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Private International Law Summary Brussel IBIS + ROME I / II
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Sorenza Diliberto 2020-2021Private International
Law
SECTION 1: INTRODUCTION
WHY DO WE NEED PRIVATE INTERNATIONAL LAW?
Here are some examples:
• Katie, an American web designer who lives in the Netherlands, is fired by her
employer, a Belgian company. The Belgian company is headquartered in Antwerp
but also has offices in Amsterdam and Berlin. Katie worked both in Antwerp and
in Amsterdam. She wants to fight her dismissal. This is a cross-border situation; it
involves different jurisdictions. Before which national court can Katie bring her
claim for unfair dismissal against her former employer? Which national law will
apply to the claim?
• A Belgian company buys a load of first-class wood from a company in Sweden. The
wood needs to be delivered in a warehouse in Hamburg. Upon delivery the wood
turns out to be of inferior quality, not in conformity with the contract. Before which
national court can the seller bring a claim against the buyer? Which national law
will apply to the dispute?
• José is a Spanish student at HEC Management School in Liège. He resides in Liège
for the year but normally lives in Paris. During a break he goes on a road trip with
fellow students. In the city of Munich another car, insured by a Swiss company,
collides with Jose’s vehicle. The English driver, living in Rome, had ignored a red
light. José sustains serious injuries. Before which national court does José have to
bring his claim for compensation against the driver? Which national law will apply
to the claim?
This is an example of the non-contractual field, there is no contract between the
parties – it is a tort.
WHAT IS PRIVATE INTERNATIONAL LAW?
Let’s take a closer look at each element of PIL:
PRIVATE
A private law is a law that regulates relationships between private parties (horizontal
dimension because both parties are on the same level).
Private parties are
• natural (every human being)
• or legal (company) persons.
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It is opposed to the concept of public law that regulates exercise of public authority; deals
with disputes between private party and state or states between themselves (vertical
dimension, the state is higher than the person, they are not on the same level).
For instance:
- Private law:
o sales law is a private law.
o The law regarding the leasing of buildings is a private law, because we rent
to a person.
o An employment contract
o A traffic accident
- Public law:
o tax law: it regulates the relationship between the government and the tax
payer.
o Criminal law is also a public law: if you commit a crime, the state prosecutes
you.
o Constitutional law
INTERNATIONAL
PIL is only concerned with international disputes, not purely internal disputes (only
relates to one country).
The cross-border element needs to be activated, triggered.
It is opposed to public international law, which is the body of rules legally binding on
States in their interactions with other States, individuals, organisations and other
entities. This includes diplomatic relations (determine how a state should treat a
diplomate who resides on their country), human rights, rules of war, law of the sea (ocean
resources) …
LAW
Law is not universally defined. The definition will depend on the society/country (Belgium
= Civil Law, Common Wealth = Common Law…).
In Continental Western Europe (civil law family), law is defined as:
• a set of rules of conduct. Law tells you how you should behave.
o There are two types of rules: prohibitions (what you cannot do) and orders
(what you must do).
o The intensity of the rules differs:
§ some rules apply to everyone all the time
• Example:
o criminal law
o tax law
§ others apply to specific persons
• Example:
o obligations of married people: the rules only applied to
married people
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o sales law,
o obligations for people renting a house…).
o Some rules are:
§ mandatory; it is a law that you cannot derogate by agreement.
§ Others are dispositive (gap-filling) law; they are only applied if the
parties did not make another agreement.
• Dispositive law = rule coming from the sales law, the law of
sale agreement in Belgium says that parties can choose the
place in which items need to be delivered. But if they have not
specified it in their contract, then delivery should take place
where the good was situated at the time of the conclusion of
the contract.
• Laws are established and enforced by public authority.
o It is the expression of the will of society, it differs from moral rules or
religious rules. Representatives are elected to legislation or execution and
creating the law. Representatives appointed to legislature or executive
through elections.
o The enforcement of the rule will be done by the judiciary, by the court. The
initiative for enforcement is different in public law and private law.
§ In private law, two individuals are fighting each other, one of them
will start the law court.
§ In public law, it is the state that will take the initiative (to pursue
somebody for a crime for example).
• The law aims to seek efficient organisation of society, characterised by
justice and legal certainty. The goal is to organize the society and prevent chaos,
this is done by balancing conflicted interests. Setting limits to individual freedom
is unavoidable to achieve these objectives. “one person’s liberty ends where
another’s begins” (John Stuart Mill)
The quality of the organisation depends on the quality of rules.
o Law needs to create legal certainty: it should be logical, predictable and
consistent.
o The rules have to provide justice. However, the definition of what is fair
changes from people to another, countries to another, periods of time (for
instance, think about adultery) … However, there’s always a core set of
values and rules that remains (freedom of speech, of religion, physical
integrity…). These are found in constitutions and treaties.
o Laws need to be efficient, they need to be adapted to the goal pursued. (if
we make new traffic rules we need to look to the accident statistics, if we
put a new traffic light there it’s because a lot of car accident took place in
the past, we need to see the data)
DOMAINS OF PRIVATE INTERNATIONAL LAW
There are 3 domains in PIL:
• International jurisdiction: if you have a law suit with a cross-border element,
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o which course has the competence to deal with the dispute? Which forum is
available to the plaintiff? Where can the litigation take place?
o WHERE ?: This is the “where” – question.
o PIL gives key to unlock doors of national courts.
• Applicable law:
o which law governs the dispute? In other words, which law does the court
have to apply to decide the dispute?
o That’s why PIL is sometimes called conflict of laws: it helps deciding which
law will be applicable.
o 2 options exist:
§ application of the own law (les fori) of the judge, jurisdiction and law
are in parallel = Gleichlauf. For instance, Belgian judge apply
Belgian law.
§ The other option is the application of a foreign law à common
misconception: judges always apply own substantive law
• Recognition and enforcement of foreign judgments and authentic
instruments:
Recognition = When we recognize, accept a foreign judgement, we accept the legal
consequences of a foreign decision.
Example: if 2 people get divorce in Belgium we recognize the divorce
so it’s regognition. While enforcement has to do with money, we ask
that the man has to pay the woman for the divorce.
Enforcement = we will use the foreign judgement as the basis to sees the assets of
the losing party. We put pressure on that party to pay what is owed to the
plaintive. Enforcement necessary in absence of voluntary compliance
o Winning in court does not always automatically means that what is
owned is paid. An enforcement is needed in absence of voluntary
compliance. The bailiff (huissier) needs to enforce. The bailiff will sees the
assets belonging to the defendant, in case he is not willing to pay the amount
owed. The defendant got a period of time to pay the money but if he doesn’t
pay the money, the bailiff will take his car (for example) and sell it at an
auction. The money generate trough the selling of that car will go to the
plaintive to satisfy the debt.
o What is the effect of foreign judgment? For instance, a German company
has obtained a judgment against a Dutch company from a French court for
100.000 euro; the German company wants to seize a bank account of the
Dutch company in Belgium; can the French judgment be enforced in
Belgium?
OBJECTIVE OF PRIVATE INTERNATIONAL LAW
PIL is the branch of law providing legal answers to issues arising out of cross-border
private relationships. It builds bridges between different legal systems, as law is
still primarily national. It thus has a coordinating function between these different
national laws. It aims to refer to correct judges and/or correct legal systems. It finally
regulates international situations but it is not part of international law.
Let’s take a closer look at this last part. PIL is mostly still national law, it is part of the
national legal system.
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