Brussels.
o Amended version 2007
o Discrepancy because the Brussels Convention got amended and Lugano not.
Amendment 2007 brings it back into conformity with the Brussels
Convention.
- Become Europeanized by treaty of Amsterdam 1997. Granting EU the possibility to
use European instruments to regulate also the field of private international law. 3
countries took a different stance with this respect: UK, Ireland and Denmark.
Denmark took a complete opt out of all. These does not apply to Denmark and
Denmark cannot use it. UK up until the Brexit had an opt out, but they were able to
opt in. They opted in in Brussels I and Brussels II.
- Brussels I Regulation (Nr. 44/2001)
o Applied to all MS of EU except for Denmark
o Only applies to geographical Netherlands, so not Bonaire etc.
o Brussels I-bis Regulation (Nr. 1215/2012)
Has replaced the 44/2001 Regulation
Scope and structure
Scope
- Substantive scope: Art. 1
o Deals with civil and commercial matters
E.g. Property law disputes, compensation on the basis of tort
Excl. family law and law of persons, bankruptcy, social security,
arbitration – dealt with in others areas of law
o “Civil and commercial matters” autonomous concept at EU level
LTU v. Eurocontrol: objectives of convention/regulation and general
principles in all MS (thus contract with public authority that acts in
exercise of its powers excluded)
- Geographical scope: Art.4-6
o Deals with the issues of which criteria apply to limit the application of this
instrument
o Defendant has to be domiciled in EU-MS (see Art. 62 and 63)
, Then we satisfy the geographical scope of the regulation, thus the
case falls within its geographical scope
If the defendant is not domiciled in EU-MS, according to art. 6, we are
entitled to refer to other sources of private international law either in
the field of conventions or domestic law rules
Art. 62 refers to the defendant’s domicile if the defendant is a natural
person
Art. 63 refers to the defendant’s domicile if the defendant is a legal
person (such as a business with legal personality)
o Article 4 only provides the main rule and there are a number of exceptions
which have an alternative geographical scope
o Exception for scope of Art. 24 and 25 (different) and 18 and 21 (universal)
Art. 24 deals with exclusive grounds of jurisdiction, e.g. issues of
immovable property
Regardless of the party’s domicile, if the immovable is located
in a MS, then the regulation is geographically applicable
Art. 25 deals with the possibility of making a choice of court clause
Regardless of the party’s domicile, if the parties have made a
choice for a court within an EU-MS, then we satisfy the
geographical scope
So, what we see is a totally different geographical scope than the
place where the defendant’s domicile. We see therefore that it is not
relevant with respect to article 4. If the defendant is domiciles in a MS
but the case falls within the scope of art. 24 or 25, we actually have to
check the geographical scope of those two articles rather than
checking the geographical scope of article 4 first.
Art. 18 and 21 have a universal geographical scope: no criteria which
apply to determine when we can use these articles
Deal with two specific areas of law: consumer contracts and
employment contracts
Regardless of the domicile of the company (consumer law) or
employer (employment) these rules will always apply
Within the context of consumer-based claims which are brought by
the consumer against the company, we have a universal geographical
scope, so therefore these rules would apply against an American
company. If the case is started in the Netherlands, we still will use
these rules of jurisdiction to determine whether the Dutch courts
have jurisdiction or not (art. 18)
The same is true for employment issues. We would always use the
Brussels I Bis regulation in any EU MS regardless of the domicile of the
employer (art. 21)
Summary
- Main rule in art. 4, defendant has their domicile in EU MS, we satisfy the
geographical scope. If the defendant does not have the domicile in a MS, we will not
apply the Brussels I Regulation. But there are two types of exceptions: art. 24 and 25
apply different grounds of geographical scope and art. 18 and 21 extent the scope
which is laid down in art. 4
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