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Conflicts of Law Summary (Video lectures + tutorials)!
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Conflicts of Law Video Lectures + TutorialsWeek 1 Introduction
What exactly is private international law?
- PIL concerns itself with:
→ Private Law: cases between private parties (e.g. tort law, property, family, company etc);
whether they are individuals or legal entities; but not dealing with the state e.g. administrative
law, criminal law or constitutional law
→ International caes (International does not refer to the source!!! It means the case itself, e.g. a
party lives in NL, one lives in Germany; source may well be international because of the fact of
the case) International refers to the internationality of the case, rather than the source where the
law comes from
→ Law (in the strict sense of law, rather than custom)
- Also known as conflict of laws (esp. In common law countries, they use this name
instead)
Questions that we deal with in this context:
Example 1: Football supporters from the NL go to Italy for a football trip, but there was a riot in
Rome, damage was done in different shops. Shop owners in Italy would like to bring the football
supporters to court. But which court? Would that be in Italy or in the NL where the defendants
have the place of residence).
First question: Who has jurisdiction? Dutch of Italy? (Example one is more like which court can
you go to)
Second question: Someone who lives in the NL wishes to purchase a car in France. He wants
to go to France and buys a car to the NL. However, something was wrong with the car, he
wanted to return it. Which law determines what right you have to return it? (This case is about
which law is applicable to the parties involved)
Example 3: German employer sent someone to England on a short term contract. Once they
were in England, they got fired. Employees went to an English court and asked for
compensation; employers need to pay compensation to the employees. The English court’s
decision has validity but Germany has to recognise and enforce it because Germany has to say
that the employer has enough assets in Germany to compensate the employees.
Which Court? English court.
Which law applies? Is it recognised in another country?
Main subject areas
, 1. Jurisdiction/ competence of the court (french expression): Which court has the
competence to hear your case, whether the court has the right to hear your case; can
you bring your claim in front of that court; can the Dutch court issue and order with
respect to damages taken place in Nigeria.
We are only talking about international jurisdiction, not court of appeal/ or amsterdam or
rotterdam court. We are just talking about whether you can go to a Spanish court/ Dutch court.
Avoid competence because it’s a french translation; in EU/ American law, we use the phrase
jurisdiction; just because a court has jurisdiction, does not mean that it will apply its own law.
If you apply Dutch court, it doesn’t mean Dutch court will apply Dutch law; sometimes they will
have to apply the law of where the people come from. Make clear distinction between
jurisdiction and the applicable law.
2. Applicable law/ choice of law (in English, tend to use choice of law, express that
someone actually chose the law that is applicable)
3. Recognition and enforcement of judgments: Recognition of a foreign country judgment
4. Administrative cooperation (procedural, e.g. need to transfer decisions from one place to
another; cooperative existence. In the field of international child protection, we have a
central authority designated with certain tasks dealing with the protection of children. If
NL needs to contact Austria for their child protection system, the central authority of NL
will contact the central authority of Austria) Many instruments have systems in place to
deal with administrative cooperation. E.g. between courts; Belgian courts can contact
Spanish courts directly without going through administrative cooperation, we would refer
that to direct judicial cooperation.
5. Procedural law: Service / Evidence
→ A document in one particular court which has to be served on somebody in Slovenia, so
cross-border service of documents is allowed. Allow courts in different countries to gain those
documents in a safe and secured mechanism. Within the EU there are service regulations and
on an international level –service convention.
If proceedings are taking place in one jurisdiction but the evidence needed to continue the
procedure is perhaps located in Mexico. How does the South African court gain access to
evidence which is located in Mexico? There are also mechanisms available that allow for cross
border transfer of evidence.
This course will focus on 1-3.
Terminology
● Jurisdiction: ‘forum’
Which court is entitled to hear the case
- Forum delicti (the court of the place where the delict took place)
- Forum rei sitae (the court of the place where the property is located)
, - Choice of court clause (we choose which court has jurisdiction)
● Applicable law: ‘lex’
Which law does that court or party apply to determine the response to the question
- Lex loci delicti (law of the place where the delict took place)
- Lex rei sitae (law of the place where the property is located)
- Choice of law clause (we choose which law applies) Sometimes we have a choice of
court clause but don’t have a law clause or the other way around.
PIL main questions
1. Jurisdiction
2. Applicable law
3. Recognition and enforcement
4. Administrative cooperation
PIL is national law! From a national standpoint, PIL is regulated on a national basis. Historically
speaking, PIL is regulated on a national basis, so the rules will differ per country.
When we think about PIL, it is regulated on a national level; only when there is an international
instrument in the form of a for example international convention then we use them to resolve the
issues; if they are not available then we fall back to national rules.
Example: If Dutch court decides that there are no applicable international or European
instruments which regulate the question at hand, then reference will be made to the domestic
rule of PIL– may result in a situation where both Dutch and Belgian courts both deem
themselves not to have jurisdiction.
PIL is a national subject in essence, however, over the years we see increasing attention
being paid on a supranational level. PIL has been either europeanised within the EU or
internationalized in a global sense with the international convention.
Related subjects
Nationality law: PIL does not determine your nationality but it uses nationality as a connecting
factor.
, Immigration law: Whether you are legally able to be resident in a particular country; sometimes
we look into illegal status, sometimes we don’t
Comparative law: Consumer law as to which law we apply. Is the law more favorable to the
consumers? → To find out whether it is favorable, need to compare different countries
Interregional law: When the reference to the country does not solve the issue; e.g. reference to
NL does not always solve the issues, there are also Aruba, Curacao and Sint Marten.
Uniform private law: CISG – Regulates the sale of goods; when this convention applies,
remove the need to determine applicable law because it is applicable law! If things are unified,
then it’s applicable. If they are all the same, we don’t have the question of applicable law
because we only have one law.
Sources
We look to look at:
1. Jurisdiction
2. Applicable Law
3. Recognition and enforcement of judgment
4. Resolution: It was a national subject but overtime there are also international solutions.
Sources
1. EU instruments (mostly Regulations) → Not applicable outside EU but there are regional
instruments depending on the country of jurisdiction.
- Within the context of the EU, we also have Brussels conventions. Communities have an
impact on PIL but those instruments are of public international law nature, they are
conventions.
- Brussels 2B deals with issues of both jurisdiction and regulation and enforcement
- Brussels 1B regulations deals with issues of jurisdiction and regulation and enforcement
acorss civil and commercial matters (1B and 2B does not deal with applicable law)
- Rome 3 only deals with applicable law
2. International instruments (mostly conventions or treaties dealing with the concept of PIL)
- Either one particular topic, e.g. child protection (convention across the whole field) or
one only related to one particular topic (property convention, which only deals with
applicable law).
1 and 2 are supranational instruments. Originated from The Hague Convention.
3. National sources
- Statutes (e.g. Book 10 Dutch Civil Code)
- Unwritten law e.g. case law
- Principles and custom (e.g. restatement in the US)
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